Can a Texas commissioners court dock county clerk employees' pay for time off the clerk gave them during a weather emergency?

TX AG Opinion GA-0778: Can a commissioners court cut a county clerk's salary line to recoup pay for staff sent home in a storm?

Plain-English summary

A county criminal district attorney asked about a clash between two county powers. In August 2009 the Grayson County Clerk closed her office about thirty minutes early and dismissed several employees because of a thunderstorm and a resulting power outage in the courthouse. The Grayson County Commissioners Court, which runs a forty-hour-week uniform pay policy, refused to pay those employees for the short time they did not work. The question was whether the commissioners court could amend the county budget in the middle of the fiscal year to cut the clerk's office salary line item by an amount equal to the pay the employees would have received for that time.

The opinion explained the long-recognized tension between two authorities. An elected county officer, like the county clerk, has a "sphere of authority" within which she manages her own office without interference from the commissioners court, including near-absolute control over the tasks the Legislature assigned to her office and the implied authority to set working conditions for her own employees. Prior opinions had concluded that a county officer may close the office for part or all of a day for bad weather, repairs, and the like, and may let employees be paid for the time they could not work. On the other side, the commissioners court holds the county's budgetary power: under Local Government Code section 152.011 it sets compensation and allowances for county officers and employees paid from county funds, and under chapter 111 it may amend the budget during the year to transfer money from one budgeted item to another. So as a general matter, the commissioners court can make a midyear transfer that reduces a salary line item, subject to review for abuse of discretion.

The two powers met at a limit. A commissioners court may not use a budget transfer to prevent an elected officer from performing her required duties, and it generally may not second-guess an officer's decision to dismiss her employees or her judgment that doing so serves a public purpose. Applying that, the opinion concluded that a court would likely hold the Grayson County Commissioners Court may not transfer funds to cut the salary line item in order to deny the clerk's employees pay for the time the clerk sent them home during the storm, because that reduction would intrude on the clerk's sphere of authority. The opinion added that if a commissioners court believes an office closure shows the officer does not need all of her staff, its remedy is to use its budgetary authority to reallocate resources going forward, not to claw back the pay for that closure.

Currency note

This opinion was issued in 2010. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

Local Government Code sections 152.011, 152.013, and chapter 111, and the population-based budget provisions, may have been amended since 2010. Confirm the current statutes before relying on anything below.

Who this opinion affected (as of 2010)

Elected county clerks and other elected county officers: The opinion told them that their sphere of authority included closing the office for bad weather and paying staff for that time, and that a commissioners court could not use a midyear budget transfer to recoup that pay.

Commissioners courts: The opinion told them that their broad budget-amendment power (transferring funds and reducing salary line items, subject to abuse-of-discretion review) did not extend to clawing back pay for time an elected officer dismissed her own employees; their remedy for a perceived staffing surplus was prospective reallocation.

County employees in an elected officer's office: The opinion indicated that when their elected officer closed the office for a weather emergency and let them be paid, the commissioners court likely could not strip that pay by amending the budget.

Common questions

My county office closed early for a storm. Can the county dock our pay for that time?
According to this opinion, a court would likely hold the commissioners court could not amend the budget to deny pay for time the elected officer dismissed her employees during a weather emergency.

Doesn't the commissioners court control the budget?
Yes, it sets compensation under section 152.011 and may amend the budget midyear to transfer funds, subject to abuse-of-discretion review. But it cannot use that power to intrude on an elected officer's authority to manage and supervise her own office.

What is the elected officer's "sphere of authority"?
It is the area of office management the Legislature entrusted to the elected officer, where she has near-absolute control, including setting working conditions for her own employees and deciding to close the office for bad weather.

If the commissioners court thinks the office is overstaffed, what can it do?
The opinion said its remedy is to use its budgetary authority to reallocate county resources in the future, not to claw back pay for a past closure.

Background and statutory framework

The question turned on the tension between an elected county officer's authority and the commissioners court's role as the county's principal governing body (Comm'rs Court of Titus County v. Agan, 940 S.W.2d 77, 79 (Tex. 1997); Anderson v. Wood, 152 S.W.2d 1084, 1085 (Tex. 1941)). An elected officer has a sphere of authority to manage the office without interference, holding near-absolute sway over the tasks state law entrusts to the office and the implied authority to set working conditions for the office's employees (Pritchard & Abbott v. McKenna, 350 S.W.2d 333, 335 (Tex. 1961); Abbott v. Pollock, 946 S.W.2d 513, 517 (Tex. App.—Austin 1997, pet. denied); Hooten v. Enriquez, 863 S.W.2d 522, 531-32 (Tex. App.—El Paso 1993, no writ) (quoting Familias Unidas v. Briscoe, 619 F.2d 391, 404 (5th Cir. 1980)); Tex. Const. art. V, § 20; Tex. Loc. Gov't Code Ann. § 82.005(a), (c) (Vernon 2008); id. ch. 151, subch. A). A court has placed implementation of matters like work hours and leave with the commissioners court while leaving the officer's power to appoint, discharge, and supervise deputies intact (State v. Hardy, 769 S.W.2d 353, 355 (Tex. App.—Houston [1st Dist.] 1989, no writ)).

The commissioners court sets compensation and allowances for county officers and employees paid wholly from county funds (Tex. Loc. Gov't Code Ann. § 152.011 (Vernon 2008); Renken v. Harris County, 808 S.W.2d 222, 226 (Tex. App.—Houston [14th Dist.] 1991, no writ)), and may set the county clerk's salary only at budget adoption (id. § 152.013(a)). For a county the size of Grayson County, the budget is prepared under chapter 111, subchapter A (id. §§ 111.001, 111.003(a)), and the court may amend the budget during the year to transfer an amount from one budgeted item to another (id. § 111.010(d); §§ 111.031, .061; Griffin v. Birkman, 266 S.W.3d 189, 196, 201 (Tex. App.—Austin 2008, pet. denied)). Such a transfer that reduces a salary line item is subject to abuse-of-discretion review, but a commissioners court may not, by transferring funds, prevent an officer from performing required duties or second-guess the officer's dismissal of employees and judgment that it serves a public purpose (Tex. Const. art. III, § 52(a)). The opinion concluded a court would likely hold the commissioners court could not transfer funds to reduce the salary line item to deny the clerk's employees pay for the storm closure, because that would intrude on the clerk's sphere of authority.

Citations

Statutes:

• Tex. Const. art. V, § 20; art. III, § 52(a)
• Tex. Loc. Gov't Code Ann. §§ 82.005(a), (c), 152.011, 152.013(a), 111.001, 111.003(a), 111.010(d), 111.031, .061; ch. 151, subch. A (Vernon 2008)

Cases:

• Comm'rs Court of Titus County v. Agan, 940 S.W.2d 77 (Tex. 1997)
• Anderson v. Wood, 152 S.W.2d 1084 (Tex. 1941)
• Pritchard & Abbott v. McKenna, 350 S.W.2d 333 (Tex. 1961)
• Abbott v. Pollock, 946 S.W.2d 513 (Tex. App.—Austin 1997, pet. denied)
• Hooten v. Enriquez, 863 S.W.2d 522 (Tex. App.—El Paso 1993, no writ)
• Familias Unidas v. Briscoe, 619 F.2d 391 (5th Cir. 1980)
• State v. Hardy, 769 S.W.2d 353 (Tex. App.—Houston [1st Dist.] 1989, no writ)
• Renken v. Harris County, 808 S.W.2d 222 (Tex. App.—Houston [14th Dist.] 1991, no writ)
• Griffin v. Birkman, 266 S.W.3d 189 (Tex. App.—Austin 2008, pet. denied)

Source

• Landing page: https://www.texasattorneygeneral.gov/opinions/greg-abbott/ga-0778
• Original PDF: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/2010/ga0778.pdf

Original opinion text

Best-effort transcription from a scanned PDF. Minor errors may remain — the linked PDF is authoritative.

ATTORNEY GENERAL OF TEXAS

GREG ABBOTT

May 25, 2010

The Honorable Joseph D. Brown
Grayson County Criminal District Attorney
Grayson County Justice Center, Suite 116A
Sherman, Texas 75090

Opinion No. GA-0778

Re: Whether a commissioners court may amend the county budget to reduce salaries for the county clerk's office because the clerk closed her office temporarily for a weather-related emergency (RQ-0834-GA)

Dear Mr. Brown:

You state that in August of 2009 the Grayson County Clerk closed her office approximately thirty minutes early and dismissed several employees for that time period because of a thunderstorm and resulting power outage in the county courthouse.¹ The Grayson County Commissioners Court, which has implemented a forty-hour work week uniform pay policy, has refused to pay these employees for the time that they did not work. Request Letter at 1. In connection with these facts, you ask the following question:

May the Grayson County Commissioners Court, in the middle of a budget year, amend the budget of the Grayson County Clerk to reduce that office's salary line item in an amount equal to the pay which was due to county clerk employees for a time period the employees did not work at the direction of the elected county clerk because of a weather related emergency?

Id.

Your question raises an issue addressed in attorney general opinions and in case law—the tension between the authority of elected county officers and the commissioners court's authority as the county's principal governing body. See Comm'rs Court of Titus County v. Agan, 940 S.W.2d 77, 79 (Tex. 1997); see also Anderson v. Wood, 152 S.W.2d 1084, 1085 (Tex. 1941) (discussing commissioners court's authority to contract for county). Elected county officers have a "sphere of authority" within which they may manage their offices without interference from the commissioners court. See Pritchard & Abbott v. McKenna, 350 S.W.2d 333, 335 (Tex. 1961); Abbott v. Pollock, 946 S.W.2d 513, 517 (Tex. App.—Austin 1997, pet. denied); Tex. Att'y Gen. Op. No. GA-0332 (2005) at 3. They hold "virtually absolute sway over the particular tasks or areas of responsibility entrusted to [them] by state statute." Hooten v. Enriquez, 863 S.W.2d 522, 531 (Tex. App.—El Paso 1993, no writ) (quoting Familias Unidas v. Briscoe, 619 F.2d 391, 404 (5th Cir. 1980)). Prior opinions have concluded that the sphere of authority of an elected county officer, such as the county clerk, includes the "implied authority to set the working conditions for his or her own employees." Tex. Att'y Gen. Op. No. JC-0131 (1999) at 2. The Legislature has vested the county clerk, and not the commissioners court, with the exclusive authority to dictate to his or her deputies the responsibility of carrying out the clerk's constitutional and statutory duties. See Hooten, 863 S.W.2d at 532. See also TEX. CONST. art. V, § 20 (creating the county clerk's office); TEX. LOC. GOV'T CODE ANN. § 82.005(a), (c) (Vernon 2008) (providing that a deputy clerk appointed by the county clerk "acts in the name of the county clerk and may perform all official acts that the county clerk may perform"), TEX. LOC. GOV'T CODE ANN. ch. 151, subch. A (Vernon 2008) (providing that the commissioners court will authorize the number of employees to be appointed by a district, county, or precinct officer, but the court may not attempt to influence the appointment of any person to an employee position).

This office has stated that a county officer may close his or her "office for part or all of one or more days on account of bad weather, repairs, and the like" and may authorize employees "to be paid for the time they were unable to work because of an office closure." Tex. Att'y Gen. Op. No. JC-0131 (1999) at 2-3; see Tex. Att'y Gen. Op. Nos. GA-0303 (2005) (concluding that a justice of the peace was authorized to close his office for the official day of mourning honoring former President Ronald Reagan and to allow his clerk to take the day off); JC-0239 (2000) at 4 (concluding that an elected county official may close the office and dismiss employees to provide them extra holiday time); JC-0131 (1999) at 2 (concluding that in the absence of a statute specifically authorizing the commissioners court to establish office hours for county officials and their employees, each county official may set working conditions for his or her own employees).² We find no court that has held otherwise.³

The commissioners court's budgetary power over the expenses of elected county officers does, however, create some tension with an elected county officer's sphere of authority. See TEX. LOC. GOV'T CODE ANN. § 152.011 (Vernon 2008) (authorizing commissioners court to set compensation, expenses, and all other allowances for county and precinct officers and employees paid wholly from county funds); Renken v. Harris County, 808 S.W.2d 222, 226 (Tex. App.—Houston [14th Dist.] 1991, no writ) (stating that the commissioners court exercises budgetary powers over the positions in the constable's office). The commissioners court is charged with setting the compensation, office and travel expenses, and other allowances for county and precinct officers and employees paid wholly from county funds, including the compensation, office and travel expenses of the county clerk. See TEX. LOC. GOV'T CODE ANN. § 152.011 (Vernon 2008); Tex. Att'y Gen. Op. No. DM-492 (1998) at 8. Pursuant to Local Government Code section 152.011, the commissioners court has implied authority to confer upon county officers and employees such benefits as longevity pay, vacation leave, sick leave, and paid holidays, and to premise full salary and benefits upon a forty-hour work week. See Tex. Att'y Gen. Op. Nos. JC-0239 (2000) at 5 (forty-hour work week), JM-910 (1988) at 4 (vacation and sick leave), MW-438 (1982) at 2 (paid holidays); Tex. Att'y Gen. LO-96-007, at 2 (longevity pay).

Funds for compensating county and precinct officers and employees are included in the county budget, which for counties the size of Grayson County is prepared in accordance with Local Government Code chapter 111, subchapter A.⁴ See TEX. LOC. GOV'T CODE ANN. §§ 111.001 (Vernon 2008) (stating that subchapter A applies only to a county with a population of 225,000 or less that does not operate under subchapter C);⁵ 111.003(a) (providing that the "county judge . . . shall prepare a budget to cover all proposed expenditures of the county government for the succeeding fiscal year"). The commissioners court may amend the budget during the fiscal year to transfer an amount budgeted for one item to another budgeted item. Id. § 111.010(d); see also Griffin v. Birkman, 266 S.W.3d 189, 201 (Tex. App.—Austin 2008, pet. denied) (holding that the commissioners court was authorized to transfer funding for emergency mental health services from a constable's office to the sheriff's office during the fiscal year).⁶ Thus, as a general matter, the commissioners court has authority to make a budget transfer that would result in the reduction of the salary line item allocating compensation to a county officer's employees, subject to review for abuse of discretion.⁷ See Griffin, 266 S.W.3d at 196. However, a county commissioners court "may not, by transferring funds from an elected county officer's budget, thereby prevent the officer from performing his or her required duties." Tex. Att'y Gen. Op. No. GA-0037 (2003) at 5. Further, "a county commissioners court generally may not second-guess a county officer's use of county employees to accomplish the officer's constitutional or statutory duties [or] the officer's determination that dismissing county employees under his or her supervision . . . serves a public purpose or constitutes a legitimate use of official, work time." Tex. Att'y Gen. Op. No. JC-0239 (2000) at 5.

You have stated that the Grayson County Commissioners Court has refused to pay these employees for the time that they did not work, and you ask whether the Commissioners Court may amend the budget during the fiscal year to accomplish this purpose. See Request Letter at 1. While a commissioners court may amend the budget in midyear to make a transfer of funds that would result in the reduction of the salary line item for county employees compensated under Local Government Code section 152.011, it may not adopt such an amendment to recoup payment to employees for the time period that the clerk dismissed them, because such a change would interfere with an elected officer's authority to manage his or her office and supervise the employees. See Tex. Att'y Gen. Op. No. JC-0131 (1999) at 5 (concluding that if a county officer closes her office for part of a work day because of bad weather, repairs, and the like, the employees may be paid for that time and the commissioners court may not reduce the employees' pay). "If a county commissioners court infers from a county officer's office closure or allocation of county resources that the elected county officer does not require all of the full-time employees assigned to that office, the commissioners court's remedy is to apply its budgetary authority to reallocate county resources" in the future. Tex. Att'y Gen. Op. No. JC-0239 (2000) at 5. Based on the information provided to us, we believe that a court would likely conclude that the Grayson County Commissioners Court may not transfer funds to reduce the salary line item to deprive the clerk's employees of payment for the time period that the clerk dismissed them due to a thunderstorm and power outage in the county courthouse, because such a reduction would intrude upon the elected county clerk's sphere of authority.

[Footnote 1: Request Letter at 1 (available at http://www.texasattorneygeneral.gov).]

[Footnote 2: Allowing employees to take time off must, of course, serve a public purpose within Texas Constitution article III, section 52, which provides that the Legislature shall have no power to authorize any county to grant public money to any individual. See TEX. CONST. art. III, § 52(a); see also Tex. Att'y Gen. Op. No. JC-0239 (2000) at 4. Whether a particular office closure serves a public purpose must be determined in the first instance by the public official, whose decision is subject to judicial review. See Tex. Att'y Gen. Op. No. JC-0239 (2000) at 4.]

[Footnote 3: A Texas court has stated that "in order to standardize and effectuate such matters as hours of work, vacations, holidays, sick leave, compensation, etc., the legislature has seen fit to place the responsibility of their implementation with the Commissioners Court, as specified by the legislature. TEX. LOC. GOV'T CODE ANN. chs. 151-158 (Vernon 1988)." State v. Hardy, 769 S.W.2d 353, 355 (Tex. App.—Houston [1st Dist.] 1989, no writ). The Hardy court also said that a statutory grievance procedure available to deputy district clerks did not take away the district clerk's powers to appoint, discharge and supervise his deputies. See id. Hardy does not address the question raised by this opinion request.]

[Footnote 4: The population of Grayson County was 110,595 in 2000. See BUREAU OF THE CENSUS, U.S. DEP'T OF COMMERCE, 2000 CENSUS OF POPULATION, available at http://quickfacts.census.gov/qfd/states/48/48181.html (State and County Quick Facts) (last visited Mar. 9, 2010).]

[Footnote 5: Chapter 111, subchapter B, applies only to a county with a population of more than 225,000 that does not operate under subchapter C, and subchapter C provides an alternate method of budget preparation in counties with a population of more than 125,000. See TEX. LOC. GOV'T CODE ANN. §§ 111.031, .061 (Vernon 2008).]

[Footnote 6: The county at issue in Griffin was in the population group subject to Local Government Code sections 111.031-.045, but the section addressed was virtually identical with section 111.010(d). See Griffin, 266 S.W.3d at 194, 203.]

[Footnote 7: The commissioners court may set the county clerk's salary only during the budget adoption process. See TEX. LOC. GOV'T CODE ANN. § 152.013(a) (Vernon 2008); Tex. Att'y Gen. Op. No. GA-0037 (2003) at 5.]

SUMMARY

Based on the information provided to us, we believe that a court would likely conclude that the Grayson County Commissioners Court may not transfer funds to reduce the salary line item to deprive the clerk's employees of payment for the time period that the clerk dismissed them due to a thunderstorm and power outage in the county courthouse, because such a reduction would intrude upon the elected county clerk's sphere of authority.

Very truly yours,

GREG ABBOTT
Attorney General of Texas

ANDREW WEBER
First Assistant Attorney General

JONATHAN K. FRELS
Deputy Attorney General for Legal Counsel

NANCY S. FULLER
Chair, Opinion Committee

Susan L. Garrison
Assistant Attorney General, Opinion Committee