Can a Texas county official close the office for bad weather and still pay employees?

Texas AG Opinion JC-0131: County Office Closures, Employee Pay, and the Auditor's Duty

Plain-English summary

The Colorado County Auditor asked the Attorney General three related questions. Can a county official close the office for part or all of a day because of bad weather, repairs, and the like? If so, can employees be paid for the time they did not work, or must they charge it to vacation or comp time? And can the county treasurer or auditor refuse to approve or pay an employee's salary when the time sheet shows work but the treasurer or auditor suspects or knows the office was closed?

On the first question, the Attorney General concluded that, absent an applicable law saying otherwise, each county official has the implied authority to set the hours of the official's own office and therefore to close it for reasons like bad weather or repairs. The commissioners court sets county compensation, but generally cannot set the office hours of independent county officials and their employees. A few statutes let larger or civil-service counties regulate hours, but none applied to Colorado County, so the default rule (each officer controls the working conditions of the officer's own employees, as long as the office can still perform its duties) governed.

On the second question, the opinion concluded that the power to close the office includes the power to keep paying employees for the time lost. Once salaries are set, they cannot be reduced outside the regular budget adoption and amendment process, so neither the commissioners court nor the treasurer nor the auditor may dock pay or require employees to use leave time for an authorized closure.

On the third question, the opinion concluded that neither the treasurer nor the auditor may withhold approval or payment in that situation. Both officers help police county finances and may decline doubtful or illegal payments, but where an employee's right to the salary is established as a matter of law (as it is when an authorized closure has occurred and the salary is set), their duty to approve and pay is ministerial, not discretionary. So they cannot second-guess an officer-approved closure by withholding pay.

Currency note

This opinion was issued in 1999. 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.

Common questions

Can a Texas county official close the office for bad weather or repairs?
Yes. The opinion concluded that, absent a law to the contrary, an elected or appointed county official has the authority to close the official's office for part or all of one or more days for reasons such as bad weather and repairs.

Can the commissioners court set the hours for all county offices?
Generally no. The opinion explained that, except where a specific statute applies (such as in very large or civil-service counties), the commissioners court cannot set the office hours of independent county officials; each officer sets the hours of the officer's own office.

Do employees still get paid when the office closes for weather?
Yes. The opinion concluded the officer may authorize employees to be paid for the time they were unable to work, and that set salaries cannot be reduced outside the regular budget process, so the time need not be charged to vacation or comp time.

Can the treasurer or auditor refuse to pay salary if they think the employee didn't work?
No, not for an officer-approved closure. The opinion concluded that where the right to the salary is established as a matter of law, the treasurer's and auditor's duty to approve and pay is ministerial, so they may not withhold approval or payment.

When does the auditor have discretion to refuse a salary warrant?
The opinion explained that the auditor's duty to countersign is discretionary when the right to payment is genuinely doubtful (a difficult legal question), but ministerial when the right to payment is established as a matter of law, citing Smith v. McCoy and related authorities.

Background and statutory framework

The opinion started from the rule that county officers have only the powers expressly conferred or necessarily implied by the constitution and statutes (Crosthwait v. State; Canales v. Laughlin; Abbott v. Pollock), and that neither the commissioners court nor other officers may usurp the duties of independent county officials (Pritchard & Abbott v. McKenna). Section 152.011 of the Local Government Code gives the commissioners court authority over compensation and allowances (with exceptions in section 152.017), which prior opinions read broadly to cover benefits like leave and paid holidays, but not the authority to set other officials' office hours. Statutes letting a commissioners court regulate hours (section 157.021(a) for counties of 355,000 or more; section 158.035(a) for civil-service counties) did not apply. Drawing on a line of opinions (including LO-94-082, JM-440, JM-182, M-1197, C-350, and O-6679), the opinion held each officer sets the officer's own office hours and that salaries, once set, cannot be reduced for closures except through the budget process.

On the treasurer's and auditor's roles, the opinion described the treasurer as the chief custodian of county funds under article XVI, section 44(a) of the Constitution and sections 113.001 and 113.041 of the Local Government Code, with a ministerial duty to pay compliant checks but discretion to decline payments of doubtful legality (section 113.041(d); McDonald v. Farmer; Walker v. Barnard). The auditor has oversight of county finances under sections 112.006 and 113.043, and its duty to countersign salary warrants is discretionary only when the right to payment is genuinely doubtful and ministerial when established as a matter of law (Smith v. McCoy; Crider v. Cox; Commissioners Court of Harris County v. Fullerton; Jackson v. Leonard; AG Opinions JM-192, M-40, JM-1186, with the contrasting O-6624). Because an authorized closure leaves the salary right established as a matter of law, the duty to approve and pay was ministerial.

Citations

Constitutional provisions and statutes:

• Tex. Const. art. XVI, § 44(a)
• Tex. Loc. Gov't Code Ann. §§ 112.006, 113.001, 113.041(a), (b), (c), (d), 113.043, 152.011, 152.017, 157.021(a), 158.035(a) (Vernon 1999)

Cases:

• Crosthwait v. State, 138 S.W.2d 1060 (Tex. 1940)
• Canales v. Laughlin, 214 S.W.2d 451 (Tex. 1948)
• Abbott v. Pollock, 946 S.W.2d 513 (Tex. App.-Austin 1997, writ denied)
• Pritchard & Abbott v. McKenna, 350 S.W.2d 333 (Tex. 1961)
• McDonald v. Farmer, 56 S.W. 555 (Tex. Civ. App.-Galveston 1900, no writ)
• Walker v. Barnard, 27 S.W. 726 (Tex. Civ. App.-San Antonio 1894, writ ref'd)
• Smith v. McCoy, 533 S.W.2d 457 (Tex. Civ. App.-Dallas 1976, writ dism'd w.o.j.)
• Crider v. Cox, 960 S.W.2d 703 (Tex. App.-Tyler 1997, writ denied)
• Commissioners Court of Harris County v. Fullerton, 596 S.W.2d 572 (Tex. Civ. App.-Houston [1st Dist.] 1980, writ ref'd n.r.e.)
• Jackson v. Leonard, 578 S.W.2d 879 (Tex. Civ. App.-Houston [14th Dist.] 1979, writ ref'd n.r.e.)

Prior Attorney General materials referenced: M-910 (1988); MW-438 (1982); LO-96-007; JM-1099 (1989); JM-521 (1986); LO-94-082; JM-440 (1986); JM-182 (1984); M-1197 (1972); C-350 (1964); O-6679 (1945); H-1148 (1978); H-171 (1973); WW-430 (1958); JM-192 (1984); M-40 (1967); JM-1186 (1990); LO-98-103; LO-93-91; O-6624 (1945).

Source

• Landing page: https://www.texasattorneygeneral.gov/opinions/john-cornyn/jc-0131
• Original PDF: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1999/jc0131.pdf

Original opinion text

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

OFFICE OF THE ATTORNEY GENERAL, STATE OF TEXAS
JOHN CORNYN

October 22, 1999

Ms. Raymie Kana
Colorado County Auditor
400 Spring Street, Third Floor
Columbus, Texas 78934

Opinion No. JC-0131

Re: Authority of a county official to close county office for all or part of a day, and related questions (RQ-0068-JC)

Dear Ms. Kana:

You ask whether an elected or appointed county official has the authority to close the official's office for part or all of one or more days on account of bad weather, repairs, and the like. You also ask whether county employees in that official's office may be paid for the time they did not work because of an office closure, or whether they must charge the time to available vacation or compensatory time. Finally, you ask whether the county treasurer or county auditor may withhold approval or payment of an employee's salary where the employee's time sheet indicates that the employee worked, but where the treasurer or auditor strongly suspects or knows that the employee did not work because of an office closure.

The authority of a county officer is limited to those powers expressly conferred by statute or constitution or necessarily implied therefrom. Crosthwait v. State, 138 S.W.2d 1060, 1061 (Tex. 1940). Your first two questions require us to determine whether county officers have the express or necessarily implied authority to close their offices and to authorize employees to receive regular pay for the time they did not work because of the closure.

Section 152.011 of the Local Government Code requires a county commissioners court, with certain exceptions, to "set the amount of the compensation, office and travel expenses, and all other allowances for county and precinct officers and employees who are paid wholly from county funds." TEX. LOC. GOV'T CODE ANN. § 152.011 (Vernon 1999); see id. § 152.017 (providing that section 152.011 does not apply to county auditor, district attorney's office, certain judges, and others). This office has construed section 152.011 broadly to find that a commissioners court has the authority to confer employment benefits upon county officers and employees, including longevity pay, vacation leave, sick leave, and paid holidays. See, e.g., Tex. Att'y Gen. Op. Nos. M-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).

However, the authority of a commissioners court to set county compensation does not include the authority to set the office hours of other county officials and their employees. Several laws with limited application allow a commissioners court to set the office hours of county employees. For example, in a county with a population of 355,000 or more, the commissioners court is expressly authorized by statute to "adopt and enforce uniform rules on the hours of work of department heads, assistants, deputies, and other employees whose compensation is set or approved by the court." TEX. LOC. GOV'T CODE ANN. § 157.021(a) (Vernon 1999) (emphasis added); see also id. § 158.035(a) (adoption of working conditions in civil service counties). But no such specific statute applies to Colorado County, and no state law of general application dictates the office hours to be observed by county officials and their employees or allows the commissioners court to establish the hours for all county offices.

In the absence of such a law this office has concluded that each county official has the implied authority to set the working conditions for his or her own employees, and as a general rule, neither the commissioners court nor other officers may set working conditions for other offices. See Tex. Att'y Gen. Op. Nos. JM-1099 (1989) at 4 ("The powers of county officers, including the county sheriff, over personnel matters is also quite extensive, subject to appropriate constitutional and statutory restraints."); JM-521 (1986) at 3 (commissioners court may not set the working conditions of other county officials).

Thus, opinions of this office have said that a commissioners court has no authority to set the office hours of district and county clerks, see Tex. Att'y Gen. LO-94-082 at 2; to set the office hours of the county auditor, see Tex. Att'y Gen. Op. No. JM-440 (1986) at 2; to order offices of elected county officials to be open at lunch, see Tex. Att'y Gen. Op. No. JM-182 (1984) at 3; or to set the office hours of justices of the peace, see Tex. Att'y Gen. Op. No. M-1197 (1972) at 1-2. Other opinions have said that a constitutional county office may close on Saturday without consent of commissioners court, see Tex. Att'y Gen. Op. No. C-350 (1964) at 2, and that a county auditor may not make a deduction from a county officer's salary for failing to keep his office open on Saturday, see Tex. Att'y Gen. Op. No. O-6679 (1945) at 2.

In our view, the opinions prohibiting a commissioners court from setting all county office hours remain correct. County commissioners, like other county officers, have only the powers expressly conferred by the Texas Constitution or statutes or necessarily implied therefrom. See Canales v. Laughlin, 214 S.W.2d 451, 453 (Tex. 1948); Abbott v. Pollock, 946 S.W.2d 513, 517 (Tex. App.-Austin 1997, writ denied). Neither the commissioners court nor any county officers may interfere with or usurp the duties or performance of independent county officials and their employees. Pritchard & Abbott v. McKenna, 350 S.W.2d 333, 335 (Tex. 1961); Abbott, 946 S.W.2d at 517. No law applicable to Colorado County establishes who may set county office hours generally. In such case, each county officer has the implied authority to set the hours of his or her own office, subject to the requirement that the hours enable the office to perform its constitutional and statutory duties. See Tex. Att'y Gen. Op. No. JM-1099 (1989) at 4. Accordingly, we conclude that in the absence of an applicable law to the contrary, an elected or appointed county official has the authority to close the official's office for part or all of one or more days on account of bad weather, repairs, and the like.

We also conclude that the power of a county officer to close his or her office includes the power to authorize employees to be paid for the time they were unable to work because of an office closure. In Attorney General Letter Opinion 94-082 this office considered whether a commissioners court could reduce the pay of district and county clerk employees where the clerk's office shortened its work day. See Tex. Att'y Gen. LO-94-082, at 1. The office was previously open on weekdays from 8 a.m. to 5 p.m., then changed to 8:30 a.m. to 4:30 p.m. with no closure for lunch hour. See id. The opinion concludes that the commissioners court could not set the hours that the clerk's office must be open and could not reduce the salaries of the clerk and the clerk's deputies except in accordance with the regular statutory budget procedure. See id. at 2.

Similarly, in Attorney General Opinion O-6679 a county auditor asked whether he could make deductions from a county officer's salary if the officer refused to open his or her office on Saturdays. See Tex. Att'y Gen. Op. No. O-6679 (1945) at 1. In that case, the commissioners court had ordered a six-day work week for county offices. See id. Finding no law that required county offices to be open to the public a certain amount of time, other than a reasonable time, nor any law that authorized the commissioners court to set county office hours, the opinion concludes: "The County Auditor has only such powers and duties as are conferred upon him by the laws of this State and we know of no provision which gives the County Auditor the power or duty to deduct from the salary check (an incident to the office) of a county officer any amount for the reason that said officer failed to keep his office open to the public six 8-hour days (or 48 hours) per week." Id. at 2.

Thus, once the salaries of county officers and employees are set, the salaries may not be reduced, outside of the regular budget adoption and amendment process, to account for office closures. Accordingly, we conclude that if a county officer closes his or her office for a period that is normally a part of a regular work period for the types of reasons about which you ask - bad weather, repairs, and the like - the officer and the office's employees may be paid for that time, and neither the commissioners court nor the county treasurer nor the county auditor may reduce the officers' or employees' pay or require that the time be charged to leave time.

Finally, we consider whether a county treasurer or county auditor may withhold approval or payment of an employee's salary for time the treasurer or auditor strongly suspects or knows that the employee did not work because of an officer-approved office closure. We conclude that neither a county treasurer nor a county auditor may do so.

Both the treasurer and the auditor are part of the checks and balances of a county's fiscal administration and are charged in some way with ensuring the proper and legal expenditure of public funds. The Texas Constitution establishes the office of the county treasurer, but gives the Legislature the responsibility to prescribe the treasurer's duties. See TEX. CONST. art. XVI, § 44(a). The county treasurer is the chief custodian of county funds and disburses all money belonging to the county. TEX. LOC. GOV'T CODE ANN. §§ 113.001, .041(a) (Vernon 1999). Money may be withdrawn from the county treasury only upon a check or warrant drawn on the treasury by an official authorized to do so. Id. § 113.041(b), (c).

The treasurer is under a ministerial duty to pay a check presented to the treasurer that complies with the procedural requirements set out by statute, unless the treasurer doubts the legality or propriety of the check. "If the treasurer doubts the legality or propriety of an order, decree, certificate, or warrant presented to the treasurer for payment, the treasurer may not make the payment." Id. § 113.041(d). Instead, the treasurer must decline to pay the check and report the matter to the commissioners court for instructions. Id. Thus, courts and this office have said that while a treasurer's duty to pay a warrant is ministerial when the statutory requirements for payment have been met, the treasurer has discretion to deny payment if the treasurer doubts the validity of the payment. See McDonald v. Farmer, 56 S.W. 555, 556-57 (Tex. Civ. App.-Galveston 1900, no writ); Walker v. Barnard, 27 S.W. 726, 727-28 (Tex. Civ. App.-San Antonio 1894, writ ref'd); Tex. Att'y Gen. Op. Nos. H-1148 (1978) at 1; H-171 (1973) at 4-5; WW-430 (1958) at 5.

The duties of the county auditor similarly are ministerial under some circumstances and discretionary under others. The county auditor has general oversight authority over the books and records of county offices and is charged with the "strict enforcement of the law governing county finances." TEX. LOC. GOV'T CODE ANN. § 112.006 (Vernon 1999). Except for a check for jury service, "the county treasurer and the county depository may not pay a check or warrant unless it is countersigned by the county auditor to validate it as a proper and budgeted item of expenditure." Id. § 113.043. Courts and this office have recognized the case of Smith v. McCoy, 533 S.W.2d 457 (Tex. Civ. App.-Dallas 1976, writ dism'd w.o.j.), as setting out the prevailing approach to the question of an auditor's duty to countersign a salary warrant. See, e.g., Crider v. Cox, 960 S.W.2d 703, 706 (Tex. App.-Tyler 1997, writ denied); Commissioners Court of Harris County v. Fullerton, 596 S.W.2d 572, 579 (Tex. Civ. App.-Houston [1st Dist.] 1980, writ ref'd n.r.e.); Tex. Att'y Gen. Op. No. JM-1186 (1990) at 3; Tex. Att'y Gen. LO-98-103, at 2 n.4; LO-93-91, at 4-5.

In Smith v. McCoy the court considered whether a county auditor could withhold approval of back pay to deputy sheriffs who were reinstated following suspension. Smith, 533 S.W.2d at 458. The auditor was presented with a "difficult legal question," the court said, as to whether the deputies were entitled to back pay. Id. at 459. The court held that because the auditor is charged with the "[s]trict enforcement of the law governing county finances," the auditor's duty to countersign checks is discretionary, unless right to the payment is established as a matter of law. Id. "Evidence that appellees were suspended from their jobs and subsequently reinstated does not establish as a matter of law that they were entitled to compensation for the period of their suspension." Id. at 460. The auditor's ability to disapprove doubtful payments, the court said, is part of the statutory system of checks and balances that exists for the purpose of protecting county funds. Id. at 459. Where an individual's right to a salary is established as a matter of law, however, the auditor is under a ministerial duty to approve the payment. Id. at 460. In Attorney General Opinion JM-192 we explained:

[I]f the county employee, as a matter of right, is entitled to be paid a sum certain, the county auditor has a ministerial duty to co-sign the warrant and may be subject to a writ of mandamus to do so; however, if the auditor has reasonable grounds on which to question the salary payments, he may, in his discretion, refuse to co-sign the warrant, in which event the employee's remedy is a suit against the county rather than a mandamus action against the auditor.

Tex. Att'y Gen. Op. No. JM-192 (1984) at 2.

Accordingly, in Jackson v. Leonard, 578 S.W.2d 879 (Tex. Civ. App.-Houston [14th Dist.] 1979, writ ref'd n.r.e.), the court held that the county auditor had a ministerial duty to approve the payment of salary increases of justices of the peace where the increases had been awarded pursuant to the statutory grievance procedure, even though the auditor suspected that the increases were really to pay for office space. See Jackson, 578 S.W.2d at 881. The salaries had been set in accordance with the statutory requirements, which did not include discretionary approval by the auditor. See id. "It follows therefore that the auditor is not empowered to go behind the action of the salary grievance committee and question the mental processes behind such action or the motives thereof." Id. Thus, the court held, the auditor had a ministerial duty to approve payment of the salaries. See id. at 882.

Similarly, Attorney General Opinion M-40 concludes that where the commissioners court approved a salary increase for certain elected officials, and where the increases were within the legal limits, "the function of the county auditor in approving the payment of such salaries and in signing salary warrants is ministerial only." Tex. Att'y Gen. Op. No. M-40 (1967) at 6. And Attorney General Opinion JM-1186 concludes that while an auditor could require county constables to submit monthly documentation in support of their monthly requests for mileage reimbursement, "it is not generally within the province of the auditor to ensure that county officers and employees are complying with the duties of their office or employment imposed on them by law where such efforts are not necessary to the accomplishment of the auditor's statutory duties." Tex. Att'y Gen. Op. No. JM-1186 (1990) at 4. But see Tex. Att'y Gen. Op. No. O-6624 (1945) at 2 (concluding that county auditor may refuse to countersign salary warrant if he believes that employee is not performing work).

Because an elected or appointed county official has the authority to close the official's office for part or all of one or more days on account of bad weather, repairs, and the like, and to authorize employees to be paid for the time they were unable to work, the duty of a county treasurer and county auditor to approve salary payments in the event of such a closure is ministerial, not discretionary. As we have said, the salaries of county officers and employees, with some exceptions, are set by the commissioners court. See TEX. LOC. GOV'T CODE ANN. § 152.011 (Vernon 1999). Neither the county treasurer nor the county auditor has the power to make deductions from salaries for the failure of a county officer to keep his or her office open for certain hours. See Tex. Att'y Gen. Op. No. O-6679 (1945) at 2. Thus, we conclude that neither the county treasurer nor the county auditor may withhold approval or payment of an employee's salary for time the treasurer or auditor suspects or knows that the employee did not work because of an officer-approved office closure.

SUMMARY

An elected or appointed county official has the authority to close the official's office for part or all of one or more days on account of bad weather, repairs, and the like, and to authorize employees to be paid for the time they were unable to work because of an office closure. Neither the county auditor nor the county treasurer may withhold approval or payment of an employee's salary for time the treasurer or auditor strongly suspects or knows that the employee did not work because of such an office closure.

JOHN CORNYN
Attorney General of Texas

ANDY TAYLOR
First Assistant Attorney General

CLARK KENT ERVIN
Deputy Attorney General - General Counsel

ELIZABETH ROBINSON
Chair, Opinion Committee

Barbara Griffin
Assistant Attorney General - Opinion Committee