Can a Texas county commissioners court set the work hours and holidays for road crew employees when the commissioners run the roads as ex officio road commissioners?

Texas AG Opinion JM-1070: Who Sets the Hours for County Road Crews?

Plain-English summary

The Castro County District Attorney asked the Attorney General a nuts-and-bolts question about how a small county runs its road department. Castro County uses what Texas law calls the "ex officio road commissioners" system. Under that setup, each member of the commissioners court personally acts as the road commissioner for his own precinct, taking charge of the teams, tools, and machinery and supervising road work there. The county had a personnel policy setting a normal 40-hour, Monday-through-Friday work week, and a question came up: with each commissioner running his own precinct's road crew, does the commissioners court as a whole still have the authority to set the working hours for road employees?

The Attorney General said yes. The opinion walked through how road authority is actually divided. Even in an ex officio road commissioner county, the big decisions, hiring road personnel, awarding road contracts, and buying equipment, are made by the commissioners court acting as a body, not by individual commissioners on their own. An individual commissioner can employ people for his precinct only with the court's approval, and the court can hire, contract, and buy equipment for a precinct even over that commissioner's objection. Individual commissioners have real day-to-day influence, but little standalone legal authority to bind the county.

Against that backdrop, the opinion looked at what powers the commissioners court clearly does hold over road employees. The court sets their compensation. An earlier opinion had concluded that sick leave, vacation, and paid holidays are a form of compensation, and that setting those is the sole province of the commissioners court. The court also controls the hiring of road employees. No statute spelled out, in so many words, who sets the work week for road employees. But the AG reasoned that the power to set hours and holidays follows naturally from the powers the court already has: if the court controls hiring, pay, sick leave, vacation, and paid holidays for all county and precinct employees, then it necessarily has the implied authority to set their working hours and holidays as well.

The opinion also distinguished an earlier ruling. A 1984 opinion had said the commissioners court cannot set working hours for elected county officials, because there is no general state law dictating office hours for those officials. Road employees are not elected officials, so that limitation did not apply. The bottom line: the commissioners court is authorized to set the working hours and holidays for road employees, even in an ex officio road commissioner county, under section 3.001(a) of article 6702-1.

Currency note

This opinion was issued in 1989. 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.

The county road statutes cited here as article 6702-1, V.T.C.S., and the compensation statute cited as Local Government Code section 152.011 (formerly V.T.C.S. article 3912k) have been amended and recodified since 1989. Federal wage-and-hour rules under the Fair Labor Standards Act, mentioned in the opinion, have also evolved. A county official dealing with a present-day question about road employees' hours, holidays, or overtime should check the current Local Government Code, current county-road statutes, and current FLSA rules rather than relying on the 1989 citations used here.

Who this opinion affected (as of 1989)

Commissioners courts running the ex officio road commissioner system: The opinion confirmed the court as a body could set the normal work week and holidays for road employees, even though each commissioner supervised road work in his own precinct.

County road employees: The opinion identified the commissioners court, not the individual precinct commissioner, as the body with authority over their hours, holidays, hiring, and pay.

Individual county commissioners: The opinion reinforced that a commissioner acting alone had substantial practical influence over precinct road work but little standalone legal authority to bind the county on hiring, contracts, or equipment.

Common questions

In an ex officio road commissioner county, does the commissioners court still set road employees' hours?
Yes. The Attorney General concluded the commissioners court has implied authority to establish working hours and holidays for road employees under section 3.001(a) of article 6702-1, even where individual commissioners supervise road work in their precincts.

Why did the AG find this power when no statute states it directly?
Because the commissioners court already controls hiring road employees, setting their compensation, and determining their sick leave, vacation, and paid holidays. The opinion reasoned that the authority to set working hours and holidays follows necessarily from those established powers.

Can an individual commissioner set the rules for his precinct's road crew on his own?
Not on the big decisions. Hiring road personnel, awarding contracts, and buying equipment are done by the commissioners court acting as a body. A commissioner can employ people for his precinct only with the court's approval, and the court can act even over his objection.

Does this power extend to setting hours for elected county officials?
No. A separate 1984 opinion concluded the commissioners court is not authorized to set working hours for elected county officials, because no general state law dictates their office hours. That opinion did not control here because road employees are not elected officials.

Background and statutory framework

The Castro County District Attorney asked whether the commissioners court is authorized to establish working hours and holidays for road employees in a county that has ex officio road commissioners. The county's 1983 personnel policy applied to all county employees and set a normal work week of 40 hours, eight hours per day Monday through Friday, with the responsible elected official determining reporting and leaving times. After the Fair Labor Standards Act was held applicable to counties (see Garcia v. San Antonio Metro. Transit Auth., 469 U.S. 528 (1985)), the court in 1986 adopted a policy to avoid overtime when possible and use compensatory time when feasible. See Attorney General Opinion JM-733 (1987). By resolutions in 1987 and 1989 the court adopted the system organizing its members as ex officio road commissioners under V.T.C.S. art. 6702-1, §§ 3.001-3.004.

Section 3.001(a) provides that in counties operating under sections 3.001-3.004, the members of the commissioners court are ex officio road commissioners of their respective precincts and, under the direction of the commissioners court, have charge of the teams, tools, and machinery of the county placed in their hands by the court, and superintend the laying out of new roads, the making or changing of roads, and the building of bridges under rules adopted by the court. Section 3.003(a) provides that, subject to authorization by the commissioners court, each ex officio road commissioner may employ persons for positions in the commissioner's precinct paid from county road and bridge funds, may discharge a county employee working in the precinct if paid from those funds, and has the duties of a supervisor of public roads under section 2.009. Section 2.009 authorizes such a commissioner to supervise the public roads in his precinct and report their condition to each regular term of the court.

Article V, section 18, of the Texas Constitution provides that the commissioners court shall exercise the powers and jurisdiction over county business conferred by the Constitution and laws. In exercising that power, the court has implied authority to exercise broad discretion to accomplish the intended purposes. Cosby v. County Commissioners of Randall County, 712 S.W.2d 246 (Tex. App. - Amarillo 1986, writ ref'd n.r.e.); see generally Attorney General Opinion JM-801 (1987) (nepotism statute prevents an ex officio road commissioner from hiring the son of another road commissioner). Section 2.002 of article 6702-1 provides that the commissioners court shall order public roads laid out, discontinued, or altered when necessary, and may make and enforce reasonable rules for the construction and maintenance of public roads and hire the labor and purchase the machinery and equipment needed.

As a treatise on county law summarized (Brooks, County and Special District Law, 36 Tex. Pract. § 40.7, at 405 (1989)), these provisions essentially mean that county roads are opened, constructed, and maintained by the commissioners court as a whole and not by individual commissioners. A commissioner serving as ex officio road commissioner may employ personnel for his precinct subject to court approval (V.T.C.S. art. 6702-1, § 3.003(a)), but otherwise road contracts, equipment purchases, and personnel are handled by the court acting as a body. The court can employ personnel, execute contracts, and purchase equipment for a commissioner's precinct even over his objection (Attorney General Opinion V-1424 (1952)), and the employment of road personnel and execution of road contracts must be acted upon by the court as a body and cannot be delegated to another such as the county judge (Attorney General Opinion V-532 (1948)).

The commissioners court sets the amount of compensation for county and precinct employees paid wholly from county funds. Local Gov't Code § 152.011 (formerly V.T.C.S. art. 3912k, § 1). Attorney General Opinion MW-438 (1982) concluded that sick leave, vacation entitlement, and paid holidays for county and precinct employees constitute a form of compensation and that determining them is within the sole province of the commissioners court. Attorney General Opinion JM-182 (1984) concluded that the commissioners court is not authorized to establish working hours for elected county officials, noting there is no general state law dictating office hours or the work week for county officials and employees. While no express state law authorizes the court to determine working hours for road employees, the opinion reasoned that the court's control over hiring road employees, setting compensation, and determining sick leave, vacation, and paid holidays for all county and precinct employees necessarily gives it implied authority to establish working hours and holidays for road employees.

Citations

Statutory authority:

• V.T.C.S. art. 6702-1, §§ 2.002, 2.009, 3.001-3.004 (county road system; ex officio road commissioners; § 3.001(a), § 3.003(a))
• Tex. Const. art. V, § 18 (powers and jurisdiction of the commissioners court)
• Local Gov't Code § 152.011 (formerly V.T.C.S. art. 3912k, § 1) (commissioners court sets employee compensation)

Cases cited:

• Cosby v. County Commissioners of Randall County, 712 S.W.2d 246 (Tex. App. - Amarillo 1986, writ ref'd n.r.e.)
• Garcia v. San Antonio Metropolitan Transit Authority, 469 U.S. 528 (1985)

Secondary authority:

• Brooks, County and Special District Law, 36 Tex. Pract. § 40.7, at 405 (1989)

Attorney General opinions referenced:

• V-532 (1948); V-1424 (1952); MW-438 (1982); JM-182 (1984); JM-733 (1987); JM-801 (1987)

Source

• Landing page: https://www.texasattorneygeneral.gov/opinions/jim-mattox/jm-1070
• Original PDF: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1989/jm1070.pdf

Original opinion text

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

July 10, 1989

Honorable Jimmy F. Davis
Castro County District Attorney
Castro County Courthouse
Dimmitt, Texas 79027-2689

Opinion No. JM-1070

Re: Whether a commissioners court is authorized to set working hours and holidays for road employees in a county that has ex officio road commissioners (RQ-1710)

Dear Mr. Davis:

You ask whether the commissioners court of Castro County is authorized to establish working hours and holidays for road employees in a county that has ex officio road commissioners. You furnish us with a copy of the personnel policy adopted by the commissioners court in 1983. The policy adopted by the court applies "to all employees of Castro County," and provides the following work schedule:

1. The normal work week shall consist of 40 hours: eight hours per day, Monday through Friday.

2. The responsible elected official will determine the reporting time and leaving time for the employees so as to achieve maximum effectiveness of the county.

You advise that since the Fair Labor Standards Act was held applicable to counties,[1] the commissioners court in 1986 adopted a policy that the county would avoid overtime whenever possible and use compensatory time when feasible. See Attorney General Opinion JM-733 (1987). Additional information furnished by you reflects that the commissioners court on January 12, 1987, and again on January 9, 1989, adopted by resolution the system of organizing the commissioners court for road construction that constitutes members of the court as ex officio road commissioners. V.T.C.S. art. 6702-1, §§ 3.001-3.004. You advise that a question has arisen concerning the authority of the commissioners court to set the "normal work week" for road employees.

[1] See Garcia v. San Antonio Metro. Transit Auth., 469 U.S. 528 (1985).

Section 3.001(a) provides:

(a) In all counties [operating under sections 3.001-3.004] the members of the commissioners court are ex officio road commissioners of their respective precincts and under the direction of the commissioners court have charge of the teams, tools, and machinery belonging to the county and placed in their hands by the court. They shall superintend the laying out of new roads, the making or changing of roads, and the building of bridges under rules adopted by the court.

(Emphasis added.)

Additional authority granted a member of the court serving as an ex officio road commissioner is set forth in section 3.003(a), providing:

(a) Subject to authorization by the commissioners court, each ex officio road commissioner may employ persons for positions in the commissioner's precinct paid from the county road and bridge funds. Each ex officio road commissioner may discharge any county employee working in the commissioner's precinct if the employee is paid from county road and bridge funds. Each ex officio road commissioner also has the duties of a supervisor of public roads as provided by Section 2.009 of this Act.

Section 2.009 authorizes a commissioner serving as an ex officio road commissioner to supervise the public roads in his respective precinct. The commissioner shall report to each regular term of the commissioners court the condition of the roads and bridges in his precinct, the amount of money in the hands of overseers subject to being expended on roads, and the name of every overseer who has failed to perform his duty.

Article V, section 18, of the Texas Constitution provides that the commissioners court "shall exercise such powers and jurisdiction over all county business, as is conferred by this Constitution and the laws of the State, or as may be hereafter prescribed." In the exercise of power conferred upon the commissioners court, the court has implied authority to exercise a broad discretion to accomplish the purposes intended. Cosby v. County Commissioners of Randall County, 712 S.W.2d 246 (Tex. App. - Amarillo 1986, writ ref'd n.r.e.). See generally Attorney General Opinion JM-801 (1987) (nepotism statute prevents ex officio road commissioner from hiring son of another road commissioner).

Section 2.002 of article 6702-1 provides in pertinent part that:

(a) The commissioners court shall:
(1) order that public roads be laid out, opened, discontinued, or altered when necessary . . . . [and]

(b) The commissioners court may:
(1) make and enforce all reasonable and necessary rules and orders for the construction and maintenance of public roads except as prohibited by law;
(2) hire the labor and purchase the machinery and equipment needed to construct and maintain public roads.

In Brooks, County and Special District Law, 36 Tex. Pract. § 40.7, at 405 (1989), the following comment is made relative to the foregoing provisions of section 2.002:

These provisions essentially mean that the county roads are open, constructed, and maintained by the commissioners court as a whole and not by individual county commissioners. However, county commissioners serving as ex officio road commissioners may employ personnel for their precinct subject to commissioners court approval. [V.T.C.S. art. 6702-1, § 3.003(a).] Otherwise, all road contracts, purchases of road equipment and materials, and the employment of personnel are consummated by actions of the commissioners court acting as a body. In practice, however, individual commissioners have substantial influence over contracts awarded, personnel hired, and the purchase of road material. They do not, however, have any authority to legally bind the county for the most part. The commissioners court can employ personnel, execute contracts, and purchase equipment for a commissioner's precinct over his objection. [Attorney General Opinion V-1424 (1952).] The employment of road personnel and the execution of road contracts must be acted upon by the commissioners court as a body and is an authority that cannot be delegated to another such as the county judge. [Attorney General Opinion V-532 (1948).] In short, even though each county commissioner is responsible for supervising road work in his precinct and keeping himself informed as to road conditions, he generally has little further authority.

The commissioners court sets the amount of compensation for county and precinct employees paid wholly from county funds. Local Gov't Code § 152.011 (formerly V.T.C.S. art. 3912k, § 1). In Attorney General Opinion MW-438 (1982) it was concluded that sick leave benefits, vacation entitlement and paid holidays for county and precinct employees constitute a form of compensation (under then article 3912k, V.T.C.S.) and that the determination of same is within the sole province of the commissioners court.

In Attorney General Opinion JM-182 (1984) it was concluded that the commissioners court is not authorized to establish working hours for elected county officials. In that opinion it was stated that there is no general state law which dictates office hours or the work week to be observed by county officials and employees. While there is no express state law authorizing the commissioners court to determine the working hours for road employees, we believe the control granted the commissioners court in the matters of hiring road employees, setting compensation, determining sick leave, vacation entitlement and paid holidays for all county and precinct employees necessarily gives the commissioners court implied authority to establish working hours and holidays for road employees.

SUMMARY

The commissioners court is authorized to determine the working hours and holidays for road employees in a county that operates under the ex officio road commissioners system pursuant to section 3.001(a) of article 6702-1, V.T.C.S.

JIM MATTOX
Attorney General of Texas

MARY KELLER
First Assistant Attorney General

LOU MCCREARY
Executive Assistant Attorney General

JUDGE ZOLLIE STEAKLEY
Special Assistant Attorney General

RICK GILPIN
Chairman, Opinion Committee

Prepared by Tom G. Davis
Assistant Attorney General