Can a Texas county let employees donate unused sick leave to a coworker who has run out?

Texas AG Opinion JM-1160: Can a County Grant Extra Sick Leave or Let Employees Pool It?

Plain-English summary

Smith County's criminal district attorney asked two related questions. First, may a county grant additional sick leave to an employee who has already used up their allotted leave? Second, may a county let its employees transfer or pool their unused sick leave for the benefit of a coworker who has run out?

The Attorney General treated sick leave as a form of compensation or allowance that the commissioners court controls under the Local Government Code, and worked through the constitutional limits on that power. On the first question, the opinion concluded a county could not grant sick leave retroactively (that is, extra leave to cover absences that had already happened), because the Texas Constitution bars a county from paying extra compensation, fees, or allowances to an employee after the fact. But the commissioners court could adopt sick-leave guidelines effective going forward, at any time during the year, and it would be permissible for one employee to end up with more sick leave than another as a result, so long as the guidelines weren't applied in a way that amounted to an abuse of discretion. On the second question, the opinion concluded a county could not authorize a sick-leave pool at all, retroactive or not, because a sick-leave pool is more than compensation, it is an administrative system for transferring leave between employees, and no statute gives counties that authority; a 1989 statute created a sick-leave pool specifically for state employees, but nothing extended that model to counties.

Currency note

This opinion was issued in 1990. 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.

Texas counties have since been given statutory authority to adopt sick-leave pools in some circumstances; readers should check the current Local Government Code rather than relying on this 1990 opinion's conclusion that no such authority existed at the time.

Who this opinion affected (as of 1990)

County commissioners courts: The opinion confirmed they could set prospective sick-leave guidelines for county employees at any time during the year, even if that produced different leave amounts for different employees, but could not grant leave retroactively or authorize employee-to-employee leave transfers absent a statute permitting it.

County employees who had exhausted their sick leave: The opinion meant that, absent new legislation, these employees could not receive donated leave from coworkers through a county-run pool, unlike state employees, who had a statutory pool available to them since September 1989.

Common questions

Could a Texas county in 1990 grant an employee extra sick leave after they'd already used theirs up?
No, not retroactively. The opinion held that granting sick leave to cover past absences would amount to unconstitutional retroactive compensation under article III, section 53 of the Texas Constitution.

Could a county set new, more generous sick-leave rules going forward?
Yes. The opinion concluded the commissioners court could adopt prospective sick-leave guidelines at any time during the year, and that different employees ending up with different amounts of leave under those guidelines was permissible, so long as it wasn't an abuse of discretion.

Could county employees donate unused sick leave to a coworker who had none left?
No, according to this opinion. It found no statute authorizing counties to create a sick-leave pool, unlike the sick-leave pool state law had just created for state employees in 1989.

Why couldn't the county just infer that power from its general authority to set employee compensation?
Because the opinion treated a sick-leave pool as more than compensation. It is an administrative system for moving leave from one employee's account to another's, which the commissioners court's general compensation-setting statute did not cover, and counties may only exercise powers the constitution or legislature has specifically given them or that can be reasonably inferred from a specific grant.

Background and statutory framework

Local Government Code section 152.011 (formerly V.T.C.S. article 3912k) directs the commissioners court to set the compensation, expenses, and other allowances for county employees paid from county funds, and the opinion noted that prior opinions (Attorney General Opinions JM-910 (1988) and H-860 (1976)) had already concluded sick-leave benefits count as "compensation . . . and all other allowances" under that section. Article III, section 53 of the Texas Constitution bars a county from granting "any extra compensation, fee or allowance" to an employee retroactively, which the opinion applied to bar retroactive grants of additional sick leave (citing Attorney General Opinion JM-1113 (1989)). Although Local Government Code section 152.013(a) requires elected officers' salaries and allowances to be set at the regular budget hearing, prior opinions had already concluded that county employees' compensation, unlike elected officers' salaries, may be set at any time of year (Attorney General Opinions JM-1113 (1989), JM-839 (1988), H-11 (1973)), which let the commissioners court adopt new sick-leave guidelines whenever it chose, so long as they applied only prospectively and weren't administered in a way that abused discretion (citing Attorney General Opinion JM-910).

On the pooling question, the opinion applied the general rule that a commissioners court, like any other creature of the constitution and statutes, may exercise only the powers specifically conferred on it or reasonably inferable from a specific grant of power (citing Canales v. Laughlin, 214 S.W.2d 451 (Tex. 1948), and article V, section 19 of the Texas Constitution). It noted that V.T.C.S. article 6252-8e, effective September 1, 1989, created a sick-leave pool specifically for state employees, but found no comparable statute authorizing a county-level pool. The opinion reasoned that a sick-leave pool goes beyond simple compensation-setting: it creates an administrative structure for transferring leave from one employee to another, something the general compensation-setting authority in section 152.011 does not reach. The opinion also cited Attorney General Opinion JM-1019 (1989), which held that, absent legislative authorization, a county official could not donate part of his salary to the county, though it noted a later statute, Local Government Code section 152.002, had since been adopted to allow a county to accept such a donation, an example of the kind of specific legislative authorization the opinion found missing for sick-leave pools.

Citations

Constitution and statutes:

• Tex. Const. art. III, § 53
• Tex. Const. art. V, § 19
• Tex. Local Gov't Code §§ 152.002, 152.011, 152.013(a), 152.052
• V.T.C.S. art. 6252-8e (state employee sick leave pool)

Cases:

• Canales v. Laughlin, 214 S.W.2d 451 (Tex. 1948)

Related opinions (Texas Attorney General):

• JM-910 (1988); JM-1113 (1989); JM-839 (1988); JM-1019 (1989); H-860 (1976); H-11 (1973)

Source

• Landing page: https://www.texasattorneygeneral.gov/opinions/jim-mattox/jm-1160
• Original PDF: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1990/jm1160.pdf

Original opinion text

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

April 20, 1990

Honorable Jack Skeen, Jr.
Criminal District Attorney
Smith County Courthouse
Tyler, Texas 75202

Opinion No. JM-1160

Re: Authority of a county to make exceptions to its standard sick leave policy (RQ-1938)

Dear Mr. Skeen:

You ask the following questions:

1. May a county grant additional sick leave to a county employee who has exhausted his allowed sick leave?

2. May a county permit county employees to transfer or pool their unused sick leave for the benefit of another county employee who has exhausted his allowed sick leave?

Section 152.011 of the Local Government Code, formerly article 3912k, V.T.C.S., provides:

The commissioners court of a county shall 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.

This office has concluded that sick leave benefits constitute "compensation . . . and all other allowances" for the purpose of section 152.011. Attorney General Opinions JM-910 (1988); H-860 (1976).

Your first question concerns the granting of additional sick leave to a county employee who has exhausted his sick leave. Since sick leave is considered a form of compensation or allowance, there would appear to be a constitutional problem in granting sick leave retroactively. Article III, section 53, of the Texas Constitution prohibits a county from making "any extra compensation, fee or allowance" for county employees retroactive. See Attorney General Opinion JM-1113 (1989).

Section 152.013(a) of the Local Government Code provides that the commissioners court shall set "salary, expenses, and other allowances of elected county or precinct officers" at a regular meeting of the court during the regular budget hearing and adoption proceedings. However, opinions of this office have concluded that compensation for county employees may be set at any time of the year. Attorney General Opinions JM-1113 (1989); JM-839 (1988); H-11 (1973). We believe that the commissioners court may set guidelines for additional sick leave for county employees to become effective prospectively any time during the year. The fact that one employee may receive greater sick leave than another employee would appear to be permissible so long as the additional benefits conferred under the guidelines are not dependent upon factors that might constitute an abuse of discretion. See Attorney General Opinion JM-910, supra.

In your second question you ask whether a county may permit its employees to transfer or pool their annual sick leave for the benefit of another employee. Commissioners courts may exercise only such powers as the constitution or the statutes have specifically conferred upon them, or which may be reasonably inferred from a specific power. Canales v. Laughlin, 214 S.W.2d 451 (Tex. 1948); Tex. Const. art. V, § 19.

Article 6252-8e, V.T.C.S., which became effective September 1, 1989, provides for the creation and operation of a sick leave pool for state employees. However, there is no statutory provision authorizing the implementation of a sick leave pool for county employees.

The question is presented whether it may be reasonably inferred from the authority granted commissioners courts to set compensation and other allowances that the court has the power to grant employees permission to transfer sick leave into a pool for the benefit of an employee who has exhausted his sick leave. A sick leave pool does more than provide compensation to employees. It provides an administrative structure for transferring sick leave from one employee to another, and thus is not authorized by section 152.011 of the Local Government Code.

Attorney General Opinion JM-1019 (1989) concluded that absent an authorization by the legislature permitting an official to donate a portion of his salary to the county, a county commissioner may not make such a contribution.[1] But see Local Gov't Code § 152.002 (statute adopted after issuance of Attorney General Opinion JM-1019 allows county to accept donation of officer's salary).

We conclude that a commissioners court, absent legislative authorization, may not grant county employees permission to transfer a portion of their sick leave for the benefit of another county employee.

SUMMARY

The commissioners court may set guidelines for additional sick leave for county employees to become effective prospectively. The commissioners court may not authorize county employees to transfer unused sick leave into a sick leave pool for the benefit of other employees.

MATTOX
Attorney General of Texas

MARY KELLER
First Assistant Attorney General

JUDGE ZOLLIE STEAKLEY
Special Assistant Attorney General

RENEA HICKS
Special Assistant Attorney General

RICK GILPIN
Chairman, Opinion Committee

Prepared by Tom G. Davis
Assistant Attorney General

Footnotes

1. Section 152.052 of the Local Government Code provides that if an elected county officer files an affidavit with the county clerk stating that the officer elects not to be paid for the officer's services, the county payroll officer may not issue a paycheck to the officer.