r   I




                                                                           ,R-150




            PRICE   DANIEL
            ATTORNEY GENERAL

                                               Mmob 28, 1947

                       Bon. Jep 8. yullsr             Opfnloll NO, v-110
                       County Attormky
                       Jefferson  County              Re:   Right of County’co8ml8Y
                       BeaumontD lWXa6                      slonrra D Court  to re-
                                                            co&m     a union ae ool-
                                                            leotive  bakgainiw   agent
.                                                           ior county employeea and
                                                            to enter into a oollect-
                                                            ive bargaining agreement
                I                                           with said agenoy.        ‘~
                       Dear Sir:
                                   You ask us to a&vise whether the Commissionerse
                       court or ~Jrrr6rroh County may enter ‘a dollsotive      bar-
                        gaiunfng agreement with an awooiation    or’ union and re-
                        cognize it a6 the oolleotire   bargaining agent for oounty
                        employees 0 YAttaohed to your request is a oopy or”an
                       agreement bdtwaen the County CommissIonsraP Court of
                       your ooonty with Looal No,, 997 of the Ameriaan yedera-
                        tion of State, County,, and WnicfRal    Employees.     This
                       contract provide8 for the Union as the bargaining agent
                       ror all oounty dmployees; for an 8 hour working day and
                       a I+0 ho.ur work Week, *All houra worked in exaena of A0
                       houra are to be added to the employee*6 iaoationor          the
                       employee to take euah time off at any time; that silita
                       the convenienoe of the department of his employment.”              ”
                       It also, provides ror eiok leaVea, ta6ations and obser-
                       vance of designated legal holidaya.      The’oontraot    is
                       for a term of one year and “shall autmnatioally       remain
                       in full force and effect    from year to year, unless a
                       written notioe is given, thirty days prior to erpfra-
                       tion of the year that said contraot ia in foroe, by
                       either party upon the other, of their intention       to ter-
                       minate said contract or until a new agreement la mutually
                       agreed to by the parties herein,*
                                 The substantial queetion is of the legalit
                       of the contract; of the authority of the County Cc!wullf*-
                       sionersn Court to make such a contraot,
                                    It ia axiomatio that in a governmsnt ih whioh
                       tho dutie8     of all orficere, as yell as their ponerr, are
Han, Jep S, Fuller          - Page 2   V-110


defined by written law, no power should be exerciesd
unless authorized by law,   It is important Co beer in
mind that the CommissionersO Court &es not have the
same freedom of action whioh private bmployers enjoy.
Their authority is confided to them by lawg an8 by that
law it is limited,   That authority may not YI $rlogated
or surrendered to others sinoe it 16 a publio trrist 00
be disoharged by publio OffiOialS a8 mided     by ZWDla
           In the case of
t %19071, 90 TeXe 606, 4
?fourt of Texas said:
               *It is not true 0 0 e t,hat the @on-
        sti tution confers upon the CommiB*foner~~
        Court any general authority over the ooun=
       ‘tyDs business,     but merely gives them nuah
        speoial powers and jurisdiotion         over all
        county business as is conferred by the con*
        stitution   itself   and the laws ot the State,
        or as might be thereafter       preacribr)llo    We
        had occasion    to consider thi$ ques%li?a in
        the case or Bland v. Orr (Tex, Bup,) B9 S,
       VB, 558, and reached the conclusion          that
        such courts could exercise       only so@& ow%r8
        as the constitution     itself   or PM 1% ! #la-
        ture had specifically      conferred uwb Umn,*
              The Supreme Court of Texas reiterated   the above
fo~;~i;oChildress       County v, State (1936) 92 So WO (2d)
     0    16,   saying:
              “The authority of the CommisBiOnersO
       Court of Childreea County to Bike OOP-
       traote in its behalf is striotly     1iaSW
       to that oonferred,    either expWs#ly or by
       fair or necessary implicatfon,    by the  em-
       stitution   and laws of this State**
            Nor oan the Commissioners0 Court 11&&t it8 Srsew
dam OS contract with its employees aa to the wobdit$oLM
or stipulatfone   of employmentD Thus County  oSfio@T~ who
are authorized by law to contraot for the buildfaa; et a
oourthouae aannot delegate such sullhorfty to a pe&mtO
indivfduab~
           The ComissfonersB    Court bould not dsleeate
to an architeot   their authority to make a contraat %
construct  a courthouse,   Russell v. Gage (3886),   66 .%X0
428,   1   S.   W,   270,
Bon* Jop 8. Puller ~0 Page 3 V-ll0


                                        lleo C, &'1919)
            T
208 8. ‘99, 2 3# or
Cc%lalas&-oneTaQ co
                                        held that tEo
                                       r the om8traetioa
of a eowthouse oannot make the oontSaotor glr agent
with authority to ptroel out the oontrao8 M others and
themby telease the oontraotors trOm all lW%lty,
Suoh aotion was void bWaur@ it delegated to others tho
court @I powera ot passlng QD the omtraot.            .
           And the dupreme Court in
County: (1888) 71 Tex, 99, 8 a0 W, 6
oounty oom&~eioners~ oourt nwt them&olver ssleot auoh
agents aa may be neoessary to assist thun in tk die-
charge of their fuuotions when suoh agents smro~ae
jud$ment and discretion   in pWfomna8   or tbs worlc as-
signed to thm; t&e duty of aaktsg the arleettoas should
not be delegated; and a ~artaDl to tEu uMrary would br
unree+#onable and not bindln$.
            Ita r&z&dno authority &I C&e Uu for a Oormdr-
sioniro”   Court to enter a eolleotiYe bargaining oontract
                      or it8 &e&al dutlea to aa aWeelation
                     r8snkiw who ahaU ba sQ&oye&, and
                            provtlirrs  ngul;atirrg suoh am-
p1oymut.




          “Xn this oonneot&bn we lo 8ot de1
     it inappropriate to quote the Iota
     dent Roosevelt, am no o&e ban tH&tb
     my he was fi any #en86 inialaal
     In a letter to thr Ratloolrl
     rbaezu ~Q~~WHI, adoa Wwt           i(lp
       Hon. Jep 9. Fuller    - Page 4     V-110


            the late   president     is quoted as saying:
                 OAll government employees should re-
            alive that the prooess of oolleotive      bar-
            gaining, as usually understood, oannot be
            transplanted    into the public servioe.     It
            has its distinct    and insurmountable liti-
            tations when applied to publio personnel
            managementO The very nature and purpose or
            government make it impossible for adminls-
            trative ofiieials    to represent fully or to
            bind the employer in mutual disoussions       with
            government employee organizations e The em-
            ployer is the whole people, who speak by
            meana of laws enacted by their representa-
            tives in Congress.     Accordingly,  adminls-
            trative   employers and ofriolala   alike are
            governed and gutded, and in m,n instanoes
            restricted, by laws which estab E:ish poll-
            oies 9 prooedur61, or rules in personnel
            matters. sm
                 ,WhiLe the GeaWmaioneras   Wart has the right               of
                               aad disehaq!&g   some ereployees,
                                   preillme
                                         cowt      Si,Teza8, 1941s 152 8,.
                              ot by direat%-   or iBdiraQtieB in-
       fringe upon an elected county officer*s   right and duty of
       selecting assistants  of his choice.,
       (San Antonio Court of Civil Appeals,
       w. (2d) 636, 646,
                 Artiale    3902. Revised       givil   Qbatutel. I 1925.
                                                                       -.   as
       amended, provides    that H -




            numbor needed, the position     to be filled    a$
            the amount to be paid,     Said tpplio at~ien shall
            be aecempanfed by-statomnts      SheWi~ t&m prob-
            able reoeipte   rrom fe,es, oom~&&enr amd oofnp
            peneation to be collected    by said effiee     during
            the risoal year and the probable dibbureeliatr
b..;        whioh mhall inolude all aalariee     and expense0
            of,said  0friee; ash. mid   QQWW~ ab&U     8g&J&
.             .,




                    Bon e Jep 9. Fuller     - Page 5   V-110




         ’




                                                               (Undersooriag

        ,
         .’                     Like priwirfonr ar+a r0uad in the 0th or a trtutss
                   dealing   with the appolntnent and salaries   o? county emplg-
                   eeso
                               Though the Comml~elonors.~ Court vaa, 081~aa au-
                    thorized by law, limit the salaries      and nu&er of county
         ’
                   empI@yees, thep have no power @?er, the naaing or the lndi-
                   viduals o                                    do w* (24) 537.
                   Ths Court                                     werrlho4    bv law.
                   “‘ph. Commlesloarti *             llmlteti Ju~l~~6tler1,   inh~
    .
                   Then atatutoEy authority    is given ?or the axWolse ef cor-
                   taia pawek    and the per?ormutee of oorta5.n duties,     those
                   requlroments aust be striaPZg ?dlloweU. D D* The alg
                   authority under rhioh a Wnni.asionara~ Couxt oould assist
                   in the appeintmrtlt Of the doputlea named in Artiole       3902
                   is the authority oanierrel    thorola,    6A& oould be exeouted
                   only In the manaar presorlbod     la the statute,
                   Johna”@noa, (San Antonio C, A, 1932), 52 So II, (2
.
                              23118 department la b)inhan Elo. O-2633, approved
                   Septembrr 9, 19       reached a like oono~urlen-- helding
                   that the Lowor. r sfondo    Biver Autbwrrlt,y la&M the author-
                   ity to enter ipto a pxopoeo~ oolleetive       kx@ni       tkgree-
                   ment with a labor unloo.      A oapy of that oplnloa “f I  att8ohed
                   hereto.
                                In   view or w&t has bran paid lb c woit,1s thr
                   settled rule      of law in this Utate that the 'Coamln4l$msrrr'
                   Court oannot      by direotion  or indireotion   ln?rin@‘upon
                   an orfioer~s      right and duty o? seleoting    raBlatant8 o? his,
                   oholce.    The    reaponslble  head or an orfioo   oanabt be re-




                                             .
Hono Jep 8, ?ullrr      - Paga 6    V-U.0


lieved from the general duty of the supeniaion               and
control or his office    in a reasonably sffioient           man-
ner by placing restrictions    ar to whom he shall           ap-
point nor aa to the conduct o? his O??iOoe

            !?sithor   can the Ccn@s616#2ere* @our& 4nt4r
into   a eolb4ti+4     bargaining a&rOmOd    aId ?44ogniz4




             The Jorrrrson mmby    mmml~iaram~
       Qourt ir not authorized to roea#4##@ a
       p~ion or arrwiation    es a 00~14otl4U ‘k*
       gaining agent
       statutes Bo not



       Courtos authorllty as to the aoadibl~   6f
       oznployment, working hour*, vaMt401,   and
       other matters relating  to such omplO~nto
                                         RespooUull~r   yours,
                                   A’M’ORNBY
                                           (IEHwEaAL
                                                  OF ‘l’l+B

                                                 ---++-t
                                   BY               .    .
                                        David Wuntoh
                                        AMietant