Untitled Texas Attorney General Opinion ( 1989 )

February 23, 1989
Honorable David R. White, Jr. OpiniOn No. JR-1019
County Attorney
120 East North Street Re: Salary of commission-
Uvalde, Texas 78801 ers in Uvalde County, and
related questions (RQ-1585)
Dear Mr. White:
You ask the following questions:
1. Can the salary paid each [county]
Commissioner be different or must each
receive the same salary?
2. Can the salary of the Commissioners be
lowered by a vote of the Commissioners Court?
If so, can the Budget be amended, after
proper hearing, immediately to reflect the
vote of the Commissioners, or would the Court
have to wait until their yearly budget
hearings?
3. If the salary of the Commissioners can
be lowered by the vote of the Commissioners
Court, what is the lowest amount that can be
paid each Commissioner as allowed by law?
4. Can a Commissioner elect to receive a
salary lower than what is set by the
Commissioners Court?
5. Can a Commissioner receive his full
salary, and thereafter make a donation or
gift back to the County of a portion thereof?
In your first question you ask whether all county
commissioners must receive the same salary. Section 152.011
of the Local Government Code provides "[t]he commissioners
court of a county shall set the ,amount of the
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Honorable David R. White, Jr. - Page 2 (JM-1019)
compensation . . . for county and precinct officers." See
article XVI, section 61 of the Texas Constitution. Section
152.012 of the Local Government Code provides that the
salary of an officer may not be set at an amount less than
the amount of the salary in effect on January 1, 1972.
In Attorney General Opinion JM-770 (1987), it was found
that the commissioners court may provide for different
salaries for constables in each precinct if the
circumstances reasonably require different salaries and if
each salary is itself reasonable.
In White v. Comm's Court of Kimble County, 705 S.W.2d
322, 326 (Tex. App. - San Antonio, 1986, no writ), it was
noted that "the case law is clear that the commissioners
court is limited only to providing a reasonable salary
within their discretion for county
_ _public officials." See
Vondv v. Comm8s Court of Uvalde County, 620 S.W.2d 104,
108-109 (Tex. 1981).
While White addressed the salary of a justice of the
peace and the issue in Vondv related to compensation for a
constable, no reason is perceived why the same standard
should not be applied in setting the salary of a county
commissioner.
As to whether salaries of all commissioners must be the
same, it should be noted that the duties of a constable or
justice of the peace are more confined to the official's
precinct than are the duties of a county commissioner and
that therefore payment of different salaries to the former
officials might reasonably correspond to some such
officials' duties being more extensive than others'.
Article V, section 18 of the Texas Constitution grants the
county commissioners court l'such powers and jurisdiction
over all county business, as is conferred by this Constitu-
tion and the laws of the State." Section 81.006 of the
Local Government Code requires three members of the court to
be present for conducting county business except that a
county tax may be levied only when at least four members are
present. While the commissioners sit as a body in
conducting the business of the county, in those counties
where commissioners are ex officio road commissioner of
their respective precincts, section 3.001(a) of article
6702-1, V.T.C.S., imposes duties on a commissioner for road
and bridge construction and maintenance in his precinct.
Conceivably, there could be a substantial variance in the
responsibilities of the commissioners in connection rSith
their duties as ex officio road commissioner. In such a
rare instance it might be urged that a reasonable salary for
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Honorable David R. White, Jr. - Page 3 (JM-1019)
one commissioner may differ from that of another depending
upon a marked disparity in these duties. In the final
analysis, as was concluded in Attorney General Opinion
JM-770, what constitutes a reasonable salary is a question
of fact within the discretion of the commissioners court.
In your second question you ask whether a salary can be
lowered for a county commissioner. The salary may be
lowered at the discretion of the court. However, under
section 152.013 of the Local Government Code, the commis-
sioners court is without authority to lower the salary of a
county or precinct officer until the regular annual budget
hearing. See Attorney General Opinion JM-839 (1988).
In response to your third question, the salary may not
be lowered to an amount less than the amount of salary in
effect on January 1, 1972. Local Gov't Code 5 152.012.
In your fourth question you ask whether a commissioner
may elect to receive a salary lower than that set by the
commissioners court. Section 151.011 provides that the
commissioners court shall set the amount of compensation for
county and precinct officers. It is not within the province
of a commissioner to determine that his salary differ from
the amount set by the court.1
In your last question you ask if a commissioner after
receiving his salary may make a gift to the county of a
portion thereof.
1. We call attention to section 152.052 of the Local
Government Code regarding the decision of an official not to
be paid.
(a) 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.
(b) After the affidavit is filed, the
county payroll officer shall take measures to
stop payment of a paycheck that was issued to
the officer before the affidavit was filed
and that has not been presented for payment.
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Honorable David R. White, Jr. - Page 4 (JM-1019)
Article XI, section 1 of the Texas Constitution states
that counties are legal subdivisions of the state. The
Interpretive Commentary notes that since counties are agents
of the state, they have no powers except those which are set
forth in the constitution and statutes. Id.
In Attorney General Opinion JM-684 (1987), it was
stated that "in order that a state agency may accept a gift,
it first must be authorized by law to do so; absent such
authority, it may not accept gifts or donations."2 The
Legislature has not seen fit to confer authority upon a
county to accept a donation from a county commissioner.
Generally, a county is not empowered to exercise any power
which is not specifically authorized by the legislature, or
which may be reasonably inferred from a specific power.
Canales v. Lauahlin, 214 S.W.2d 451 (Tex. 1948).
We presume that all parties are acting in the public
interest. Nevertheless, absent an authorization by the
legislature permitting an official to donate a portion of
his salary to the county, we conclude that a county
commissioner may not give a portion of his salary to the
county.
SUMMARY
Commissioners courts may prescribe
different salaries for the commissioners of
different precincts if unusual circumstances
. in each precinct reasonably require different
salaries and each salary is in itself
2. In Attorney General Opinion JM-684, it was noted:
The legislature has explicitly conferred
such authority on several state agencies.
See e.a V.T.C.S. arts. 4413d-1 (Office of
State-Federal Relations): 4413(32f) (Texas
Closeup Board); 4413(35) (Commission on Fire
Protection Personnel Standards and Educa-
tion): 4413(44) (Governor's Commission on
Physical Fitness): 4413(47d) (Texas National
Research Laboratory Commission): 4413(49)
(Criminal Justice Policy Council: Criminal
Justice Coordinating Council): 4413(51)
(Interagency Council on Sex Offender Treat-
ment).
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Honorable David R. White, Jr. - Page 5 (JM-1019)
reasonable. What constitutes a reasonable
salary is a question of fact within the
discretion of the court. Section 152.012 of
the Local Government Code provides that the
salary of an official may not be set at an
amount lower than the amount of the salary in
effect on January 1, 1972. The commissioners
court is without authority to lower the
salary of a county or precinct officer until
the regular annual budget hearing. It is not
within the province of an individual commis-
sioner to .determine that his salary differ
from the amount set by the commissioners
court. A county commissioner may not make a
donation of a portion of his salary to the
county.
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
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