Untitled Texas Attorney General Opinion ( 1985 )

The Attorney General of Texas
JIM MAlTOX June 13. 1985
Attorney General
Supreme Court Building EonorableJames A. Rasmussen opinionNo. at-326
P. 0. Box 12548 Uichita,Couuty Attomey
Austin. TX. 7871% 2548
512l4752501
Wichita County Courthouse Re: Whether a commissioners
Telex 9101874-1357 1 th 6 Lamar. Suite 207 court may reduce a county
Telecopier 512/4750288 Wichita Falls,Texas 76301 attorney's salary after the
annualbudget has been adopted
714 Jackson. Suite 700
Dallas. TX. 75202-4506 Dear Mr. gamussen:
214l742-89u
Pou have requested an opinion from this office regarding the
authorityof the cnnmissionerscourt to reduce the salary of the
4824 Alberta Ave., Suite 160
county attorney.afc:e!r
the annual budget for the county has been
El Paso. TX. 799052793
915l-
approved..Specifically,you ask the followingquestions:
1. Doee a comDiesionerscourt have authority
1Ml Texas. Suite 700 to reduce lthe salary of a county attorney after
Housion. TX. 770025111 the annual budget hearing and budget adoption
713/223-5888
proceedinge?
806 Broadway. Suite 312 2. Is the county attorney estopped from
Lubbock, TX. 79401-3479 claiming hwk salary by subsequently accepting
8W747.5238 less than the salary set pursuant to article
3912k..V.T.C.S.?
4306 N. Tenth, Suite B
MeAllen. TX. 78501.1685 To assist ue in renderingour opinion,you have suppliedthe following
51s82.4547 facts:
200 Main Plwa Suite 400 1. On Sleptember12, 1983, after the annual
San Antonio. TX. 782G52797 budget hewing. the final budget of Wichita
512Q25-4191 County, TaBa for the year of 1984 vae certified
by the county judge and filed with the county
clerk of Wichita County, Texas.
An Equal Opportunltyl
AffirmalIve Action Employer
2. The salary of the county attorney in said
budget.waeIretat,a sum of $38.919.00per annum.
.3.,;On:Jcamber 31, 1983, the incumbentcounty
attorneyraraigned
from office.
4. On January 9, 1984, I was appointedcounty
attorney by tbe ctissioners court of Wichita
County,Texas.
p. 1489
.
. .‘,,
EonorableJames A. Rasmussen'-Page 2 (JM-326)
5. On the same date (January 9. 1984) the
commissionerscourt entered an order reducingthe
salary of the cowty attorney to the sum of
$30.312.00 per annum. This is the salary
currentlybeing paid.
6. Ho noticeva6 providedby the commisaloners
court aa to the proposedsalary reduction.
In most counties,the commiaalonerscourtmust approvethe yearly
operatingbudget for the county at an annual budget hearing and may
amend the budget to allow emergency expendituresin times of grave
public necessity. V.T.C.S.art. 689a-11. The commisa*onera court may
also make "changesin the budSet for county purposes." V.T.C.S. art.
6898-20.
The generalrule derivei,from the aforementioned
authoritieswas
summarizedin Attorney GeneralOpinion E-11 (1973):
In most situations amendments to a county
budget will have I:O mset the requirementsof
Article 6898-11, V.'T.C.S. Whether circumstances
exist which will warrant an amendment to the
budgetwill be a questionof fact in each case.
This rule, however, assumes a different tenor when applied to the
salaries of county officere and employees contained in the annual
countybudget:
[Als to salariesof county officersand employees,
the rule has been :hnpliedlyamendedby the enact-
\ Pent, in 1971, of Article 3912k. . . .
AttorneyGeneralOpinionE-11 (1973).
\ Article3912k.V.T.C.S.,establishesguidelinesto be observedby
the cormnissionera
court vher setting the salariesof certain county
!\ officials and employees. tt contains the following pertinent
provisions:
Section 1. Except as otherwise provided by
this Act and subject to the limitationsof this
Act, the conmissiorters
court Aof each county shall
fix the amount of compensation,office expense,
travel expense, and all other allowances for
county and precinct officials and employeeswho
are paid wholly frcm county funds.but in uo event
shall such aalarielr be set lover than they exist
*t the effectivedate of this Act.
p. 1490
RonorableJames A. Rasmussen- Page 3 (JM-326)
. . . .
Sec. 2. (a) The!salaries,expenses,and other
allowancesof --
elected county and precinctofficers
shall be set each year during the regularbudget
hearing and adoptio,;proceedingson giving notice
as providedby this ?,ct
--* (Emphasisadded).
In AttorneyGeneralOpinion II-11(1973),it was stated that section2
"applies only to elected county and precinct officers,[and] requires
that their salaries be set during the regular budget hearing."
(Emphasisadded). Tbe opinion furthernoted that because section1 of
article 3912k imposes no similar limitationon the authorityof the
commissionerscourt to fix salaries of non-elected employees and
officials.these salaries
nay be fixed at times other than during the
regularbudget hearing. To the extent that this
is inconsistent w:Lth Article 6898-11, Article
3912k furnishesan :tnplied
exceptionthereto.
AttorneyGeneralOpinionH-11 111973)(citationsomitted). It is clear
that since the county attorney?
is an electedofficial,see Tex. Const.
art. V, 521, the salary for that office nay be considea and adopted
only during the regular, ar.nualbudget hearing and adoption pro-
ceedings. V.T.C.S. art. 391;!k,12(a). -Cf. Attorney General Opinion
JM-313 (1985).
One of the establishedmles of statutoryconstructiondecrees
that when two statutes affec:tthe same general subject matter, the
more specific of the two is controlling. See Sam Bassett Lumber Co.
v. City of Eouston, 198 S.W.Zd 879 (Tex. 19m; East Texas Oxygen Co.
v. State, 681 S.W.2d 741, 745 (Tex. App. - Austla 84, no writ). In
this instance. both articles 6898-11 and 3912k deal nenerallvwith
county budget matters and th.ecommissionerscourt's discretion in
creatingthe budget. Article 3912k, however, deals in particularwith
the salaries of county and precinct officialsand employees.subjects
that would otherwisebe guided by article 6898-11. Accordingly,we
believe that article 3912k, and the interpretations of the statuteby
the courts and this offi,ce,control the outcome of your inquiry.
Thus, in Attorney General Cplnion R-643 (1975) this office concluded
that the comuissioners'court may not reduce the salary of the county
attorney below the amount fixed at the annualbudget hearinguntil the
follovingfiscal year. This opinionnoted that althougharticle3912k
deals generallywith salary-- in'-reases.
[i]mplicit in thie conclusion is the corollary
that the salaries of these [elected county and
precinct]officialsuay not be decreaseduntil the
next fiscalyesr. ('Emphasisin original).
p. 1491
,A Y.‘,
HonorableJataesA. ~asmusaen- Page 4 (JH-326)
It appears. then. ~that the conmissionerscourt is not accorded the
discretionto "make changes in" or to amend the salaries of elected
county and precinct officialspursuantto article 689a-11 and 689a-20
after approval at the regular’ budget hearing. We therefore ansver
your first questionin the negative.
Your second question aska vhether the acceptanceof a salary in
an amount less than that set :Lnaccordancewith article 3912k estops
the county attorney from claisrtng
the avount he is entitledto receive
by lav. The mle vhicb ansvera your inquiry vas first announcedin
Morrison v. City of Fort Worth, i55 S.Ui2d 908. 910 (Tex. 1941) and
most recently affirmed in --
Brow v. Tyler County CommissionersCourt,
560 S.W.2d435, 437 (Tex. Civ. App. - Beaumont 1977. no vrit):
[W]e think it is the lav in this State that a
public officer cannct estop himself from claiming
his statutorysalary 'by agreeing to accept, or by
accepting,less than the salary providedby law.
Your second question, accordi&y. is answered in the negative. We
caution that our answers here should not be read to divest the
cotmissionerscourt of its discretionto fix salaries in accordance
vith the lavs of the state.or to reauire the court to award anything
rsorethan vhat it considersto be a reasonable salary. See V.%.C.SY
art. 3912k. Cf. Vond v. Cotmlissioners Court of Uvalde~unty, 620
S.U.2d 104. 108 (Tex. 1981 .
-----r-
The commissionerscourt may not reduce the
salary of the count:gattorney,or any salary set
pureuant to section2.of article 3912k. V.T.C.S.,
from the amount arsprovedat the annual budget
hearing and budget adoption proceedings. The
county attorney is not estopped from claimingthe
amounts he is entit,l.edto receive under article
3912k by accepting a salary less than the sum
originallyapprovedpursuantto article3912k.
L-&g+ AttorneyGeneralof Texas
TOM GREEN
First AssistantAttorney General
P. 1492
HonorableJames A. Usmussen - Page 5 (m-326)
DAVID R. RICHARDS
ExecutiveAssistant AttorneyGweral
ROBERTGRAY
SpecialAssistantAttorneyGewsal
RICK GILPIN
Chaiman, OpinionCommittee
Preparedby Rick Gilpin
AssistantAttorneyGeneral
APPROVED:
OPINIONCOMHITTRE
Rick Gilpfn,Chairman
Colin Carl
Susan Garrison
Tony Guillory
Jim Noellinger
JenniferRiggs
Nancy Sutton
p. 1493