Untitled Texas Attorney General Opinion ( 2012 )

ATToRNEY GENERAL oF TEXAS
G R E G A B B O T T
May l4, 2012
The Honorable Gary D. Young Opinion No. GA-0929
Lamar County and District Attorney
Lamar County Courthouse, 3d Floor Re: Authority of a commissioners court to remove
l 19 North Main Street salary increases for county officials at the final
Paris, Texas 75460 budget hearing, and the effect of that removal on the
grievance process (RQ-0999-GA)
Dear Mr. Young:
You ask whether a commissioners court may remove salary increases for county officials
during the final budget hearing of a fiscal year. Further, you ask about the effect that removing
salary increases has on the grievance process.1 You tell us that the Lamar County Commissioners
Court (“Commissioners Court”) adopted an order giving each elected county official a pay raise for
the next fiscal year. See Request Letter at 2. You state that this order, along with information about
the salary grievance process, was sent to each affected county official and published in a local
newspaper. See id. You explain that the Commissioners Court removed the salary increases for
elected county officials when the commissioners met during a public hearing to adopt the budget.
See id. Finally, you state that the county officials were not given additional notice of the change to
their salaries and thus had no time to file a grievance before adoption of the budget at the hearing.
See id. With these facts, you pose several questions:
Assuming the Commissioners Court voted to give the elected officials
a raise during the regular budget process, and gave timely written
notice . . . , can [it] remove the raise from the budget at the final
hearing to adopt the budget without giving the elected officials a
chance to grievance the decision?
If so, may the elected official[s] grievance the decision after the
adoption of the budget?
Are the elected officials entitled to rely on the representation of the
Commissioners Court as contained in the . . . written notices? If not,
lSee Letter from Honorable Gary D. Young, Lamar Cnty. & Dist. Att`y, to Honorable Greg Abbott, Tex. Att’y
Gen. at 3 (Sept. Zl, 2011), http://www.texasattorneygeneral.gov/opin (“Request Letter”).
The Honorable Gary D. Young - Page 2 (GA-0929)
[may] the Commissioners Court . . . vote [an increase each year], give
the proper notices . . . [and] allow the grievance period to expire, and
then, remove the raise from the budget at the public hearing, and thus
deny the elected officials of their right to a grievance?
Are the elected officials entitled to the pay raise as contained in the
“Salary and Allowance Order” and written notices? If so, is it simply
inserted into the budget?
See id. at 3. Your questions implicate chapters 111 and 152 of the Local Government Code.
Chapter 111, subchapter A of the Local Government Code, governs the budgeting process
for counties with a population less than 225,000.2 See TEX. LOC. GOV’T CODE ANN. § 111.0()1
(West 2008). Under subchapter A, the county judge is required to “prepare a budget to cover all
proposed expenditures of the county government for the succeeding fiscal year.” Ia'. § 111.003(a).
The county judge is to file a copy of the proposed budget with the county clerk, and then it shall be
available for inspection by the public. See id. § l l 1 .006(a)-(b). Subsequently, the “commissioners
court shall hold a public hearing on the proposed budget” in the time specified by statute. Id.
§ 111.007(a). The commissioners court must notify the public of the date of the hearing on the
proposed budget. See id. § 1 1 1 .007(0). “At the conclusion of the public hearing, the commissioners
court shall take action on the proposed budget.” Id. § 111.008(a).
Simultaneously, chapter 152 provides that the commissioners court sets the salaries of the
elected county and precinct officials. A commissioners court “set[s] the items at a regular meeting
. . . during the regular budget hearing and adoption proceedings.”3 Id. § 152.013(a). Prior to
filing the budget with the county clerk, the “commissioners court shall give written notice to
each elected county and precinct officer of the officer’s salary . . . to be included in the budget.” Id.
§ 152.013(0). Under chapter 152, a county officer who is aggrieved by the salary set by the
commissioners court may request a hearing before the salary grievance committee “before the
approval of the county’s annual budget.” Id. § 152.016(a); see also id. §152.014 (salary grievance
committee).
In Opinion GA-0051, we concluded that subsection 152.013(0) requires a county
commissioners court to notify officials of their proposed salaries after receiving the proposed budget
from the county judge, but sufficiently before the court’s approval of the final budget so that an
aggrieved officer can receive a determination from the salary grievance committee. Tex. Att’y Gen.
Op. No. GA-0051 (2003) at 4. In reaching that conclusion, the opinion reasoned that once a
2With a population of 49,793, Lamar County is subject to subchapter A. See U. S. Census Bureau, U.S. Dep’t
of Commerce, 2010 Census of Population; Tex. Quick Facts, http:/quickfacts.census.gov/gfd/.
3“We do not understand this ‘regular meeting’ necessarily to [be] a public hearing on the proposed budget.”
Tex. Att’y Gen. Op, No. GA-O620 (2008) at 3.
The Honorable Gary D. Young - Page 3 (GA~O929)
commissioners court has adopted the budget, an aggrieved officer may not request a hearing from
the salary grievance committee “before the approval of the county’s annual budget.” Id. at 3. The
opinion also reasoned that the recommendations of the salary grievance committee could not be
included in the budget if the budget had already been adopted. See id. at 4, 6; see also TEX. LOC.
GOV’T CODE ANN. § 152.016(0) (West 2008) (providing that salary recommendations must be
included in the budget if nine members vote in favor of the increase). Opinion GA-0051 determined
that construing section 152.013(c) otherwise would render impossible the requirements of subsection
152.016. See Tex. Att’y Gen. Op. No. GA-()051 (2003) at 3 (noting that the Legislature “intends the
whole of chapter 152, subchapter A to be effective”).
The same reasoning applies here. A commissioners court removing a proposed salary
increase from the budget at the final budget hearing_without giving additional notice and without
giving the elected officials a chance to seek redress from the salary grievance committee_similarly
renders the requirements of subsection 152.016 impossible. Moreover, we have recognized that the
commissioner court’s duty to notify the officers continues until the commissioners court has filed
the final budget with the county clerk. See Tex. Att’y Gen. Op. No. GA-0620 (2008) at 3. For these
reasons, we do not believe that a commissioners court may remove the proposed salary increase in
the manner you describe because doing so precludes an officer from utilizing the statutory grievance
procedure.4 This statutory limitation, however, does not prohibit a commissioners court from
amending the proposed budget. Chapter 111 expressly authorizes a commissioners court to make
changes to the proposed budget. See TEX. LOC. GOV’T CODE ANN. § 111.008(b) (West 2008). Our
conclusion requires only that a commissioners court amend the budget in a manner that timely
notifies county officers of the proposed salary alterations so that affected officers may seek redress
under section 152.016.5
Further, section 152.016 does not entitle a county officer to a proposed salary increase. Nor
does it provide a remedy to an officer who may be precluded from seeking a hearing by
circumstances such as you describe. Cf. Tex. Att’y Gen. Op. Nos. GA-0620 (2008) at 4 (recognizing
that salaries adopted in contravention of section 15 2.013(0) remain fixed at the prior year’ s amount);
GA-0162 (2004) at 2-3 (same). Morever, a commissioners court may expend county funds only in
strict compliance with the adopted budget, except in an emergency. TEX. LOC. GOV’T CODE ANN.
§ 1 11.010(b) (West 2008); but see id. § 111.010(d) (authorizing budget transfer without an
4Because your second question is contingent upon a different answer to your first question, we do not address
it. See supra page 1.
5In providing for the budget hearing, subsection 111.008(a) requires only that at the end of the public hearing
on the proposed budget, “the commissioners court shall take action on the proposed budget.” TEX. LOC. GOV’T CODE
ANN. § 111.008(a) (West 2008). The subsection does not require the commissioners court to adopt the final budget at
the end of the hearing. See id. Taking action on the proposed budget could include amending the proposed budget or
scheduling a subsequent hearing at which to adopt the amended budget, See Tex. Att’y Gen. Op. No. GA-0620 (2008)
at 2 n.3 (“We specifically do not construe the term ‘take action’ to be limited to the final adoption of the budget.”). A
subsequent hearing could be scheduled to allow time for the commissioners court to notify the officers about the changed
proposed salaries and to allow any officer time to utilize the salary grievance process,
The Honorable Gary D. Young - Page 4 (GA~0929)
emergency). We find no legal authority on which to conclude that county officers are entitled to the
proposed salary increases. However, we note that orders of a commissioners court are subject to
judicial review if the commissioners court acts beyond its jurisdiction or clearly abuses its discretion.
See TEX. CONST. art. V, § 8 (“The district court shall have . . . general supervisory control over the
County Commissioners Court . . . .”). A district court’s supervisory jurisdiction could be invoked
to seek a judicial determination as to whether the commissioners court acted beyond its jurisdiction
or clearly abused its discretion in adopting the county budget in the way you describe. See Gri]j’in
v. Birkman, 266 S.W.3d 189, 195 (Tex. App._Austin 2008, pet. denied) (discussing supervisory
jurisdiction); see also Hooten v. Enriquez, 863 S.W.2d 522, 528 n.7 (Tex. App._El Paso 1993, no
writ) (noting that a lawsuit is required to invoke a district court’s supervisory jurisdiction), Vondy
v. Comm’rs Court of Uvalde Cnty., 620 S.W.2d 104, 109 (Tex. 1981) (stating that the Supreme
Court “lacks original mandamus jurisdiction over county officials. Rather, that power is vested in
the district court in the exercise of its general supervisory control over the orders of the
commissioners court.”) (citations omitted).
The Honorable Gary D. Young - Page 5 (GA-0929)
SUMMARY
A commissioners court that removes county officers’
proposed salary increases from the budget at the final budget hearing
without giving additional notice to county officers under subsection
152.013(c), Local Government Code, and without giving the
elected officials a chance to seek redress from the salary grievance
committee under section 152.016 acts contrary to the requirements
of chapter 152.
There is no legal authority on which to conclude that the
county officers here are entitled to the proposed salary increases.
A district court’ s supervisory jurisdiction could be invoked to
seek a judicial determination as to whether a commissioners court
acted beyond its jurisdiction or clearly abused its discretion in
adopting the county budget.
Very truly yours,
Attorney 6 neral of Texas
DANIEL T. HODGE
First Assistant Attorney General
JAMES D. BLACKLOCK
Deputy Attorney General for Legal Counsel
JAS ON BOATRIGHT
Chair, Opinion Committee
Charlotte M. Harper
Assistant Attorney General, Opinion Committee