Untitled Texas Attorney General Opinion

ATTORNEY GENERAL OF TEXAS
GREG ABBOTT

November 26,2007

The Honorable Jana Duty Opinion No. GA-0580
Williamson County Attorney
405 M.L.K. Street, Box 7 Re: Whether a county that chooses to operate
Georgetown, Texas 78626 under subchapter C of chapter 111, Local
Government Code, may appoint its countyjudge
as its county budget officer (RQ-0590-GA)

Dear Ms. Duty:

Subchapter C of chapter 111 of the Local Government Code authorizes a commissioners
court in a county with a population in excess of 125,000 to appoint a county budget officer to prepare
the proposed county budget. See TEX. Lac. GOV'T CODE ANN. §§ 111.061-.62 (Vernon 1999)
(Subchapter C: Alternate Method ofBudget Preparation in Counties With Population ofMore Than
125,000). You ask whether a county that chooses to operate under subchapter C may appoint its
county judge to serve as its county budget officer.!

I. Background

You inform us that Williamson County, Texas, with a population ofapproximately 350,000,
currently operates under subchapter B ofchapter 111, Local Government Code. See Request Letter,
supra note 1, at 1. Williamson County desires, however, to operate under subchapter C. See id.
Subchapters A, B, and C of chapter 111 prescribe the county budget preparation requirements
applicable to a county, depending on the county's population size. See TEX. Loc. GOV'T CODE ANN.
§§ 111.001-.014 (Vernon 1999 & Supp. 2007) (subchapter A); id. §§ 111.031-.045 (subchapter B);
id. §§ 111.061-.075 (subchapter C). Subchapter A applies only to a county with "a population of
225,000 or less and that does not operate under Subchapter C." Id. § 111.001 (Vernon 1999). In a
county operating under subchapter A, the county judge serves as the county budget officer. See id
§ 111.002. On the other hand, subchapter B applies to a county with a population in excess of
225,000 and that does not operate under subchapter C. See id. § 111.031. In a county operating
under subchapter B, the county auditor serves as the county budget officer. See id § 111.032.
Finally, subchapter C "applies only to a county that has a population of more than 125, 000 and that
chooses to operate under [subchapter C] instead ofunder subchapter A or B" and authorizes a county

lSee Letter from Honorable Jana Duty, Williamson County Attorney, to Honorable Greg Abbott, Attorney
General ofTexas, at 1 (June 14, 2007) (on file with the Opinion Committee, also available at http://www.oag.state.tx.us)
[hereinafter Request Letter].
The Honorable Jana Duty - Page 2 (GA-0580)

operating under its provisions to appoint a county budget officer. Id §§ 111.061-.062. Thus, in a
county such as Williamson County with a population in excess of225,000, the county auditor serves
as the county budget officer unless the county ·appoints a county budget officer pursuant to
subchapter C.

II. Analysis ,

Section 111.062, the subchapter C provision authorizing the appointment ofa county budget
officer, provides in relevant part:

(a) The commissioners court of the county may appoint a
county budget officer to prepare a county budget for the fiscal year.

(b) A county that establishes the office of county budget
officer may abolish that office only by a formal action of the
commissioners court. . . . If the office is abolished, the duties of
budget officer shall be performed by:

(1) the county judge, if the county has a population of
225,000 or less; or

(2) the county auditor, ifthe county has a population of
more than 225,000.

Id § 111.062.

While section 111.062 expressly authorizes the commissioners court to appoint the county
budget officer, it does not specify who the commissioners court may appoint as the county budget
officer. See ide And, as particularly relevant with respect to the application of Texas common law
discussed below, the statute does not expressly authorize the commissioners court to appoint the
county judge as the county budget officer. See ide

Under Texas common law, the county commissioners court may not appoint one of its
members to an office over which the commissioners court has appointment authority. Ehlinger v.
Clark, 8 S.W.2d 666, 674 (Tex. 1928). The county judge is a member of the commissioners court
and the presiding officer when present. See TEX. Lac. GOV'T CODE ANN. § 81.001 (Vernon 1999);
see also Rheuark v. Shaw, 628 F.2d 297, 301 n.5 (5th Cir. 1980) ("The commissioners court,
consisting of the county judge and four county commissioners, is the governing and administrative
body of a county in Texas."). Under the common law, "all officers who have the appointing power
are disqualified for appointment to the offices to which they may appoint" because of the inherent
incompatibility of a person being "both a member of a body making the appointment and an
appointee of that body." Ehlinger, 8 S.W.2d at 674; see also St. Louis Sw. Ry. Co. ofTex. v. Naples
Indep. Sch. Dist., 30 S.W.2d 703,706 (Tex. Civ. App.-Texarkana 1930, no writ) ("[i]t is contrary
to the policy ofthe law for an officer to use his official appointing power to place himselfin office").
The Honorable Jana Duty - Page 3 (GA-0580)

The Legislature has not abrogated the common-law rule against self-appointment with respect
to the appointment of the county judge as the county budget officer. See TEX. Lac. GOV'T CODE
ANN. § 111.062 (Vernon 1999). The Legislature may abrogate the common law if it plainly
expresses such an intent. Enos v. State, 889 S.W.2d 303,305 (Tex. Crim. App. 1994); Bruce v. Jim
Walters Homes, Inc., 943 S.W.2d 121, 122-23 (Tex. App.-San Antonio 1997, writ denied). The
Legislature has not expressed such an intent in section 111.062. See TEX. Lac. GOV'T CODE ANN.
§ 111.062 (Vernon 1999). Under established principles of statutory construction, it is presumed that
the Legislature adopted section 111.062 with knowledge of and with reference to the common law
prohibiting self-appointment. See Tex. Dep't ofPub. Safety v. Loeb, 149 S.W.3d 741, 745 (Tex.
App.-Austin 2004, no pet.) (citing McBride v. Clayton, 166 S.W.2d 125, 128 (Tex. 1942)) ("A
statute is presumed to have been enacted by the legislature with complete knowledge ofthe existing
law and with reference to it.").2

Thus, consistent with Texas common law, the commissioners court cannot appoint the county
judge as the county budget officer for the county. Cf Ehlinger, 8 S.W.2d at 674 (holding that under
the common-law prohibition on self-appointment, a commissioners court "cannot appoint as its
attorney one of its own members, to wit, the county judge"). And, in answer to your question, we
conclude that a county that chooses to operate under subchapter C ofchapter 111, Local Government
Code, may not appoint its county judge to serve as its county budget officer.

2Consistent with our conclusion, section 111.062 was apparently adopted to allow the larger counties to have
a full-time, separate county budget officer. In 1981, the Legislature adopted Senate Bill 54 amending the substance of
sections 111.061 and 111.062tohaveabroaderapplication. See Act ofMar. 19, 1981, 67th Leg., R.S., ch. 17, § 1, 1981
Tex. Gen. Laws 22. A bill analysis for Senate Bill 54 explains that the provisions providing for the appointment of a
county budget officer were originally adopted in 1977 to allow certain counties "to appoint a full-time budget officer."
HOUSE STUDY GROUP, HOUSE COMM. ON INTERGOVERNMENTAL AFFAIRS, BILL ANALYSIS, Tex. S.B. 54, 67th Leg., R.S.
(1981). Noting that only Dallas County had a full-time budget officer, the analysis states that the 1981 amendment would
grant other counties, such as Harris County, where preparing the budget is "not a part-time job," the same option. See
ide
The Honorable lana Duty - Page 4 (GA-0580)

SUMMARY

Under Texas common law, a county commissioners court
cannot appoint one of its members to an office over which the
commissioners court has appointment authority. Subchapter C of
chapter 111, Local Government Code, authorizing a county
commissioners court ofan eligible county to appoint a county budget
officer, does not abrogate the common law. Accordingly, a county
that chooses to operate under subchapter C is not authorized to
appoint its county judge to serve as its county budget officer.

KENT C. SULLIVAN
First Assistant Attorney General

ANDREW WEBER
Deputy Attorney General for Legal Counsel

NANCY S. FULLER
Chair, Opinion Committee

Sheela Rai
Assistant Attorney General, Opinion Committee,