February 1, 1990
Honorable Daniel W. Leedy Opinion No. JM-1138
Austin County Attorney
One East Main Re: Authority of a commis-
Bellville, Texas 77418-1551 sioners court to increase the
salary of a county court-at-
law judge after adoption of
the budget (RQ-1803)
Dear Mr. Leedy:
You ask whether the Austin County Commissioners court
has the authority to increase the salary of a county court-
at-law judge after the adoption of a budget.
Subsection (e) of section 25.0102 of the Government
r‘ Code sets the annual salary for the county court-at-law
judge in Austin County in an amount "that is at least equal
to 75 percent of the annual salary paid by the state to a
district judge in the county."
pursuant to House Bill 101 of the 71st Legislature,
effective September 1, 1989, the judges of the district
courts of this state shall be paid an annual salary that is
five percent less than the salary for a justice of a court
of appeals. Acts 1989, 71st Leg., ch. 1258, § 1, at 5074.
you advise that House Bill 101 will result in a raise for
the district judge in Austin County. Since the salary of
the county court-at-law judge is tied to that of the
district judge you ask whether the raise for the county
court-at-law judge is automatic or must it await the action
of the commissioners court at its annual budget hearing.
Section 152.013 of the Local Government Code (formerly
article 3912k, V.T.C.S.), provides in pertinent part:
(a) Each year the commissioners court
shall set the salary, expenses, and other
allowances of elected county or precinct
officers. The commissioners court shall set
the items at a regular meeting of the court
during the regular budget hearing and adop-
tion proceedings.
P. 5997
Honorable Daniel W. Leedy - Page 2 (JM-1138)
you state that your concern is prompted by the con-
clusion in Attorney General Opinion JW-326 (1985) that the
salary for a county attorney, an elected official, may only
be considered and adopted at the annual budget hearing and
adoption proceedings under then article 3912k (now Local
Government Code section 152.013).
Subsection (1) of section 152.017 of the Local Govern-
ment Code excepts a judge of a court of record from the
requirements of section 152.011 St sea,. relating to the
compensation for county and precinct officers. The county
court-at-law judge in Austin County is the judge of a court
of record. &g Attorney General Opinion W-1095 (1972).
Therefore, section 152.013 of the Local Government Code is
inapplicable to a county court-at-law judge. See Attorney
General Opinion M-921 (1971); cr‘. Attorney General Opinion
m-110 (i979).1 Since the county court-at-law judge's
salary is tied to that of the district judge in the county,
the effective date for the salary increase is September 1,
1989. The increase in salary for the county court-at-law
judge is by mandate of the legislature and is not a matter
addressed to the discretion of the commissioners court.
Even though the matter of the salary increase is not ?
within the province of the commissioners court, the question
remains whether the commissioners court may authorize the
expenditure for same after the adoption of the budget for
the year that included a lesser amount for the salary of
that office.
Section 111.010 of the Local Government Code (formerly
article 689a-11, V.T.C.S.), applicable to counties with a
population of 225,000 or less, provided prior to amendment
by the 71st Legislature, which will be considered later in
the opinion, that the commissioners court may only spend
county funds in strict compliance with the budget, except in
1. Subsection (2) of section 152.017 of the Local
Government Code excepts a presiding judge of a commissioners
court in a county with a population of 1.7 million from
the requirements of section 152.011 et sea. of the Local
Government Code relating to compensation for county and
precinct officers. Attorney General Opinion WW-110, while
recognizing that a county judge is the presiding judge of a
court of record, concluded that the requirements of then
article 3912k (now Local Government Code section 152.013)
apply to all county judges who preside over commissioners
-.
courts except those in counties having a population of
1,700,OOO or more.
p. 5998
Honorable Daniel W. Leedy - Page 3 (JM-1138)
an emergency. The matter of what constitutes an emergency
that will justify the amendment of the budget has been the
source of confusion and numerous questions to this office.
&.8 Attorney General Opinion JW-784 (1987); 35 D. Brooks,
County and Special District Law, § 15.11 (Texas Practice
1989).
Attorney General Opinion JM-784 reviewed conflicting
opinions relative to whether re-allocation among budgeted
items already adopted is distinguishable from an item not
originally included in the budget in determining whether it
is necessary that an emergency exist before there may be an
amendment to the budget. It was concluded that in either
instance there must be an emergency before there may be an
amendment to the duly adopted budget.
In Attorney General Opinion JM-733 (1987), an unforsee-
able emergency caused the need for overtime work by a county
employee. The question addressed was whether the budget may
be amended to pay overtime compensation mandated by. the
federal Fair Labor Standards Act of 1938. It was concluded
that the failure to pay such additional compensation
constituted a potential violation of federal law so as to
warrant an emergency amendment.
P
We need not consider whether the salary increase of the
county court-at-law judge warrants an emergency amendment in
light of House Bill 1077 of the 71st Legislature, effective
upon passage on Way 25, 1989. Acts 1989, 71st Deg., ch.
167, at 549. House Bill 1077 amended Local Government Code
section 111.010 by adding subsection (d) providing:
(d) The commissioners court by order may
amend the budget to transfer an amount
budgeted for one item to another budgeted
item without authorizing an emergency expen-
diture.
The following comments in the Bill Analysis to House
Bill 1077 reflect the legislature's desire to resolve the
problem requiring that an emergency exist before there may
be a transfer among budgeted items.
Current law provides that in order to
transfer funds from one line item to another,
counties with fewer than 225,000 people must
pass an order declaring an emergency and
grave public necessity due to unusual and
unforeseen circumstances. This requirement
is unduly restrictive and cumbersome. Fre-
quently , counties need to transfer funds
P. 5999
I
Honorable Daniel W. Leedy - Page 4 (JM-1138)
?
without compromising the court's integrity by
calling the situations an 'emergency.'
H.B. 1077 would allow counties 225,000 or
less population to amend the budget to
transfer funds from one line item to another
without authorizing an emergency expenditure.
The current salary of the county court-at-law judge is
a budgeted item. House Bill 1077 (subsection (d) of section
111.010) grants the commissioners court authority to trans-
fer money from an amount budgeted for one item to another
budgeted item without a finding that an emergency exists.
If there are not sufficient funds in any other budgeted
item to enable the required transfer, we are of the opinion
that the county court-at-law judge's claim for additional
salary (effective September 1, 1989) resulting from the
action of the 71st Legislature may be included in next
year's budget and paid following the adoption of the budget.
See 35 D. Brooks, County and Special District Law, 5 15.8
(Texas Practice 1989).
SUMMARY
The salary increase for the judge of the
county court-at-law of Austin County is by
mandate of the legislature resulting from a
raise in salary of the district judge in that
county and is effective September 1, 1989.
The commissioners court may amend the budget
to transfer an amount from another budgeted
item to effect the claim for such additional
salary. In the event sufficient funds are
not available in the budget to effect a
transfer to satisfy the claim, the amount may
be included in next year's budget and paid
after adoption of the budget.
JIM MATTOX
Attorney General of Texas
MARY KELLER
First Assistant Attorney General
JUDGE ZOLLIE STEAKLEY
Special Assistant Attorney General
p. 6000
Honorable Daniel W. Leedy - Page 5 (JM-1138)
,-
RICK GILPIN
Chairman, Opinion Committee
Prepared by Tom G. Davis
Assistant Attorney General
p. 6001