THE ATTORNEY GENERAL
OF TEXAS
November 9, 1989
Honorable Bill Turner Opinion No. JM-1113
District Attorney
300 E. 26th Street, Suite 310 Re: Whether a county may
Brazos County Courthouse make a pay raise retroactive
Bryan, Texas 77803 to time when funds were bud-
geted for pay raises.(RQ-1722)
Dear Mr. Turner:
You ask the following question:
Are Brazes County department heads
prohibited by Article 3, Section 53 of the
Texas Constitution from distributing merit
pay raises to county employees retroactively
from January 1, 1989 to the present, wkiere
such merit pay raises were authorized by
order of the Brazos County Commissioners'
Court on September 29, 1988 for inclusion in
the 1989 budget, but were not actually
distributed previously due to reliance by
such department heads on an erroneous
directive from one of the County
Commissioners?
You explain that in September 1988 the Brazos County
Commissioners Court approved a budget that included a merit
pay increase program under which a set number of county
employees would receive a merit pay increase. The
commissioners court voted to use the previous year's
guidelines for granting merit raises. In December 1988 the
county judge, acting on his own, distributed a memorandum
stating that department heads would receive guidelines for
distributing merit pay raises in January 1989. The
department heads waited several months to receive
guidelines, during which time they did not seek approval of
merit pay increases for any individual. Eventually it
became clear that the commissioners court had not issued
guidelines because the guidelines had not changed from the
previous year. Merit pay increases for certain employees
were then approved from May 1, 1989, forward. See aenerallv
p. 5838
Honorable Bill Turner - Page 2 (JM-1113)
Local Gov't Code 8 152.011 (commissioners court is to Set
compensation for employees paid wholly from county funds):
Attorney General Opinion H-11 (1973)(concluding that salary
for county employees -- but not county officers -- may be
set at any time of year). YOU ask whether those pay
increases may be made retroactive to the beginning of the
budget year.
Article III, section 53, of the Texas Constitution
prohibits a county from granting extra compensation to
county employees after their services have been rendered.
Fausett v. Kinq, 470 S.W.Zd 770, 774 (Tex. Civ. App. - El
Paso 1971, no writ). We think that prohibition applies in
the circumstances you describe.
We understand from your brief that the commissioners
did not approve raises for individual employees when they
adopted the budget; they merely budgeted funds to be used
for merit increases for a certain number of as yet
unidentified employees. YOU suggest that Taxnavers' Ass'n
v. Houston IndeD. School Dist., 81 S.W.Zd 815 (Tex. Civ.
APP. - Galveston 1935, writ dism'd), supports the
proposition that the Brazes County merit raises may be made
retroactive. In that case the court considered whether a
school district could restore in part cuts it had made in
teachers' salaries for previous years. In concluding that
such restoration was permissible under article III, section
53, the court wrote:
The partial restoration . . . did not
constitute an increase in such original and
prevailing salaries: hence were not *
violation of [article III, section 35;;
because such originally prevailing salary
schedules and the contracts from which they
proceeded had never been abrogated, but
instead, due to the financial stringency that
caused them, had merely been temporarily
suspended as an emergency measure, upon the
distinct and mutual understanding between all
parties that such was the case and that they
would be so restored if and when the cause of
making them had been removed . . . .
Id. at 819.
We do not think the holding in the Bouston Indenendent
School District case is applicable in this instance. In
that case salaries had been approved and were later cut. In
p. 5839
Honorable Bill Turner - Page 3 (JM-1113)
this situation no merit raise for any individual employee
was ever approved for the period before May 1, 1989.
Several prior opinions of this office support the
conclusion that article III, section 53, prohibits
retroactive raises in the circumstances you describe. In
Attorney General Opinion o-5104 (1943), this office held
that the fact that a commissioners court could have allowed
additional amounts of compensation in past years would not
allow the court to pay such amounts retroactively. Several
years later, this office held that where a commissioners
court was authorized to increase an officer's compensation
by $750 per year, it could only grant an increase in the
current year in proportion to the number of months remaining
in the year. Attorney General opinion O-6736 (1946).
Similarly, we think that the fact that the commissioners
court budgeted funds for merit raises does not give the
court authority to make individual raises retroactive to the
date on which funds were available for merit raises. See
- :
aenerally Attorney General Opinion MW-68 (1979)(stating that
school board could adopt policy of granting salary increases
in future years, but policy would not bind board to actually
make such increases).
SUMMARY
Article III, section 53, of the Texas
Constitution prohibits a county from making
salary increases for county employees
retroactive.
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
p. 5840
Honorable Bill Turner - Page 4 (JM-1113)
RICK GILPIN
Chairman, opinion Committee
Prepared by Sarah Woelk
Assistant Attorney General
p. 5841