Untitled Texas Attorney General Opinion

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