The Attorney General of Texas
October 2, 1978
JOHN L. HILL
Attorney General
Honorable John W. LaGrone Opinion No. H-1251
Hutchinson County Attorney
P. 0. Box 995 Re: Salary of county auditor
Borger, Texas 79007 and assistant county attorney.
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Dear Mr. LaGrone:
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You ask two questions concerning the setting of salaries to be paid by
the commissioners court.
.u Does the District Judge of Hutchiison County
possess the discretion to set the annual salary of
the County Auditor at an annual sum in excess of
that being paid by Hutchinson County to the Tax
Assessor-Collector?
2) Do the grievance procedures set out in Vernon’s
202Emuhny.~312 Annotated Civil Statutes, 39l2k, Section 2, apply
labbodLnL76401 to the Assistant County Attorney of Hutchinson
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County, Texas?
The statute which governs the appointment and salary of the County
Auditor in Hutchinson County is article 1645, V.T.C.S., which states:
. . . there shall ba appointed every two years an
auditor of accounts and finances, the title of said
office to be County Auditor, who shall hold his office
for two years and who shalt receive as compensation
for his services an annual salary from -the County
General Fund of not more than the amount allowed or
paid the Assessor-Collector of Taxes in hi county,
such salary of the County Auditor to be fixed and
determined by the District Judge or District Judges
making such appointment. . . .
-See V.T.C.S. art. 3912k, S 7(3) (inapplicable to county auditors).
p. 4968
Honorable John W. LaGrone - Page 2 (Ii-1251)
The statute provides that the district judge may not set the county auditor’s
saIary in excess of that being paid the tax assessor-collector.
In Vitopil v. Ware, 280 S.W.2d 378 (Tex. Civ. App. - Waco 1955, no writ) the
court, in construing article 1645, held that the district judge could not set the
county auditor’s salary at a level in contravention to plain language of the statute.
See also Attorney General Opinion H-571 (1975). You suggest that Commissioners
Court of Lubbock County v. Martin, 471 S.W.2d 100 (Tex. Civ. App. - Amarillo 1971,
writ ref’d n.r.e.) may have altered vitopil; however, the Commissioners Court case
was based on a different statute and specifically distinguished the earlier case.
You also ask whether the county attorney may appeal to the grievance
committee established by article 3912k, section 2 for an increase in the salary of
the assistant county attorney. Article 3912k, section 2(d) provides in part:
Any elected county or precinct officer who is aggrieved
by the setthtg of his salary, expenses, or other allowance by
the commissioners court may request a hearing before the
committee.
You suggest that the assistant% salary is an expense or allowance of the county
attorney’s office which is set by the commissioners court.
Section 1 of article 3912k specifies that the commissioners court “shall fii the
amount of compensation, office expense, travel expense, and all other allowances
for county and precinct officials and employees who are paid wholly from county
funds. . . .n (Emphasis added). We believe the underlined portions of section 1
indicate the scope of thii term “expenses” for purposes of article 3912k. It includes
the outlay of money directly related to the individual officer’s compensation. See
Letter Advisory No. 89 (1975). The county attorney’s “expenses” do not encompass
the entire budget of his office including the assistant’s salary, but only his
expenditures in performing his own duties. We have previously determined that the
position of an officer’s secretary did not constitute an office expense within article
3912k. Attorney General Opinion H-35 (1973); see Casey v. State, 289 S.W. 428
(Tex. Civ. App. - Texarkana 1926, writ ref’d) nxpenses” does not include the
salaries of assistants).
We do not believe the term “allowances” should be construed as broader in
scope than “expenses.” The “ejusdem generis” rule of statutory construction is
applicable to this provision. Where an enumeration of specific things is followed by
a more general word, the general word is held to refer to things of the same kind as
those specifically named, and is not construed in its widest meaning. Stanford ”
a, 181 S.W.2d 269 (Tex. 1944); Goldring v. Goldring, 523 S.W.2d 749(Tex.iv.
4~. - Fort Worth 1975, writ ref’d n.r.e.). Like “expenses,” we believe
“allowances” must be construed to cover the money an officer or employee pays out
in performing his own duties. -See Letter Advisory No. 89 (1975) (referring to travel
p. 4969
Honorable John W. LaGrone - Page 3 (H-1251)
“expense” and %llowance*i interchangeably). We do not believe an officer’s
“allowance” includes the salary, expenses, and allowances paid to his assistant.
Attorney General Opinion H-1238 (1978). Consequently, the county attorney may
not use the grievance procedure established by article 3912k, section 2 to seek a
salary increase for his assistant. See also V.T.C.S. art. 332a; Attorney General
Opinions H-922 (1977); H-908 (1976).
SUMMARY
The District Judge of Hutchinson County may not set the
salary of the county auditor at a level higher than that being
paid to the tax assessor-ollector. The County Attorney of
Hutchinson County may not appeal the salary of the
assistant county attorney to the grievance committee
established pursuant to article 3912k, section 2, V.T.C.S.
APPROVED:
DAVID MAENDALL, First Assistant
Opinion Committee
p. 4970