    OFP,CE
         OFTHEATTORNEY
                     GENERAL.
                            STATE
                                OFTEXAS
    JOHN CORNYN




                                         November    16. 1999



The Honorable Homer0 Ramirez                        Opinion No. JC-0147
Webb County Attorney
P.O. Box 420268                                     Re: Effective date of salary increases for county
Laredo, Texas 78042-0268                            officers and employees   (RQ-OOSO-JC)


Dear Mr. Ramirez:

         Youtellusthat  WebbCounty’s 199%1999fiscalyearbeganonOctober            1,199s. Thebudget
for the fiscal year was not adopted, however, until October 13, 1998. You ask whether salary
increases for Webb County officers and employees became effective on and payable from October 1,
when the fiscal year began, or on October 13, when the budget for the fiscal year was adopted by the
commissioners court. For the reasons set forth below, we conclude that the county incurred the
obligation to pay the salary increases, and therefore such increases became effective, when the
budget was formally adopted on October 13.

        With certain exceptions, the commissioners court sets the salary of each county officer and
employee paid wholly from county funds. TEX. Lot. Gov’TCODEANN. 5 152.011 (Vernon 1999).
(We assume it is these types of employees and offtcers about which you ask.) The salary of a county
officer or employee may be increased or decreased only by amending the budget or adopting a new
budget. See id. 55 111.010, 152.013(a); Tex. Att’y Gen. Op. No. JM-1268 (1990). The salaries of
employees and non-elected county officers may be changed by a budget amendment at any time, see
Tex. Att’y Gen. Op. No. JM-326 (1985) at 3-4, while the salaries of elected officers may be changed
only once a year, “during the regular budget hearing and adoption proceedings.” TEX. Lot. GOV’T
CODE ANN. 5 152.013(a) (Vernon 1999). You tell us that no amendment of the prior year’s budget
was made. Thus, the setting of all the salaries or salary increases about which you ask is strictly tied
to the county’s annual budget process.

       County authority to expend county funds in the absence of a budget is restricted. See id.
$ 111.003 (requiring a budget for each fiscal year). “After final approval of the budget, the
commissioners court may spend county funds only in strict compliance with the budget, except in
an emergency.” Id. § 111.010. We gather that the county does not seek an expenditure in excess
ofthe budget for salary increases on the basis of an emergency. Accordingly, the question you ask
depends on whether Webb County may effectuate a salary increase for county officers and
employees before finally approving the budget.
The Honorable   Homer0 Ramirez      - Page 2      (JC-0147)




        A county commissioners court may not grant salary increases to county employees or non-
elected county officials without amending the budget, and may not grant salary increases to elected
county officials outside of the annual budget adoption procedure. See id. 5 152.013(a); Tex. Att’y
Gen. Op. No. JIM-1268 (1990). The budget statute applicable to Webb County sets out detailed
procedures that must be complied with before public funds can be spent. See TEX. Lot. GOV’TCODE
ANN. $5 111.003-,010 (Vernon 1999). After the county judge has prepared the budget, a copy of
the budget must be filed with the county clerk and be made available for inspection by any taxpayer.
Id. 5 111.006. The commissioners court must hold a public hearing, which any county taxpayer may
attend and in which taxpayers may participate. Id. 9 111.007(a). At the conclusion of the public
hearing, the commissioners      court must take action on the proposed budget, with any changes it
considers prudent. Id. 5 111.008. On final approval of the budget by the commissioners court, the
court must tile the budget with the county clerk. Id. 5 111.009. Only upon final approval may the
county levy taxes and spend funds in accordance with the budget. Id. 5 111.010. This process
allows public scrutiny of proposed expenditures and promotes government accountability to the
taxpayers before tax revenues may be committed. The process recognizes “that tax paying citizens
have a vital interest in the appropriation and expenditure ofpublic funds.” Tex. Att’y Gen. Op. No.
V-103 (1947) at 3. To permit salary changes to the budget to be effective before final action by the
commissioners      court subverts this process, reduces government accountability,      and inhibits
taxpayers’ rights to participate in the process of spending public ftmds.

         Our conclusion that the obligation to pay salary increases were incurred and effective as of
the date of final adoption of the budget is confirmed by other salary related provisions applicable to
elected county officers. As we have said, the salaries of elected county officers must be set “at a
regular meeting of the court during the regular budget hearing and adoption proceedings.”           TEX.
Lot. GOV’T CODEANN. § 152.013(a) (Vernon 1999). The adoption ofthe budget triggers the salary
grievance procedure available to elected county officers. See Tex. Att’y Gen. Op. No. DM-405
(1996) at 4. “Before tiling the annual budget with the county clerk, the commissioners court shall
give written notice to each elected county and precinct officer of the officer’s salary and personal
expenses to be included in the budget.” TEX. Lot. GOV’T CODEANN. $152.013(c) (Vernon 1999).
Any officer who is dissatisfied with the budgeted salary may appeal to a grievance committee. Id.
 9 152.016(a). If the grievance committee recommends a salary increase, “the commissioners court
 shall include the increase in the budget before the budget is tiled and the increase takes effect in the
 next budget year.” Id. 5 152.016(c).

          Sections 111.035 and 111.064 of the Local Government Code permit some counties to make
certain expenditures in the absence of a budget: “Until a budget for a fiscal year is adopted by the
commissioners       court, the county may not make payments during that fiscal year except for
emergencies and for obligations legally incurred before thefirst day of the fiscal year for salaries,
utilities, materials, and supplies.” Id. 5 111.035 (emphasis added); see also id. 5 111.064. Section
111.035 applies only to a county with a population of 225,000 or more, see id. 5 111.03 1, and
section 111.064 applies to a county with a population of 125,000 or more but only if the county
chooses to operate under the budget provisions of subchapter C of chapter 111 of the Local
Govennnent Code, see id. 5 111.061.
The Honorable Homer0 Ramirez         - Page 3      (JC-0147)




         These statutes permit some counties to expend funds during an interim period after one
budget has expired and before the next has been adopted only for emergencies or for obligations
“legally incurred before the first day ofthe fiscal year.” Id. $5 111.035, ,064. A budget amendment
adopted before the fiscal year end increasing salaries would be an obligation “legally incurred before
the first day of the fiscal year.” Id. 111.035, ,064. However, because the salary increases you ask
about are tied to the adoption of a new budget, and, as we have said, the obligation for salary
increases under the new budget is not incurred until the budget is approved, in this instance after the
first day of the new fiscal year, these statutes are not pertinent. Moreover, sections 111.035 and
 111.064 do not apply to Webb County. Webb County does not have a population of 225,000 or
more, and though its population is more than 125,000, you tell us that it has chosen to operate under
the budget provisions of subchapter A of the Local Government Code rather than subchapter C.

         We do not mean to suggest that in the absence of express statutory authority to expend funds,
a county may never be found liable for obligations incurred during a budget interim or lapse. “It is
the established law in this state that counties and municipalities will not be permitted to accept and
utilize property or services and evade the payment of a reasonable compensation therefor, because
of an alleged technical defect in their procurement.” Wailer County v. Freelove, 210 S.W.2d 602,
604-05 (Tex. Civ. App.-Galveston       1948, writ ref d n.r.e.) (holding county liable for architect’s fees
even though budget did not provide for expenditure for fees); Harris County v. Neville, 84 S.W.2d
834 (Tex. Civ. App.-Beaumont       1935, no writ) (holding county liable for deputy sheriffs salary for
services performed in absence of budget appropriation but with knowledge and acceptance of
commissioners    court). While an employee or officer may sue to recover unpaid salary under a
quantum meruit theory of liability, such an action is but a common law remedy for contract claims
and does not speak to the effective date of salary increases adopted as part of the county’s budget
process.

         We also conclude that a salary increase adopted on October 13 may not be made retroactive
to October 1, the beginning of the fiscal year. Since the obligations were not incurred until the
budget was approved on October 13, payments dating from October 1 would constitute additional
payments for work already performed in violation of article III, section 53 ofthe Texas Constitution.
Article III, section 53 provides that “[tlhe Legislature shall have no power to grant, or to authorize
any county or municipal authority to grant, any extra compensation, fee or allowance to a public
officer, agent, servant or contractor, after service has been rendered, or a contract has been entered
into, and performed in whole or in part.” TEX. CONST.art. III, § 53. The effect of this provision is
that a salary increase authorized by a commissioners court must operate prospectively from the time
of the authorization. See Pierson v. Galveston County, 131 S.W.2d 27,29 (Tex. Civ. App.-Austin
 1939, no writ); Tex. Att’y Gen. Op. Nos. JM-1113 (1989) at 2-3; H-11 (1973) at 4.

        For example, in Attorney General Opinion IM-1113, this office considered whether
employee pay raises authorized by a commissioners court in the middle of a budget year could be
made retroactive to the beginning of the budget year. Tex. Att’y Gen. Op. No. JM-1113 (1989) at
l-2. Funds had been budgeted for raises when the budget was approved, but the particular raises
themselves were not approved until several months later in the budget year. This office concluded
The Honorable   Homer0 Ramirez      - Page 4      (X-0147)




that article III, section 53 prohibited the county from making the pay iaises retroactive   to the
beginning of the budget year. Id. at 2-3.

       Accordingly, we conclude that salary increases for county officers and employees may be
paid only from the time a budget providing for the increases is finally approved by the
commissioners court. The Webb County salary increases about which you ask became payable on
October 13, when the budget for the new fiscal year was adopted.

                                         SUMMARY

                        When a county budget is not approved by the commissioners
                court until after the beginning of the fiscal year, salary increases for
                county and precinct officers and employees do not go into effect until
                the budget is approved.




                                                Attorney General of Texas



ANDY TAYLOR
First Assistant Attorney General

CLARK RENT ERVIN
Deputy Attorney General - General Counsel

ELIZABETH ROBINSON
Chair, Opinion Committee

Barbara Griffin
Assistant Attorney General - Opinion Committee
