             THE   ATTORNEY       GESERAL
                      OF TEXAS


                       December 21, 1990



Honorable David Aken      Opinion No.   JM-1268
San Patricia County
  Attorney                Re: Authority of a commissioners
Courthouse, Room 102      court to grant salary increases
Sinton, Texas 78387       to   selected   county employees
                          without amending its budget
                          (RQ-2099)
Dear Mr. Aken:
     You ask whether the commissioners court of San Patricia
County may grant salary increases to county employees
without amending the budget. You state that budgeted funds
not expended for vacant positions in county officials'
offices were redistributed to other employees in         the
respective offices by establishing new "step-grades" within
the offices.1
     The action taken by      the commissioners court     is
reflected by the following scenario contained in your
request. A clerk's position became vacant in an elected
official's office and no replacement was named.        Funds
budgeted for the vacant position were redistributed to other
positions occupied by non-elected employees without any
change resulting in the total amount budgeted for the
office.



     1. Prom the facts you have related we understand the
action taken by the commissioners court was designed to
grant prospective increases for non-elected       positions.
Under these circumstances, the prohibition against retro-
spective compensation contained in section 53 of article III
of the Texas Constitution is not violated.     Nor does the
commissioners court run afoul of the provision of section
151.004 of the Local Government Code prohibiting         the
commissioners court from determining the individual that
fills a position.




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Honorable David Aken - Page 2     (JM-1268)




     Attorney General Opinion JW-326 (1985) concluded that
then article 3912k,   section 2(a), V.T.C.S., now section
152.013 of the Local Government Code, does not prohibit the
commissioners court from fixing the salaries of non-elected
positions at times other than the regular budget hearing.
     Your concern over the action taken is that          the
commissioners court did not enter an order amending the
budget nor make any finding that there was an "emergency" or
"grave public necessity" that would authorize a transfer of
an amount budgeted for one item to another. Subsection (d)
of section 111.010, as adopted by the 71st Legislature and
applicable to commissioners courts in counties with fewer
than 225,000 people, provides:
          (d) The commissioners oourt by order may
       amend the budget to transfer an amount bud-
       geted for one item to another budgeted item
       without authorizing an emergency expenditure.
Acts 1989, 71st   Leg., ch.   167, at 549      (effective Way   25,
1989).
     Each portion is listed as a separate item in the
budget.   While   it is    no longer    necessary for   the
commissioners court to find that an emergency exists to
justify a transfer from one budgeted item to another, the
express provisions of subsection (d) contemplate that the
budget be amended to reflect the transfer from one budgeted
item to another. We believe this to be the case even though
no change occurs in the total amount budgeted for salaries
in the official's office.
                       SUMMARY
          The commissioners court of San Patricia
       County may not grant salary increases to
       selected county employees without amending
       the budget.

                                       very truly   Y      ,


                                   d       A        lkfb
                                       JIM     MATTOX
                                       Attorney General of Texas
MARY KELLER
First Assistant Attorney General




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Honorable David Aken - Page 3    (JM-1268)




Lou MCCREARY
Executive Assistant Attorney General
JUDGE ZOLLIE STEAKLRY
Special Assistant Attorney General
RENEA HICKS
Special Assistant Attorney General
RICK GILPIN
Chairman, Opinion Committee
Prepared by Tom G. Davis
Assistant Attorney General




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