                                              KEN PAXTON
                                         ATTORNEY GENERAL OF TEXAS




                                                March 8, 2017



The Honorable Daphne Session                                Opinion No. KP-0135
Houston County Attorney
401 East Houston Avenue, 2nd Floor                          Re: Whether time spent as a county
Crockett, Texas 75835                                       employee may be considered in determining
                                                            county longevity pay . when the employee
                                                            becomes an elected officer (RQ-0127-KP)

Dear Ms. Session:

        You ask whether time spent as a county employee may be considered in determining county
longevity pay when the employee becomes an elected officer. 1 You tell us that Houston County
(the "County") adopted an employee handbook in 2002 that is applicable to all employees and
public officials. See Request Letter at 1. You also tell us that the county commissioners court
amended the handbook in 2008 to adopt a longevity policy, effective October 1, 200~. See id You
state that the longevity pay policy applies to "employees, those appointed by ·commissioners
Court, and elected officials." Id. at 2. You also state that the policy was again amended on
August 9, 2016, to "codify the ongoing practice of paying longevity pay to elected officials." Id.
You inform us that there are currently six elected county officials who had been county employees
prior to being elected to public office. See id. (identifying the number of years six county
officeholders were county employees prior to their election). You inform us further that each of
the elected officials began receiving longevity pay in December of 2008 and each year thereafter
without any interruption in that longevity pay. See id.

        After the issuance of Attorney General Opinion KP-0060, you are concerned whether the
"longevity pay for elected officials who. were formerly county employees ... would constitute
retroactive pay." Id at 1, 2-3. Opinion KP-0060 considered the continuation oflongevity pay for
a county employee who became a county officer when the county's longevity pay did not include
county officers. See Tex. Att'y Gen. Op. No. KP-0060 (2016). The opinion recognized that the
constitution's prohibition against extra compensation would prohibit the new county officer from
receiving longevity pay under a policy that did not provide for it. See id. at 2. But the opinion
acknowledged a county commissioners court could adopt a new longevity pay policy that included·
county officers on a prospective basis. See id.



          1
           See Letter from Honorable Daphne Session, Houston Cty. Att'y, to Honorable Ken Paxton, Tex. Att'y Gen.
at 2 (Sept. 7, 2016), https://www.texasattomeygeneral.gov/opinion/requests-for-opinion-rqs ("Request Letter").
The Honorable Daphne Session - Page 2          (KP-0135)



        Texas Constitution, article III, section 53 forbids paying "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. This
office consistently recognizes that article III, section 53 prohibits the retroactive awarding of
compensation. See Tex. Att'y Gen. Op. Nos. KP-0060 (2016) at 2 (recognizing that longevity pay
may not be granted retroactively), JC-0376 (2001) at 2 (acknowledging that salary increases may
not be granted retrospectively). The key concern under article III, section 53 is that public funds
are not used to pay an individual an additional amount for services already rendered. See Tex.
Att'y Gen. Op. Nos. JC-0370 (2001) at 2 ("[A] county may not retroactively award or increase
compensation."), JC-0026 (1999) at 2. A policy operates prospectively when a benefit becomes a
term of employment and employees receive the benefit only for work performed after the benefit
is established as a term of employment. See Tex. Att'y Gen. Op. No. DM-129 (1992) at 3-4
(discussing a sick leav~ pool).

         A county commissioners court sets the compensation, as well as all other allowances, for
county and precinct officers and employees paid wholly from county funds. See TEX. Loe. Gov'T
CODE § 152.011. Compensation under section 152.011 can include longevity pay. See Tex. Att'y
Gen. L0-96-007, at 1-2. Longevity pay provides extra compensation based on the amount of time
served. See, e.g., id. at 2 (Longevity pay is "an incremental increase in salary based on length of
service."). In the context of article III, section 53, it is not payment for an employee's past service
but instead payment for current services provided while recognizing a person's enhanced value to
his or her employer because of the person's many years of experience and knowledge. See
United States v. Alger, 151 U.S. 362, 363 (1894) (recognizing in naval context that a component
of longevity pay was "to compensate for increased professional knowledge and efficiency in
officers"). And opinions from this office, including one from a former administration, determined
that a commissioners court could adopt a longevity pay policy that includes county officers, so
long as the longevity pay operated prospectively to the adoption of the policy. See Tex. Att'y Gen.
Op. Nos. KP-0060 (2016) at 2, JC-0026 (1999) at 2 (determining that longevity pay based on total
years of service, including service performed prior to adoption of policy does not violate article
Ill, section 53).

        Article III, section 53 does not preclude a longevity pay formula from including an
individual's service that was rendered prior to the adoption of the longevity pay policy. See Tex.
Att'y Gen. L0-96-007, at 4; see also Tex. Att'y Gen. Op. No. JC-0123 (1999) at 2 (determining
that a commissioners court could adopt a policy allowing unused leave time to follow an employee
who becomes a county officer if the policy operates prospectively). Accordingly, a court would
likely conclude that a county's longevity pay policy for county officials may include an
individual's prior service as a county employee, provided the longevity pay is earned after the
adoption of the longevity policy. Cf Tex. Att'y Gen. Op. No. H-402 (1974) at 2 (concluding that
a commissioners court was not authorized to grant back pay unless there had existed, prior to the
award of back pay, a policy permitting the practice). To the extent the longevity policy became a
county benefit with its adoption in 2008, a court would likely determine the policy was
prospectively effective as of that date, and that longevity pay earned after the policy's effective
date would comport with article III, section 53. See Tex. Att'y Gen. Op. No. GA-0492 (2006) at
2 ("[A] county may provide bonuses based on performance if the county approved a bonus plan
before employee recipients performed the work for which the bonuses are given."); see also
The Honorable Daphne Session - Page 3         (KP-0135)



Request Letter at 3 (stating it is "standard procedure since the longevity policy was created to give
officials credit toward longevity for time earned as an employee").
The Honorable Daphne Session - Page 4      (KP-0135)



                                    SUMMARY

                      Provided any longevity pay is earned after the adoption of
              the longevity policy, a court would likely conclude that a county's
              longevity pay policy for county officials may include the prior
              service of the individual as a county employee.

                                           Very truly yours,


                                          ~fo~
                                           KEN PAXTON
                                           Attorney General of Texas



JEFFREY C. MATEER
First Assistant Attorney General

BRANTLEY STARR
Deputy First Assistant Attorney General

VIRGINIA K. HOELSCHER
Chair, Opinion Committee

CHARLOTTE M. HARPER
Assistant Attorney General, Opinion Committee
