    CWFICE OF THE ATTORNEY   GENERAL.   STATE OF TEXAS

    JOHN    CORNYN




                                                   June 2 1,200O



The Honorable Nolan B. Wickel, Jr.                         Opinion No. JC-0232
Henderson County Attorney
Henderson County Courthouse, Room 100                      Re: Whether a state salary supplement should
Athens, Texas 75751                                        be included in determining who is the “highest
                                                           paid elected county officer” for purposes of
                                                           section 150.032 oftheTexas Local Government
                                                           Code (RQ-0174-X)

Dear Mr. Wickel:

         The Local Government Code provides that the total compensation that may be paid to a
county auditor may not exceed the amount received by the highest paid elected county officer who
is not a statutory county court judge. You ask whether the calculation of the compensation of the
“highest paid elected county officer” includes the salary supplement derived from state funds. For
the reasons set forth below, we conclude that the state salary supplement should be included in the
calculation.

         The county auditor’s salary is set by majority vote of the district judges. TEX. Lot. GOV’T
CODEANN. 5 152.031(a) (Vernon 1999). Section 152.032 oftheLoca1 Government Codeprovides,
in relevant part:

                         (a) The amount of the compensation and allowances of a
                 county auditor may not exceed the amount of the compensation and
                 allowances received from all sources by the highest paid elected
                 county officer, other than a judge of a statutory county court, whose
                 salary and allowances are set by the commissioners court.

Id. $ 152.032(a). Under the terms of this statute, a county auditor’s “compensation and allowances”
are limited to those of “the highest paid elected county officer other than a judge of a statutory
county court.” Two qualifications are imposed: (1) the referenced “highest paid elected county
officer” must be one “whose salary and allowances are set by the commissioners court”; and (2) the
relevant amount of “compensation and allowances” includes that which is “received from all
sources.” District judges and district attorneys are excluded from the calculation required by section
 152.032 because their compensation is set by the legislature. TEX. CONST.art. 5,§ l-a; TEX. GOV’T
CODEANN. 5 46.003(a) (Vernon Supp. 2000).
The Honorable Nolan B. Wickel, Jr. - Page 2           (JC-0232)




         You indicate that the county attorney is the highest paid elected county officer in Henderson
County. Telephone Conversation with Honorable Nolan B. Wickel, Jr., Henderson County Attorney
(May 2, 2000). A county attorney who fuhills certain criteria is entitled to a salary supplement
according to a complex formula described in section 46.003 1 ofthe Government Code. TEX. GOV'T
CODEANN. 5 46.003 1 (Vernon Supp. 2000). A county attorney who receives, from state and county
funds combined, a salary “that is equal to or exceeds 80 percent of the benchmark salary,” is
prohibited from engaging in the private practice of law. rd. 5 46.005. The “benchmark salary” is
defined as “the salary that is provided for a district judge in the General Appropriations Act.” Id.
fi 46.001.

        The question before us is how to apply the two qualifications of section 152.032 ofthe Local
Government Code. If one focuses solely on the “received from all sources” language, it is evident
that the state supplement must be included. On the other hand, it has been suggested that the
supplement should not be included because it is derived from state funds and, as a consequence,
“set” by the legislature rather than by the commissioners court.

       In our opinion, this view is misplaced.     The salary supplement    is not paid directly to the
county attorney, but rather to the county:

                        (d) At least annually the comptroller shall pay to the salary
                fund of each county that is entitled to receive funds under this section
                an amount authorized under this section to supplement the salary of
                the county prosecutor.

Id. 5 46.003 l(d). Thus, the full panoply of“salary and allowances” is still “set by the commissioners
court.” Some portion of “salary and allowances” is derived from taxes and fees collected by the
county; another portion is derived from the state salary supplement. Furthermore, acommissioners
court is specifically prohibited from reducing “the county funds provided for the salary or office of
prosecutor as a result of the funds” provided by the state. Id. 5 46.006. Since section 152.032 of the
Local Government Code clearly specifies that the calculation is to include “the amount of
compensation and allowances received from all sources, ” it follows that the state supplement paid
to the county attorney should be included in determining the maximum calculation that may be paid
to the county auditor.
The Honorable Nolan B. Wickel, Jr. - Page 3       (X-0232)




                                     SUMMARY

                     The maximum amount of compensation that may be paid to
              the county auditor of Henderson County is the total amount of
              compensation paid to the county attorney, including the state salary
              supplement.




                                            Attorney General of Texas



ANDY TAYLOR
First Assistant Attorney General

CLARK RENT ERVIN
Deputy Attorney General - General Counsel

ELIZABETH ROBINSON
Chair, Opinion Committee

Rick Gilpin
Assistant Attorney General - Opinion Committee
