                                               KEN PAXTON
                                          ATTORNEY GENERAL OF TEXAS



                                             December 21, 2015



The Honorable Marco A. Montemayor                           Opinion No.       KP-0052
Webb County Attorney
1110 Washington Street, Suite 301                           Re: Authority of a commissioners court,
Laredo, Texas 78040                                         after adoption of the budget, to adopt a
                                                            standing budget policy that automatically
                                                            reduces the salary line item of an employee of
                                                            an elected official upon the employee's
                                                            departure from the position (RQ-0033-KP)

Dear Mr. Montemayor:

         You ask about a commissioners court's authority, after adopting its annual budget, to adopt
a standing budget policy that automatically reduces the salary line item for a position when an
employee departs from the position. 1 You state that the Webb County Commissioners Court
adopted its 2014-2015 fiscal year budget on September 22, 2014, under subchapter B of the Local
Government Code. Request Letter at 2-3. You further state that in November 2014, the
commissioners court adopted "standing orders" or budget policy "requiring that during the fiscal
year, the county administrative services department [the "Department"] will immediately reduce
the salary, as directed by [the county's adopted policy], upon the vacancy of any county employee
slot, regardless of department or elected office." Id. at 3. You explain that the "policy requires all
salaries of vacated slots ... to be reduced to an original starting point which is drastically lower.
than the originally budgeted, approved and adopted salary." Id. You further explain that a
reduction pursuant to the policy requires no action by the commissioners court and is executed
according to a predetermined line-item transfer of the excess to another line item. Id. at 4. You
inform us that, after the court coordinator for the 406th District Court retired during the year, the
district judge for the court hired a new court coordinator and requested that compensation for the
position continue at the salary level budgeted in September 2014. Id. at 3. You state that the
Department refused the compensation request due to the standing-orders policy that would require
a reduction in salary for a position that has been vacated and filled by a new employee. Id. You
further state, however, that the commissioners court has agreed to pay the court coordinator for
the remainder of the fiscal year the amount budgeted in September 2014. Id.

       While your- questions contain multifarious sub-issues, in essence you ask two questions.
The first is whether a commissioners court is authorized to adopt standing orders to reduce a
position's salary when the position has been vacated and filled by a new employee, without further

         1
          See Letter from Honorable Marco A. Montemayor, Webb Cty. Att'y, to Honorable Ken Paxton, Tex. Att'y
Gen. at l (July 15, 2015), https://www.texasattomeygeneral.gov/opinion/requests-for-opinion-rqs ("Request Letter").
The Honorable Marco A. Montemayor - Page 2                     (KP-0052)



action by the comm1ss10ners court. The second question 1s whether such orders may be
implemented with respect to a court coordinator.

       A commissioners court has "only those powers expressly given by either the Texas
Constitution or the Legislature" and "the implied authority to exercise the power necessary to
accomplish its assigned duty." City of San Antonio v. City of Boerne, 111 S.W.3d 22, 28 (Tex.
2003). But a commissioners court's duty to manage a county's financial affairs "carries with it
broad discretion in making budgetary decisions." Griffin v. Birkman, 266 S.W.3d 189, 194 (Tex.
App.-Austin 2008, pet. denied). A commissioners court has general authority to set the salaries
of most county employees. TEX. Loe. Gov'T CODE§ 152.011. Salary levels are among the fiscal
matters considered during the preparation of the county's annual budget under one of three
subchapters in chapter 111 of the Local Government Code that are applicable to particular
counties. Id. §§ 111.001-.014 (subchapter A, budget preparation in counties with a population of
225,000 or less), .031-.045 (subchapter B, budget preparation in counties with a population of
more than 225, 000), .061-. 07 5 (subchapter C, alternative method of budget preparation in counties
with a population of more than 125,000). After final adoption of the county's budget, the
commissioners court must "spend county funds only in strict compliance with the budget," with
limited exceptions. Id. §§ 111.0lO(b), .041(b), .070(a). Thus, once a salary has been approved
and adopted in the final budget, it cannot be reduced except as permitted under chapter 111. See
Tex. Att'y Gen. Op. No. JC-0131 (1999) at 3 (stating "once the salaries of county officers and
employees are set, the salaries may not be reduced, outside of the regular budget adoption and
amendment process").

         Chapter 111 provides two exceptions that allow a commissioners court to amend a final
 budget. First, the final budget may be amended for an emergency expenditure, but only in "a case
 of grave public necessity to meet an unusual and unforeseen condition that could not have been
 included in the original budget through the use of reasonably diligent thought and attention." TEX.
 Loe. Gov'T CODE§§ 111.0lO(c), .041(b), .070(b). Because, as you describe it, the standing order
·to reduce a salary is automatic without regard to particular circumstances, it is not authorized under
 the emergency exception. Second, a commissioners court may amend the budget outside of an
 emergency by transferring an amount budgeted for one item to another budgeted item. Id.
 §§ 111.0lO(d), .041(c), .070(c)(l). In particular circumstances, courts have upheld the reduction
 of a salary by transfer from one budgeted item to another. See Gattis v. Duty, 349 S.W.3d 193,
 207 (Tex. App.-Austin 2011, no pet.); Griffin, 266 S.W.3d at 201-02. We are not aware of any
 provision in chapter 111 that prohibits as a matter oflaw the adoption of an order that automatically
 transfers funds budgeted for a position when the position has been vacated and filled by a new
 employee. 2 But whether a commissioners court may transfer funds budgeted for the salary of a


        2
          A commissioners court may not delegate its powers requiring the exercise of judgment and discretion absent
statutory authority. Guerra v. Rodriguez, 239 S.W.2d 915, 920 (Tex. eiv. App.-San Antonio 1951, no writ).
Accordingly, a commissioners court may not delegate its discretionary authority to transfer funds from one item to
another except as authorized by law. See Tex. Att'y Gen. Op. No. GA-0154 (2004) at 4. But see TEX. Loe. Gov'T
CODE§ 11 l.070(c) (2) (authorizing a commissioners court in a county operating under subchapter C, to designate
another officer or employee to "amendthe budget by transferring amounts budgeted for certain items to other budgeted
 The Honorable Marco A. Montemayor - Page 3                      (KP-0052)



 specific employee consistently with chapter 111 and other applicable law depends on the particular
 circumstances. For example, a commissioners court may not exercise its budgetary authority over
 salaries to transfer funds in a manner that prevents an elected officer from performing the duties
 of office. Tex. Att'y Gen. Op. No. GA-0037 (2003) at 5.                                   ·

          More importantly, the commissioners court's authority to reduce the salary of a particular
  employee may be limited by other law. The compensation of several officers and employees is
  governed by other statutes specifically applicable to the officer or employee. See, e.g., TEX. Gov'T
  CODE§§ 41.106 (staff of prosecuting attorney), 52.051 (district court reporter); TEX. Loe. Gov'T
  CODE§ 152.013(a) (elected county officials). Thus, while a commissioners court may have general
  authority to adopt standing orders to reduce compensation for a position that has been vacated and
  filled by a new employee, whether the policy may be implemented with respect to a particular
· position depends on whether other law governs the compensation for the position. As this office
  has previously noted, "[s]tatutes specifically applicable to a particular county officer may provide
  the officer with more or less authority, relative to the commissioners court, and may lead to a
  different result." Tex. Att'y Gen. Op. No. GA-0037 (2003) at 1 (determining that the
  commissioners court did not have the authority to reduce compensation of an elected county
  official's employee under particular circumstances).                        ·

         The second question concerns the compensation of court coordinators under section 74 .104
 of the Government Code. Request Letter at 2. The statute provides:

                   (a) The judges shall determine reasonable compensation for the
                       court coordinators, subject to approval of the commissioners
                       court.
                   (b) Upon approval by the commissioners court of the position and
                       compensation, the commissioners court of the county shall
                       provide the necessary funding through the county's budget
                       process. County funds may be supplemented in whole or part
                       through public or private grants.

 TEX. Gov'T CODE § 74.104. Under section 74.104, it takes two actions to establish a court
 reporter's compensation: the judge must determine reasonable compensation and the
 commissioners court must approve it. Id. The statute does not authorize a commissioners court
 to unilaterally set the court coordinator's salary without the judge's determination of reasonable
 compensation. As this office observed about a similar statute, section 74.104 appears designed to
 require the judge and the commissioners court to establish a court coordinator's compensation by
 collaboration, giving neither final authority to set the salary. See Tex. Att'y Gen. Op. No. GA-
 0952 (2012) at 2 (construing the statutory authority of the county judge and commissioners court
 to establish the salary of the Van Zandt County Court at Law court reporter). A standing order
 that automatically reduces the court coordinator's salary upon the happening of a contingency
 infringes on the judge's authority to determine reasonable compensation in contravention of


 items"). A commissioners court may delegate ministerial or administrative tasks necessary to carry out its budgetary
 responsibilities, provided that it does not delegate its discretionary decision-making authority. See Tex. Att'y Gen.
 Op. No. GA-0839 (2011) at 2-3.
The Honorable Marco A. Montemayor - Page 4         (KP-0052)



subsection 74.104(a). Accordingly, section 74.104 of the Government Code does not permit a
commissioners court to reduce a court coordinator's salary by automatic operation of standing
county policy without a determination of reasonable compensation by the judge who selected the
court coordinator.
The Honorable Marco A. Montemayor - Page 5          (KP-0052)



                                    SUMMARY

                     Chapter 111 of the Local Government Code does not
              prohibit as a matter of law the adoption of an order that
              automatically transfers funds to reduce compensation for a position
              when the position has been vacated and filled by a new employee.
              Whether a commissioners court may implement such an order with
              respect to a specific position depends on the particular
              circumstances, including any law that specifically governs
              compensation for the position.

                      Section 74.104 of the Government Code does not permit a
              commissioners court to reduce · a court coordinator's salary by
              automatic operation of standing commissioners court orders without
              a determination of reasonable compensation by the judge who
              selected the court coordinator.

                                            Very truly yours,




                                            KEN PAXTON
                                            Attorney General of Texas



CHARLES E. ROY
First Assistant Attorney General

BRANTLEY STARR
Deputy Attorney General for Legal Counsel

VIRGINIA K. HOELSCHER
Chair, Opinion Committee

WILLIAM A. HILL
Assistant Attorney General, Opinion Committee
