                                         The Attorney          General of Texas
                                                           April 26, 1983
JIM MATTOX
Attorney General


                                        Mr. Wilburn C. Rust                    Opinion No. m-27
Supreme      Court Building
P. 0. Box 12546
                                        Travis County Auditor
Austin.    TX. 76711. 2546              Travis County Courthouse               Rs: Salaries of Travis County
5121475-2501                            Austin, Texas   78701                  officers for 1983
Telex    9101674-1367
Telecopier     5121475.0266             Dear Mr. Rust:

1607 Main St.. Suite 1400                    You advise that Travis County recently adopted a new fiscal year
Dallas.   TX. 75201.4709                which begins October 1, 1982, and ends September 30, 1983. See
2141742-6944                            V.T.C.S., art. 1644e. Previously, the county's fiscal year extended
                                        from January 1 to December 31 of each year, and the 1982 budget was
4624 Alberla       Ave.. Suite    160
                                        adopted on that basis. You ask how the 1983 salaries of county
El Paso, TX.       799052793            officers will be affected by the change.
9151533-3464
                                             Section 2 of article 3912k. V.T.C.S., provides that the
                                        commissioners court shall set the salaries, expenses, and other
 -20 Dallas Ave., Suite 202
Houston,     TX. 77002-6966
                                        allowances of elected county and precinct officers during the regular
7131650-0666                            budget hearing and adoption proceedings. Section 6 of that statute
                                        requires that the commissioners court exercise such authority only
                                        after 10 days notice "of the intended salaries, expenses, and
606 Broadway.         Suite 312         allowances to be raised and the amount of the proposed raises."
Lubbock,     TX.    79401-3479
6061747-5236
                                             A notice was published by Travis County stating that adjustments
                                        to salaries and allowances for elected officials were to be considered
4309 N. Tenth. Suite S                  on October 29, 1982, which would "include a cost of living adjustment
McAllen.     TX. 76501-1665
                                        of eleven (11) percent" and that the adjustments would not exceed
512,662.4547
                                        certain "proposed 1983 amounts."       The notice said nothing of
                                        "annualizing" the cost of living adjustments. It did, however, list a
200 Main Plaza, Suite 400               "1982 salary" and a "proposed increase," as well as a "proposed 1983"
San Antonio,  TX. 76205.2797            salary for each position, and it specified that the "effective date
51212254191
                                        for any and all of the above considerations which might be approved is
                                        January 1, 1983." After adoption of an order giving elected officials
An Equal      Opportunity/              a "cost of living increase on an annualized basis of 11% effective
Affirmative     Action     Employer     January 1, 1983." you were informally requested by the conmissioners
                                        court to pay the 1982 salaries until January 1, 1983, but thereafter
                                        to pay the full 11% increase for twelve months during the next nine
                                        months to each officer named in the notice. This would result in an
                                        additional 3 2/3X for each of the nine months from January 1 through
                                        September 30.

                                             The payment schedule informally requested would not comport with
                                        the notice given the public. The notice made no mention of the fact
                                        that the 1982 fiscal year was to be cut short or that the new 1983


                                                              p. 115
Mr. Wilburn C. Rust - Page 2    (JM-27)




salaries with a January 1 "effective date" were not intended to
comensate the named officers for a full _vear from that date. A
misleading notice is no notice. See Colorado County v. J.M. English
Truck Line, 265 S.W.2d 865, 868 (Tz Civ. App. - Galveston 1954, writ
ref'd n.r.e.). Therefore, in the absence of proper notice of such
salary increases, any attempted increase is i&aiid.    -See Attorney
General Opinion MW-516 (1982).

     In our opinion, the notice given would authorize the payment of
the "proposed 1983" salaries on a pro-rata basis for the nine months
remaining in the new October-to-September 1983 fiscal year after
January 1, 1983, but would not authorize the payment of the 11%
increase attributable to the last three months of 1982.           The
commissioners court &,     as opposed to the informal request made of
YOU, appears to adopt a pro-rata approach. It states in pertinent
part:

          It is here ordered by the Commissioners Court of
          Travis County that all Elected Officials be given
          a cost-of-living increase on an annualized basis
          of 11% effective January 1, 1983.       (Emphasis
          added).

The order does not .tie the increase to the new fiscal year, but rather
makes the increase effective at the beginning of a calender year.
Under such circumstances the phrase "on an annualized basis," as used
in the order, can and should be construed as referring to the period
from January 1, 1983 to December 31, 1983, and to indicate a pro-rata
adjustment for the applicable portion of the fiscal year in compliance
with budgetary laws and notice provisions. _See V.T.C.S. art. 1666a,
3912k. See generally 53 Tex. Jur. 2d Statutes 9157. at 223.

                               SUMMARY

             The 1983 salary increases for Travis County
          elected officials are not invalid, but in view of
          the fiscal year change by the county, such
          officers are entitled during the new fiscal year




                                    J&
          to only a pro-rata part of the 1983 annual
          salaries established.

                                          Very truly you
                                                 I


                                          JIM     MATTOX
                                          Attorney General of Texas

TOM GREEN
First Assistant Attorney General



                                 p. 116
Mr. Wilburn C. Rust - Page 3   (JM-27)




DAVID R. RICHARDS
Executive Assistant Attorney General

Prepared by Bruce Youngblood
Assistant Attorney General

APPROVED:
OPINION COMMITTEE

Susan L. Garrison, Chairman
Rick Gilpin
Jim Moellinger
Nancy Sutton
Bruce Youngblood




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