                                ATTORNEY GENERAL OF TEXAS
                                              GREG        ABBOTT




                                                 March 12,2004



The Honorable Tempie T. Francis                           Opinion No. GA-O 162
Motley County Attorney
P. 0. Box 7                                               Re: Whether, if a county commissioners        court
Matador, Texas 79244                                      invalidly set the county sheriff’s salary at an
                                                          amount higher than the increased proposed salary
                                                          listed in the published notice, the county may pay
                                                          the sheriff only the salary he received in the
                                                          previous budget year (RQ-0108-GA)


Dear Ms. Francis:

         You ask whether, if the Motley County Commissioners Court (the “Commissioners Court”)
invalidly set the county sheriffs salary at an amount higher than the increased proposed salary listed
in the published notice, the county may pay the sheriff only the salary he received in the previous
budget year. ’

         You state that, in the 2002-2003 fiscal year, the Motley County Sheriff (the “Sheriff’)
received an annual county salary of $2 1,440. See Request Letter, supra note 1, at 2. On August 7,
2003, the Commissioners Court published notice of a proposed increase in the county sheriffs salary
in the local newspaper, the Motley County Tribune, in accordance with section 152.0 13 of the Local
Government Code. See id.2 The notice indicated that the county proposed increasing the Sheriffs
salary for the 2003-2004 fiscal year to $24,000. See id. When the Commissioners Court adopted
the budget, the budget included an annual salary of $25,826 for the Sheriff. See id.

         In a letter to this office, the Sheriff indicates that the Commissioners Court actually approved
this higher salary ($25,836) “before the notice was published” at a budget workshop held on July 3 1.
Sheriffs Letter, supra note 2, at 1. The Sheriff further states that the County Judge “incorrectly tiled
and posted an amount lower than that which the Commissioners had voted on.” Id. The increase



         ‘See Letter from Honorable Tempie T. Francis, Motley County Attorney, to Honorable Greg Abbott, Texas
Attorney General, at 1 (Sept. 10, 2003) (on file with Opinion Committee) [hereinafter Request Letter]; see also Letter
from Honorable Tempie T. Francis, Motley County Attorney, to Honorable Greg Abbott, Texas Attorney General, at
1 (Oct. 13,2003) (on file with Opinion Committee).

         2See also Letter from Honorable James B. “Jim” Meador, Motley County Sheriff, to Nancy S. Fuller, Chair,
Opinion Committee, Offke of the Attorney General, at l-2 (Oct. 10,2003) (on file with Opinion Committee) [hereinafter
Sheriffs Letter].
The Honorable Tempie T. Francis        - Page 2      (GA-0162)




in the Sheriffs salary was not discussed at the budget hearing on August 26, 2003, at which the
budget was finally adopted. See id. at 2.

         Section 152.013(a) of the Local Government Code requires a county commissioners court
to set elected county officers’ salaries “at a regular meeting of the court during the regular budget
hearing and adoption proceedings.”       TEX. Lot. GOV’T CODE ANN. 5 152.013(a) (Vernon 1999).
Subsection (b) requires a commissioners court to publish special notice of proposed salary increases:

                           Before the 10th day before the date of the meeting, the
                  commissioners     court must publish in a newspaper of general
                  circulation in the county a notice of:

                                  (1) any salaries, expenses, or allowances that
                          are proposed to be increased; and

                                 (2) the amount of the proposed increases.

Id. 8 152.013(b).

         Elected county officers’ salaries may be changed “only once a year.” Tex. Att’y Gen. Op.
No. JC-0147 (1999) at 1. Based on section 152.013(a)% plain language, this office “has repeatedly
concluded” that a county commissioners court may consider and adopt elected county officers’
salaries only during “the regular, annual budget hearing and adoption proceedings.” Tex. Att’y Gen.
LO-95-018, at 2; see, e.g., Tex. Att’y Gen. Op. Nos. JM-839 (1988) at 6, JM-326 (1985) at 4, H-l 1
(1973) at 4. A county commissioners court may not change elected county officers’ salaries “at any
other time.” Tex. Att’y Gen. LO-95-018, at 2.

        This office also has determined that the required notice, posted under section 152.013(b),
must inform the public of the “maximum potential salary increases for elected county. . . officials.”
Tex. Att’y Gen. Op. No. JC-0255 (2000) at 5. The section thereby “provides a mechanism for the
public to scrutinize proposed salary increases for elected county and precinct officers” by requiring
notice “of the potential amount of salary increases rather than just the mere fact that the
commissioners court is considering increasing the salaries.” Id. at 3. Salary increases above the
published proposals are invalid because the public had insufficient notice. See id. at 5.

          Because a commissioners court may not adopt salaries at a meeting outside of the “regular,
annual    budget hearing and adoption proceedings,” a commissioners court that failed to publish
proper    notice has “no legal mechanism” by which to remedy an error after the budget has been
finally   adopted. Tex. Att’y Gen. LO-95-01 8, at 2. “As a result, county officers’ salaries . . . must
remain     at last year’s level until the next budget cycle.” Id.

        Accordingly, the salary adopted in the      budget, $25,826, is invalid. The public had not
received proper notice, as required by section        152.013(b), of that increase. The fact that the
Commissioners Court had approved that amount         in its budget workshop did not suffice because the
notice listed $24,000 as the proposed increased     salary.
The Honorable Tempie T. Francis    - Page 3      (GA-0162)




        Moreover, the Sheriff may not receive the amount that was published in the notice, $24,000.
A commissioners court may act only by adopting an official order. See Garcia v. Duval County, 354
S.W.2d 237,239 (Tex. Civ. App.-San Antonio 1962, writ ref d n.r.e.). Here, the Commissioners
Court did not vote, at its “regular meeting . . . during the regular budget hearing and adoption
proceedings,” to provide the Sheriff with a salary of $24,000. TEX. Lot. GOV’T CODE ANN.
5 152.013(a) (V emon 1999). Thus, the Sheriff may receive a salary only equal to the amount he
received in the prior fiscal year, $2 1,440.

        You also ask how the Commissioners Court may now increase the sheriffs salary, to either
the published amount, $24,000, or the adopted amount, $25,826. In accordance with our prior
opinions, we conclude that the Commissioners Court may not increase the Sheriffs salary until the
next budget is properly adopted. See Tex. Att’y Gen. LO-95-01 8, at 2.
The Honorable Tempie T. Francis    - Page 4       (GA-0162)




                                      SUMMARY

                        The Motley County Commissioners Court, which adopted a
               budget including a salary for the County Sheriff higher than that
               posted in the notice required by section 152.013(b) of the Local
               Government Code, may pay the Sheriff only the salary he received in
               the prior budget year. See TEX. Lot. GOV’T CODEANN. 8 152.013(b)
               (Vernon 1999). Because of the improper notice, the amount in the
               adopted budget is invalid. Additionally, the County may not pay the
               Sheriff the increased proposed salary listed in the published notice
               because the Commissioners Court did not vote, at its “regular meeting
               . . . during the regular budget hearing and adoption proceedings,”
               to provide the Sheriff with that salary. Id. 4 152.013(a).        The
               Commissioners Court may not increase the Sheriffs salary until the
               next budget is properly adopted.

                                              Very truly yours,




                                                         eneral of Texas


BARRY R. MCBEE
First Assistant Attorney General

DON R. WILLETT
Deputy Attorney General for Legal Counsel

NANCY S. FULLER
Chair, Opinion Committee

Kymberly K. Oltrogge
Assistant Attorney General, Opinion Committee
