                                                June 7,200O



The Honorable Michael G. Mask                        Opinion No. JC-0227
Jack County Attorney
Courthouse, Third Floor                              Re: Whether a county may pay the employer’s
Jacksboro, Texas 76458                               share of employment taxes on state “supplemental
                                                     salary compensation” paid to a county attorney
                                                     pursuant to section 46.0031 of the Government
                                                     Code from the state-provided funds (RQ-0166-JC)

Dear Mr. Mask:

         The Seventy-sixth Legislature adopted a new statute, section 46.0031 of the Government
Code, providing for state-paid “supplemental salary compensation” for county attorneys. You ask,
in essence, whether a county may pay the employer’s share of employment taxes on this
“supplemental salary compensation” from the state-provided funds. We conclude that a county may
not pay the employer’s share of employment taxes on the “supplemental salary compensation” from
the state-provided funds.

         As you note, the Seventy-sixth Legislature enacted several bills supplementing the salaries
of certain county judges’ and county attorneys.* See Letter from Honorable Michael G. Mask, to
Honorable John Comyn, Texas Attorney General, at 1 (Dec. 21, 1999) (on tile with Opinion
Committee) [hereinafter “Request Letter”]. Your first question is as follows:

                         May a county commissioners court regard a state legislated
                and appropriated salary supplement directed to a county or precinct
                elected official or employee as being inclusive of the matching cost
                associated with county benetit[s] and related payroll matching
                expenses when the legislation authorizing the supplement does not
                specify otherwise?

Id. We gather you are concerned about whether such state-provided supplements may be used to pay
the employer’s share of employment taxes that are paid for by both the employee and the employer,



        ‘See House Bill 1123, Act of May 30,1999,76th Leg., RX, ch. 1572,1999 Tex. Gen. Laws 5404; House Bill
3211, Act of May 30, 1999,76th Leg., R.S., ch. 1467, $9 1.08..09, 1999 Tex. Gen. Laws 4996, 5001.

        ‘See House Bill 804, Act of May 26, 1999,76th Leg., R.S., ch. 1570, $ 1, 1999 Tex. Gen. Laws 5392.
The Honorable Michael G. Mask - Page 2             (X-0227)




such as Federal Insurance Contributions Act (“FICA”) taxes for social security coverage. See
generally 26 U.S.C. ch. 21 (1994) (FICA); see also TEX. GOV’T CODE ANN. ch. 606, subch. B
(Vernon 1994 & Supp. 2000) (authorizing political subdivision to make FICA contributions under
an agreement to obtain social security coverage). Although the introduction to your query mentions
the county judge supplement and your first question speaks generally of state supplements for “a
county or precinct elected official or employee,” most of your letter focuses on House Bill 804 and,
more particularly, its provisions establishing a state supplement for county attorneys. See Request
Letter at l-2. For this reason, we limit our analysis to the state supplement for county attorneys.

         The Seventy-sixth Legislature amended chapter 46 of the Government Code in House Bill
804 to provide state supplemental      salary compensation    for a “county prosecutor,” i.e. “a
constitutional county attorney who does not have general felony jurisdiction and who is not a state
prosecutor.” TEX. GOV’TCODEANN. 5 46.001(l) (Vernon Supp. 2000) (as amended by Act ofMay
26,1999,76th Leg., R.S., ch. 1570, $J1,1999 Tex. Gen. Laws 5392). House Bill 804 added section
46.003 1 of the Government Code, which provides in pertinent part:

                   (a) Except as provided by Subsection(b), each county that has a
               county prosecutor is entitled to receive from the state supplemental
               salary compensation     to be paid by the county to the county
               prosecutor.      A county with no county prosecutor is not entitled to
               receive the salary supplement funds provided by this section.




                    (c) If the receipt of compensation under this section causes the
               gross salary of a county prosecutor to exceed the benchmark salary,
               or if any amount ofthe compensation is waived by the prosecutor, the
               excess or waived amount shall be used for expenses of the county
               prosecutor’s of&e.

                    (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.

                     (e) A county attorney who does not have criminal prosecution
                duties or who has criminal prosecution duties only upon request of
                the district attorney is entfiled to receive from the state supplemental
                salary compensation that is equal to one-half the amount the county
                attorney would be eligible for under Subsection (a) or (b). The
                remainder of the supplement shall be used for expenses of the county
                attorney’s office. This subsection does not apply to a county attorney
The Honorable    Michael G. Mask - Page 3          (X-0227)




                 who is responsible for the prosecution   ofjuvenile   justice cases under
                 Title 3, Family Code.

Id. 5 46.0031.   In addition, House Bill 804 amended section 46.006 to provide:

                      (a) It is the purpose of this chapter to increase the effectiveness
                 of law enforcement in this state and to increase the funds available for
                 use in prosecution at both the felony and misdemeanor levels.

                     (b) The commissioners court in each county that has a prosecutor
                 subject to this chapter may not reduce the county funds provided for
                 the salary or office of the prosecutor as a result of the funds provided
                 by this chapter.

Id. $46.006.

         Section 46.0031 does not expressly address whether the county must pay the employer’s
share of employment taxes on this “supplemental salary compensation” from county funds or
whether it may use the state-provided funds to pay the taxes. Furthermore, the section 46.006(b)
limitation on reducing county funding for the salary or oftice of the county attorney falls short of a
mandate that the county increase such funding. It does not resolve whether the state-provided funds
may be used to pay the employer’s share of employment taxes on the state supplement or whether
county funds must be used for this purpose.

         Texas courts do not appear to have addressed the issue of whether a state-provided
supplement of this kind may be used to pay the employer’s share of employment taxes. Although
this office has addressed whether employer FICA contributions are included in an offtcer’s salary
on several occasions, in each case a statute specifically resolved the issue. See Tex. Att’y Gen. Op.
No. JM-322 (1985) (because former article 69511of the Revised Civil Statutes specifically excluded
state-paid FICA contributions from the salary of a district judge, the FICA contributions were not
to be used in calculating district judge’s salary as basis for determining salaries of county court
judges); Tex. Att’y Gen. LO-95-074 (whether “total salary” of judge included employer FICA
contributions depended upon wording ofstatute); LO-93- 19 (term “minimum annual salary” ofjudge
 in former Government Code section 25.0005 included portion ofjudge’s FICA contribution paid by
 state or county). Thus, we are not aware of any legal precedent that would provide guidelines
regarding whether state funds appropriated for salary supplements for county officers may be used
 for the county’s share of employment taxes.

        We resolve your question by reference to the general statutory scheme and the legislative
history of section 46.003 1. Federal law provides that both the employer and the employee pay a
share of the tax for old-age, survivors, and disability insurance. See 26 U.S.C. $3 3101 (tax on
employee), 311 I (tax on employer) (1994). Subchapter B of chapter 606 of the Government Code
authorizes political subdivisions in this state to pay the employer’s share of taxes in order to obtain
The Honorable   Michael G. Mask - Page 4          (JC-0227)




social security coverage for their employees. See TEX. GOV’T CODEANN. 5 606.027 (Vernon 1994)
(political subdivision pays matching contribution); seealso id. $5 606.001(3)(A) (defining “political
 subdivision” to include a county), .021(l) (defining “employee” to include an officer of a political
 subdivision), ,026 (a) (“The governing body of apolitical subdivision may make contributions under
 an agreement to obtain social security coverage.“); Tex. Att’y Gen. Op. No. V-l 198 (1951) at 6
 (provisions of former article 695g ofthe Revised Civil Statutes, now Government Code chapter 606,
 subchapter B, place financial responsibility on participating counties and cities). We believe that
 these statutes create a presumption that the public employer will pay the employer’s share of the tax,
just as the public employee will pay the employee’s share.

        The effect of using state funds appropriated for the state salary supplement to pay for the
employer’s share of employment taxes on the supplement would be to shift the burden ofthose taxes
from the employer to the employee. Given the presumption in state and federal law that a public
employer will pay the employer’s share of employment taxes, we believe an express legislative
statement is necessary to shift responsibility for the employer’s share of the employment taxes on
a state salary supplement from the employer to the employee. Section 46.003 1 contains no such
express statement. Therefore, we conclude that the legislature did not intend the state funds provided
for the county attorney salary supplement to be used to pay the employer’s share of employment
taxes on the salary supplement and that other funds must be used to pay those taxes.

         Furthermore, we note that the legislative history supports the conclusion that the legislature
did not intend for the state-provided funds to be used to pay for the county’s share of employment
taxes on the salary supplement. As you point out, the House Committee on Judicial Affairs amended
the introduced version of House Bill 804 to insert the term “salary” in the phrase “state supplemental
compensation”     to create the phrase “state supplemental snlnry compensation”           in the house
committee report. Compare Tex. H.B. 804,76th Leg., R.S. (1999) (as Introduced, Jan. 20, 1999),
with Tex. H.B. 804,76th Leg., R.S. (1999) (House Committee Report, Apr. 20, 1999). We agree
that this amendment is significant. The terms “salary” and “compensation” have different meanings
in certain contexts. As a general rule, “compensation” is a more comprehensive term than “salary,”
see Tex. Att’y Gen. Op. Nos. DM-337 (1995); M-408 (1969), and includes both salary and
nonmonetary benefits, such as an employer’s contributions toward insurance, retirement, or social
 security coverage, see id.; see also Byrd v. City ofDallas, 6 S.W.2d 738,740 (Tex. 1928) (describing
participation in pension plan as part of city employee’s compensation).      Salary, on the other hand,
 is a subset of compensation and generally does not include such nonmonetary benefits. See Tex.
 Att’y Gen. Op. Nos. DM-337 (1995); M-408 (1969); see also Wichita County v. Robinson, 276
 S.W.2d 509,513.14 (Tex. 1954) (defining “salary” as a fixed compensation for regular work).

         Given the special, more limited meaning of the term “salary,” we believe that the
legislature’s insertion ofthis term into House Bill 804 indicates that the legislature intended that the
state-provided funds be used for salary and not for non-monetary benefits such as the county’s share
of employment taxes. The legislative testimony and debates do not indicate a contrary intent. See
Hearings on Tex. H.B. 804 Before the House Comm. on Judicial Affairs, 76th Leg., R.S. (Apr. 12;
 1999); Debate on Tex. H.B. 804 on the Floor of the House, 76th Leg., R.S. (May 7,1999); Debate
The Honorable Michael G. Mask - Page 5           (X-0227)




on Tex. H.B. 804 on the Floor of the House, 76th Leg., R.S. (May 8, 1999); Hearings on Tex. H.B.
804 Before the Senate Comm. on Finance, 76th Leg., R.S. (May 12,1999); Debateon TEL H.B. 804
on the Floor ofthe Senate, 76th Leg., R.S. (May 21,1999). Furthermore, the fiscal notes on House
Bill 804 prepared by the Legislative Budget Board do not address the issue of employment taxes.
Although two early fiscal notes stated that the bill would have “[n]o fiscal implication to units of
local governrtrent,“F~s~~~N~~~,     Tex. H.B. 804,76th Leg., R.S. (Apr. 8,1999); FISCALNOTE, Tex.
H.B. 804, 76th Leg., R.S. (Apr. 14, 1999), the third and final fiscal note stated that the bill would
have “[n]o significant fiscal implication to units oflocal govemment,“Frs~~~    NOTE, Tex. H.B. 804,
76th Leg., R.S. (May 11, 1999) (emphasis added), thus indicating that the bill might have some
minor fiscal implication for counties.

         In sum, section 46.0031 of the Government Code does not permit a county to pay the
employer’s share of employment taxes on the state supplement for a county attorney from the state-
provided funds. Furthermore, we note that a county may not “reduce the county funds provided for
the salary or office of the [county attorney] as a result of the funds” provided by chapter 46 for the
state supplement. TEX. GOV’TCODEANN. 5 46.006(b) (Vernon Supp. 2000). A county’s provision
for paying the employer’s share of employment taxes on the state supplement must be consistent
with this limitation.

         You also ask whether it is within the constitutional authority of the legislature “to grant
salary supplements to county elected or appointed officials or county employees that would
increase the count[y’s] payroll matching cost ofbenetits and other payroll expenses.” Request Letter
at I. Article V, section 21 of the Texas Constitution expressly provides that “[t]he Legislature may
. . . make provision for the compensation of.      County Attorneys.” TEX. CONST. art. V, 5 21. This
provision authorizes the legislature to provide a state salary supplement for county attorneys and to
require counties to pay the employer’s share of employment taxes on the supplement. A legislative
act that has the effect of requiring a county to pay the county’s share of employment taxes on a state
salary supplement with county funds does not offend the constitution.
The Honorable   Michael G. Mask - Page 6        (JC-0227)




                                       SUMMARY

                         Section 46.003 1 of the Government Code’does not permit a
                county to pay the employer’s share of employment taxes on state
                “supplemental salary compensation” for a county attorney from the
                state-provided funds. The legislature is authorized under the Texas
                Constitution    to require a county to pay the county’s share of
                employment taxes on the state salary supplement from county funds.
                See TEX. CONST. art. V, 5 21 (“The Legislature may            make
                provision for the compensation of.      County Attorneys.“).




                                              Attorney General of Texas



ANDY TAYLOR
First Assistant Attorney General

CLARK RENT ERVIN
Deputy Attorney General - General Counsel

ELIZABETH ROBINSON
Chair, Opinion Committee

Mary R. Crouter
Assistant Attorney General - Opinion Committee
