    OFFICE OF THE ATTORNEY GENERAL - STATE OF TEXAS

    JOHN    CORNYN




                                                April 3,200l



The Honorable Jack Skeen, Jr.                                  Opinion No. JC-0361
Smith County Criminal District Attorney
Smith County Courthouse                                        Re: Authority of the district judges of
100 North Broadway, 400                                        Smith County to amend the salaries of the
Tyler, Texas 75702                                             county   auditor’s office,  and related
                                                               questions (RQ-0302-JC)

Dear Mr. Skeen:

         You have asked this office a series of questions concerning the amendment of the salaries
of the Smith County auditor’s office by the district judges of Smith County. In accordance with
prior opinions of this office, we conclude that, provided the appropriate public hearing is held, the
necessary statutory procedures are followed, and the amendment “does not require county
expenditures in excess of anticipated revenue” for the budget year, Tex. Att’y Gen. Op. No. JM-49
(1983) at 2, the district judges of Smith County may amend such salaries despite the fact that the
county budget has been approved and filed, and the new budget year has begun. Such salary
increases, of course, must be prospective so as not to run afoul of article III, section 53 of the Texas
Constitution, and are therefore effective only upon the adoption by the commissioners court of the
necessary budget amendments. See Tex. Att’y Gen. Qp. No. JC-0147 (1999) at 3.

          Pursuant to chapter 84 of the Local Government Code, “the district judges [having
jurisdiction in a county]. . . appoint a county auditor.” TEX. Lot. GOV'TCODEANN. fj84.002
 (Vernon 1999). The judges make that appointment “at a special meeting held for that purpose.” Id.
 8 84.003(a). This having been done, the “clerk of the district court shall record the judges’ action
 in the minutes of the court and certify it to the commissioners court. The commissioners court shall
record in its minutes the judges’ action and an order directing the payment of the auditor’s salary.”
Id. 8 84.003(b).


        Similar provision is made by section          84.021 of the Local Government       Code for the
appointment of assistant county auditors:

                         From time to time the county auditor may certify to the
                district judges a list stating the number of assistants to be appointed,
                the name, duties, qualifications, and experience of each appointee,
                and the salary to be paid each appointee. The district judges, after
                careful consideration of the application for the appointment of the
The Honorable       Jack Skeen, Jr. - Page 2           (JC-0361)




                    assistants and after inquiry concerning the appointees’ qualifications,
                    the positions sought to be filled, and the reasonableness of the
                    requested salaries, shall prepare a list of the appointees that the judges
                    approve and the salary to be paid each. The judges shall certify this
                    list to the commissioners court, which shall order the salaries to be
                    paid on the performance of services and shall appropriate an adequate
                    amount of money for this purpose.

Id. tj 84.021(a).

         Procedures for setting the compensation of the auditor and assistant auditors are set forth in
 chapter 152 of the Local Government Code. Before setting such compensation, the judges must hold
 “a public hearing on the matter at which parties in interest and citizens have an opportunity to be
heard.” Id. 8 152.905(b). Notice of the time, place, and subject of this hearing “must be published
in a newspaper of general circulation in the county” at least fifteen days beforehand.              Id.
 9 152.905(c). The amount of compensation to be paid must be voted on by the judges at this
meeting, and the vote “must be recorded, transcribed, and maintained as a public record.” Id.
 8 152.905(d). With respect to the salary and expenses of the auditor, “[tlhe action of the district
judges must be taken by order and must be recorded. . . in the minutes of the district court.” Id.
 0 152.03 l(a). The district clerk thereupon certifies the order to the commissioners court, which
“shall cause the order to be recorded in its minutes.” Id. tj 152.03 l(b).

         You have inquired as to whether the district judges may amend the salaries of the auditor and
the assistant auditors after the county budget has been approved, and the new budget year has
begun. Prior opinions of this office answer your question in the affirmative. Attorney General
Opinion H- 1266 (1978) provided that “the salary of the county auditor of Henderson County may
be increased prior to the beginning of the next fiscal year” so long as the increased salary did not
exceed that of the county tax assessor-collector.       Tex. Att’y Gen. Op. No. H-1266 (1978) at 2.
Similarly, in Attorney General Opinion JIM-49 (1983), this office concluded that “the
district judge[s] may, during the course of the budget year, direct a change in the county budget
which increases the salaries of the assistants in the county auditor’s office.” Tex. Att’y Gen. Op. No.
JM-49 (1983) at 2.

        Attorney General Opinion JIM-49 further sets three conditions on the proposed change: that
it be made “( 1) upon a proper application made by the auditor to the district court; (2) only if such
action does not require county expenditures in excess of anticipated revenue of the county for that
year; and (3) only if amendment of the county budget is made in compliance with law.” Id.
Provided that these conditions are met, we believe that the district judges may increase the salaries
of the auditor and the assistant auditors during the course of the county’s budget year.

         You further ask whether the auditor is required to certify such amended salaries and make
application to the judges before such salary increases may be made. We agree with you that,
pursuant to the plain language of section 84.021 which we have cited above, these conditions must
The Honorable Jack Skeen, Jr. - Page 3            (JC-036   1)




be met. We further agree that the judges not only may, but must, post notice of and hold a public
hearing pursuant to section 152.905 of the Local Government Code before increasing such salaries.
Indeed, this office so construed section 152.905 in Attorney General Letter Opinion 98-03 1. That
opinion concludes that while a public hearing is not required for the appointment of a particular
individual as an assistant county auditor, “the district judges must . . . hold and make any changes
to the annual salary at a public hearing.” Tex. Att’y Gen. LO-98-03 1, at 3.

        Finally you ask whether the commissioners court may amend the county budget so as to pay
these salary increases. We conclude not only that the commissioners court may do so, but that
pursuant to sections 84.02 1 and 152.03 1 of the Local Government Code, the commissioners court
is under a ministerial duty to do so.

         While the salaries of elected county officials may be set only in the regular annual budget
hearing, those “of employees and non-elected county officers” such as the auditor and assistant
auditors “may be changed by a budget amendment at any time.” Tex. Att’y Gen. Op. No. JC-0147
(1999) at 1. In this instance, provided that the auditor has properly applied to the district judges and
the district judges have held the appropriate hearing and otherwise followed the procedures in
chapter 152, the commissioners court cannot refuse to pay the salary increase. See Duncan v. Pogue,
759 S.W.2d 435 (Tex. 1988); Mays v. Fifth Court ofAppeals, 755 S.W.2d 78 (Tex. 1988).

         In both Mays and Duncan, commissioners courts refused to pay salaries set by the district
courts for court reporters pursuant to section 52.05 1 of the Government Code. The Texas Supreme
Court held that the commissioners court had no discretion to make such a refusal. “[T]he pay
increase. . . was a ministerial act to be performed by the Commissioners Court and an act in which
the Legislature left no discretion.” Mays, 755 S.W.2d at 79. In Duncan, the court wrote that an
order of such a pay increase, so long as it was within the statutory limits, “was presumptively valid.”
Duncan, 759 S.W.2d at 435; see also Tex. Att’y Gen. Op. No. DM-74 (1992) (following Duncan
and Mays). The statutory scheme at issue here, as set out in extenso above, parallels that in Mays
and Duncan. The power to make the appointments and set the salaries here, as in those cases, is
given solely to the district judges. Accordingly, following the rationale of those cases, we conclude
that the commissioners court is under a ministerial duty to pay such salary increases.

         We note that, under article III, section 53 of the Texas Constitution, a county may not grant
“any extra compensation, fee or allowance to a public officer, agent, servant or contractor, after
service has been rendered.” TEX. CONST. art. III, 5 53. Accordingly, any salary increases must be
prospective,    and are not effective until the commissioners         approve the necessary budget
amendments. See Tex. Att’y Gen. Op. No. JC-0 147 (1999) at 3 (“The effect of this provision is that
a salary increase authorized by a commissioners court must operate prospectively from the time of
the authorization.“).
The Honorable   Jack Skeen, Jr. - Page 4          (JC-0361)




                                         SUMMARY

                          Provided the appropriate public hearing is held, the necessary
                statutory procedures are followed, and the salary amendments at issue
                do not “require county expenditures in excess of anticipated revenue”
                for the budget year, Tex. Att’y Gen. Op. No. M-49 (1983) at 2, the
                district judges of Smith County may amend the salaries of the auditor
                and assistant auditors of the county despite the fact that the new
                budget year has begun. Any salary increases must be prospective,
                and are effective only upon the adoption by the commissioners court
                of the necessary budget amendments.




                                                Attorney General of Texas



ANDY TAYLOR
First Assistant Attorney General

CLARIS KENT ERVIN
Deputy Attorney General - General Counsel

SUSAN D. GUSKY
Chair, Opinion Committee

James E. Tourtelott
Assistant Attorney General - Opinion Committee
