                             ATTORNEY GENERAL OF TEXAS
                                          GREG       ABBOTT




                                              March 282003



The Honorable Dib Waldrip                              Opinion No. GA-005 1
Coma1 County Criminal District Attorney
150 North Seguin, Suite 307                            Re: Whether Attorney General Opinion JC-047 1
New Braunfels, Texas 78130                             (2002) correctly construes section 152.013(c) of
                                                       the Local Government Code (RQ-06 15-JC)


Dear Mr. Waldrip:

         You ask whether Attorney General Opinion JC-047 1, which states that a commissioners court
must notify an elected officer of the proposed salary and personal expenses budgeted for the officer
“[alfter the commissioners court has adopted the budget, ‘but before filing it with the county clerk,“’
is correct.’ See Tex. Att’y Gen. Op. No. JC-0471 (2002) at 2 (quoting Tex. Att’y Gen. Op. No.
DM-0405 (1996) at 4).

         You suggest that this statement in Opinion JC-0471 creates an impossible situation for the
officers: “If notice to elected officials is given only after the budget is approved and adopted as
contemplated . . . , it is impossible for an aggrieved elected official to request a hearing before the
approval of the county’s annual budget.” Request Letter, supra note 1, at 2. You accordingly ask
us to clarify Attorney General Opinion JC-047 1 to the extent it construes the phrase “[blefore filing
the annual budget” in section 152.013(c) to mean an “approved and adopted budget.” TEX. LOC.
GOV’T CODEANN. 5 152.013(c) (Vernon 1999); Request Letter, supra note 1, at 1.


         Chapter 111, subchapter A of the Local Government Code governs budget preparation in a
county with a population of 225,000 or less, such as Coma1 County. See TEX. LOC. GOV’T CODE
ANN. 5 111 .OOl (Vernon 1999) (providing that subchapter A applies to county with population of
225,000 or less if county has not adopted subchapter C); see also Bureau of the Census, U.S. Dep’t
of Commerce, 2000 Census of Population, General Population, Characteristics: Texas, Coma1
County (available at http://www.quickfacts.census.gov/qf~states/48/48091     .html) (Coma1 County
population: 78,021). Under subchapter A, a county judge must “prepare a budget to cover all
proposed expenditures of the county government for the succeeding fiscal year.” See TEX..LOC.
GOV’T CODE ANN. 9 111.003 (Vernon 1999). The judge must file the completed budget with the
county clerk, after which time the commissioners court may review the county judge’s proposed



        ‘Letter from Honorable Dib Waldrip, Coma1 County Criminal District Attorney, to Honorable John Cornyn,
Texas Attorney General, at 1 (Oct. 2, 2002) (on file with Opinion Committee) [hereinafter Request
                                                                                                Letter].
The Honorable Dib Waldrip      - Page 2        (GA-005 1)




budget. See id. § 111.006(a). After a set period of time, the commissioners court as a whole must
“hold a public hearing” on the proposed budget, and “[a]t the conclusion of the public hearing, the
commissioners court” must act on the proposed budget. Id. 09 111.007(a)-(b), 111.008(a). When
the commissioners court has finally approved the budget, it files the budget with the county clerk.
See id. 5 111.009. The commissioners court “may levy taxes only in accordance with the budget”
and, except in an emergency, “may spend county funds only in strict compliance with the budget.”
Id. § 111.010(a)-(b).

         Another chapter of the Local Government Code, chapter 152, provides a procedure by which
a commissioners court sets the amount of compensation, expenses, and allowances received by
elected county and precinct officers. Subchapter B pertains to budgeting salaries, expenses, and
other allowances for most elected officers. See generally id. ch. 152, subch. B (Vernon 1999). But
see id. subch. C (Vernon 1999 & Supp. 2003) (“Amount of Compensation and Expenses of County
Auditor and Assistants”); id. subch. E (Vernon 1999) (“Special Provisions Applying to Sheriffs
Department”).    Section 152.013 requires a commissioners court to set elected officers’ salaries,
expenses, and other allowances “at a regular meeting of the court during the regular budget hearing
and adoption proceedings.”      Id. $ 152.013(a) (V emon 1999). Section 152.013(c) requires the
commissioners court to notify the elected officers of the proposed salaries and personal expenses:
“Before filing the annual budget with the county clerk, the commissioners court shall give written
notice to each elected county and precinct officer of the officer’s salary and personal expenses to be
included in the budget.” Id. fj 152.013(c).

         The written notice provided to the elected officers marks the beginning of the grievance
process, through which an officer may request the county’s salary grievance committee to reconsider
that officer’s proposed salary or personal expenses. In particular, section 152.016(a) permits an
officer who objects to the proposed salary or expenses to ask the salary grievance committee to
consider the grievance: “An elected county or precinct officer who is aggrieved by the setting of the
officer’s salary or personal expenses may request a hearing before the salary grievance committee
before the approval of the county’s annual budget.” Id. 8 152.016(a). The salary grievance
committee then must hold a public hearing on the grievance within ten days “after the date the
request is received.” Id. 9 152.016(b). If the committee votes to recommend an increase in the
officer’s salary or personal expenses, the committee submits a written recommendation           to the
commissioners court. See id. 5 152.016(c). Depending upon the number of votes in favor of the
recommendation,     the commissioners court either must consider the recommendation        at its next
meeting or must “include the increase in the budget before the budget is filed and the increasetakes
effect in the next budget year.” Id.

         As background to the specific issue considered by Attorney General Opinion JC-0471
-whether    notice by fax satisfies the “written notice” requirement of section 152.013(+---the
opinion discusses a commissioners court’s statutory duty to notify elected officers of their proposed
salaries generally. See Tex. Att’y Gen. Op. No. JC-0471 (2002) at 2. According to the opinion, a
court must notify the officers after it has adopted the budget:
The Honorable Dib Waldrip      - Page 3        (GA-005 1)




               After the commissioners court has adopted the budget, “but before filing it .
       with the county clerk,” see Tex. Att’y Gen. Op. No. DM-405 (1996) at 4, section
       152.013 requires the commissioners court to notify each officer of the proposed
       salary and personal expenses budgeted for the officer: “Before filing the annual
       budget with the county clerk, the commissioners court shall give written notice to
       each elected county and precinct officer of the officer’s salary and personal expenses
       to be included in the budget.” TEX. Lot. GOV’T CODEANN. 5 152.013(c) (Vernon
       1999).

Tex. Att’y Gen. Op. No. JC-0471 (2002) at 2.

        For three reasons, Attorney General Opinion JC-0471 is incorrect to the extent it construes
section 152.013(c) to require a commissioners court to notify elected officers of the “salary
and personal expenses to be included in the budget” only after the court has adopted the budget.
TEX. Lot. GOV’T CODEANN. 8 152.013(c) (Vernon 1999); see Tex. Att’y Gen. Op. No. JC-0471
(2002) at 2.

          First, as you point out, once a commissioners court has adopted the budget, an aggrieved
officer may not request a hearing “before the approval of the county’s annual budget,” as section
152.016(a)requires.     TEX.LOC. GOV’TCODEANN. 8 152.016(a) (Vernon 1999);seeRequest            Letter,
supra note 1, at 2. Further, section 152.016(c) requires the commissioners court to include any
increase that results from the salary grievance process “in the budget before the budget is filed,” so
that the increase “takes effect in the next budget year.” TEX. Lot. GOV’T CODEANN. 8 152.016(c)
(Vernon 1999); see also id. 5 111 .Ol O(b) (p ermitting county to spend county funds only in strict
compliance with budget). The legislature intends the whole of chapter 152, subchapter A to be
effective. See TEX. GOV’T CODEANN. 5 3 11.02 l(2) (Vernon 1998). But the construction of section
152.013(c) adopted by Attorney General Opinion JC-0471 renders impossible the requirements of
section 152.016(c) that the salary grievance committee determine the issue before the annual budget
is finally approved. See TEX. LOC. GOV’T CODEANN. 9 152.016(a), (c) (Vernon 1999).

         Second, once the commissioners court has adopted its budget, it may expend county funds
only in strict compliance with the budget, except in an emergency. See id. 8 111.010(b). Thus,
unless the court were to determine in good faith that a recommended or required salary or expense
increase, received after the budget was finally approved, presents an emergency, the increase could
not take effect in the next year’s budget, as section 152.016(c) requires. See id. fj 152.016(c).
Whether an emergency exists is generally a question of fact that cannot be determined by this office.
See Tex. Att’y Gen. Op. No. GA-0003 (2002) at 1. Specifically in the county budget context, this
office has stated that an emergency expenditure can be made only “to meet unusual and unforeseen
conditions which could not, by reasonable diligent thought and attention, have been included
in the original budget.” Tex. Att’y Gen. Op. No. O-5 184 (1943) at 6; see Goolsbee v. Tex. & New
Orleans R.R. Co., 243 S.W.2d 386,388 (Tex. 1951) (defining emergency generally as “a condition
arising suddenly and unexpectedly . . . which calls for immediate action”); accord Bankler v. Vale,
75 S.W.3d 29,37 (Tex. App.-San Antonio 2001, no pet.) (quoting Goolsbee ‘s characterization of
term “emergency’).
The Honorable   Dib Waldrip   - Page 4        (GA-005 1)




         Finally, Attorney General Opinion JC-047 1 ‘s narrow construction of the phrase “[b] efore
filing the annual budget with the county clerk” is not logical. TEX. LOC. GOV’T CODE ANN. fj
152.013(c) (Vernon 1999). JC-047 1, relying on Attorney General Opinion DM-405, interpreted the
phrase to mean after the budget has been approved but before the court has filed the adopted budget
with the county clerk. Tex. Att’y Gen. Op. No. JC-0471 (2002) at 2 (citing Tex. Att’y Gen. Op. No.
DM-405 (1996) at 4). But, in fact, the phrase should be read to mean “at any time between the time
the commissioners court receives the proposed budget from the county judge and the time it finally
approves the budget.” Under this broader and more logical construction, section 152.013(c) requires
the commissioners court to notify elected officers of proposed salaries and expenses at a time, after
the court has received the proposed budget, that will allow any aggrieved officer the opportunity to
have a grievance adjudicated by the salary grievance committee before the court finally adopts the
budget.

        We conclude that the commissioners court must notify elected officers of proposed salaries
and expenses after having received the proposed budget from the county judge, but sufficiently
before the court’s approval so that an aggrieved officer can receive a determination from the salary
grievance committee.

        Consequently, we modify Attorney General Opinion JC-0471 to the extent it suggests that
a commissioners court may notify elected officers under section 152.013 only after having adopted
the budget. See Tex. Att’y Gen. Op. No. JC-0471 (2002) at 2. This modification does not affect the
opinion’s ultimate conclusion that section 152.013 “does not as a matter of law preclude a
commissioners court from faxing its written notice to an elected officer.” Id. at 4.

         We similarly modify Attorney General Opinion DM-405, cited in Attorney General Opinion
JC-0471, to the extent it construed section 152.013 to require the commissioners court to notify
elected officers of their salaries and personal expenses “after the commissioners court has adopted
the budget, but before filing it with the county clerk.” Tex. Att’y Gen. Op. No. DM-405 (1996) at
4; see Tex. Att’y Gen. Op. No. JC-0471 (2002) at 2. Section 152.016(a) did not, at the time Opinion
DM-405 was issued, require an aggrieved officer to request a hearing “before the approval of the
county’s annual budget.” TEX. Lot. GOV’T CODE ANN. 9 152.016(a) (Vernon 1999) prior to
amendment by Act ofMay 12,1997,75thLeg.,         R.S., ch. 326,§ 3,1997 Tex. Gen. Laws 1415’1415.
Section 152.016(c) did, however, require the commissioners to include an increase recommended
by the salary grievance committee “in the budget before the budget was filed.” Id. 9 152.016(c).
Thus, Attorney General Opinion DM-405’s statement regarding the timing of the notice was
incorrect.
The Honorable Dib Waldrip     - Page 5       (GA-005 1)




                                      SUMMARY

                        Under section 152.013(c) of the Local Government Code, a
               commissioners court must notify elected county and precinct officers
               of proposed salaries and expenses after the court has received a
               proposed budget from the county judge, but sufficiently before the
               court’s approval of the budget to permit an aggrieved officer to
               request a hearing before the salary grievance committee and to
               permit the salary grievance committee to determine the grievance
               consistently with section 152.016. See TEX. LOC.GOV’T CODEANN.
               $6 152.013(c), 152.016 (Vernon 1999). To the extent Attorney
               General Opinion JC-0471 suggests that a commissioners court may
               notify officers under section 152.013 only after having adopted
               the budget, the opinion is modified. See Tex. Att’y Gen. Op. No.
               JC-0471 (2002) at 2. To the same extent, Attorney General Opinion
               DM-405 is modified. See Tex. Att’y Gen. Op. No. DM-405 (1996)
               at 4.

                                             Very truly yours,




                                                          eneral of Texas


BARRY R. MCBEE
First Assistant Attorney General

DON R. WILLETT
Deputy Attorney General - General Counsel

NANCY S. FULLER
Chair, Opinion Committee

Kymberly K. Oltrogge
Assistant Attorney General, Opinion Committee
