                             February 1, 1990




     Honorable Daniel W. Leedy       Opinion No. JM-1138
     Austin County Attorney
     One East Main                   Re:    Authority of a commis-
     Bellville, Texas 77418-1551     sioners court to increase the
                                     salary of a county court-at-
                                     law judge after adoption   of
                                     the budget    (RQ-1803)

     Dear Mr. Leedy:

          You ask whether the Austin County Commissioners        court
     has the authority to increase the salary of a county       court-
     at-law judge after the adoption of a budget.

          Subsection (e) of section 25.0102 of the Government
r‘   Code sets the annual salary for the county court-at-law
     judge in Austin County in an amount "that is at least equal
     to 75 percent of the annual salary paid by the state to a
     district judge in the county."

          pursuant to House Bill 101 of the 71st Legislature,
     effective September  1, 1989, the judges of the district
     courts of this state shall be paid an annual salary that is
     five percent less than the salary for a justice of a court
     of appeals. Acts 1989, 71st Leg., ch. 1258, § 1, at 5074.
     you advise that House Bill 101 will result    in a raise for
     the district judge in Austin County.    Since  the salary of
     the county court-at-law   judge is tied to that of the
     district judge you ask whether the raise for the county
     court-at-law judge is automatic or must it await the action
     of the commissioners court at its annual budget hearing.
     Section 152.013 of the Local Government       Code  (formerly
     article 3912k, V.T.C.S.), provides in pertinent part:

                (a) Each year the commissioners         court
             shall set the salary,    expenses,    and  other
             allowances  of   elected  county   or   precinct
             officers.  The commissioners court shall set
             the items at a regular meeting of the court
             during the regular budget hearing and adop-
             tion proceedings.




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     you state that your concern   is prompted  by the con-
clusion in Attorney General Opinion JW-326 (1985) that the
salary for a county attorney, an elected official, may only
be considered and adopted at the annual budget hearing   and
adoption proceedings  under then article 3912k    (now Local
Government Code section 152.013).

      Subsection (1) of section 152.017 of the Local Govern-
ment Code excepts   a judge of a court of record from the
requirements of section 152.011 St sea,. relating     to the
compensation for county and precinct officers.    The county
court-at-law judge in Austin County is the judge of a court
of record.    &g   Attorney General Opinion W-1095    (1972).
Therefore, section 152.013 of the Local Government Code is
inapplicable to a county court-at-law judge. See Attorney
General Opinion M-921 (1971); cr‘. Attorney General   Opinion
m-110    (i979).1   Since the county court-at-law     judge's
salary is tied to that of the district judge in the county,
the effective date for the salary increase is September    1,
1989. The increase    in salary for the county court-at-law
judge is by mandate of the legislature and is not a matter
addressed to the discretion of the commissioners court.

     Even though the matter of the salary increase is not       ?
within the province of the commissioners court, the question
remains whether the commissioners court may authorize    the
expenditure for same after the adoption of the budget    for
the year that included a lesser amount for the salary of
that office.

     Section 111.010 of the Local Government Code  (formerly
article 689a-11, V.T.C.S.),  applicable to counties with a
population of 225,000 or less, provided prior to amendment
by the 71st Legislature, which will be considered later in
the opinion,  that the commissioners court may only spend
county funds in strict compliance with the budget, except in



     1. Subsection (2) of section 152.017 of the Local
Government Code excepts a presiding judge of a commissioners
court in a county with a population of 1.7 million       from
the requirements of section 152.011 et sea. of the Local
Government Code relating to compensation    for county    and
precinct officers.  Attorney  General Opinion WW-110,   while
recognizing that a county judge is the presiding judge of a
court of record, concluded   that the requirements of then
article 3912k (now Local Government   Code section   152.013)
apply to all county judges who preside over commissioners
                                                                -.
courts except those in counties having a population        of
1,700,OOO or more.




                              p. 5998
    Honorable Daniel W. Leedy - Page 3 (JM-1138)




    an emergency.  The matter  of what constitutes an emergency
    that will justify the amendment  of the budget has been the
    source of confusion and numerous questions to this office.
    &.8 Attorney General  Opinion JW-784 (1987); 35 D. Brooks,
    County and Special District Law, § 15.11     (Texas Practice
    1989).

         Attorney General Opinion JM-784 reviewed    conflicting
    opinions relative to whether   re-allocation among budgeted
    items already adopted  is distinguishable from an item not
    originally included in the budget in determining whether   it
    is necessary that an emergency exist before there may be an
    amendment to the budget.   It was concluded that in either
    instance there must be an emergency before there may be an
    amendment to the duly adopted budget.

         In Attorney General Opinion JM-733 (1987), an unforsee-
    able emergency caused the need for overtime work by a county
    employee.  The question addressed was whether the budget may
    be amended  to pay overtime compensation mandated    by. the
    federal Fair Labor Standards Act of 1938. It was concluded
    that the failure to pay such additional         compensation
    constituted a potential  violation of federal law so as to
    warrant an emergency amendment.
P
         We need not consider whether the salary increase of the
    county court-at-law judge warrants an emergency amendment in
    light of House Bill 1077 of the 71st Legislature,   effective
    upon passage on Way 25, 1989. Acts 1989, 71st Deg., ch.
    167, at 549. House Bill 1077 amended Local Government    Code
    section 111.010 by adding subsection (d) providing:

                (d) The commissioners court by order may
            amend the budget to transfer      an   amount
            budgeted for one item to another budgeted
            item without authorizing an emergency  expen-
            diture.

         The following comments  in the Bill Analysis to House
    Bill 1077 reflect the legislature's desire to resolve the
    problem requiring that an emergency exist before there may
    be a transfer among budgeted items.

               Current law provides    that in order to
            transfer funds from one line item to another,
            counties with fewer than 225,000 people must
            pass an order declaring     an emergency   and
            grave public necessity    due to unusual   and
            unforeseen circumstances.    This requirement
            is unduly restrictive   and cumbersome.   Fre-
            quently , counties need to transfer      funds




                                  P. 5999
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Honorable Daniel W. Leedy - Page 4 (JM-1138)

                                                                 ?




        without compromising the court's integrity by
        calling the situations an 'emergency.'

           H.B. 1077 would allow counties 225,000 or
        less population    to amend the budget      to
        transfer funds from one line item to another
        without authorizing an emergency expenditure.

     The current salary of the county court-at-law judge  is
a budgeted item. House Bill 1077 (subsection (d) of section
111.010) grants the commissioners court authority to trans-
fer money from an amount budgeted for one item to another
budgeted item without a finding that an emergency exists.

      If there are not sufficient funds in any other budgeted
item to enable the required transfer, we are of the opinion
that the county court-at-law judge's claim for additional
salary (effective September    1, 1989) resulting    from the
action of the 71st Legislature     may be included    in next
year's budget and paid following the adoption of the budget.
See 35 D.   Brooks, County and Special District  Law,   5 15.8
 (Texas Practice 1989).

                       SUMMARY

           The salary increase for the judge of the
        county court-at-law  of Austin  County is by
        mandate of the legislature resulting from a
        raise in salary of the district judge in that
        county and is effective   September 1, 1989.
        The commissioners court may amend the budget
        to transfer an amount from another budgeted
        item to effect the claim for such additional
        salary.  In the event sufficient funds are
        not available   in the budget to effect     a
        transfer to satisfy the claim, the amount may
        be included in next year's budget and paid
        after adoption of the budget.




                                 JIM     MATTOX
                                 Attorney General of Texas

MARY KELLER
First Assistant Attorney General

JUDGE ZOLLIE STEAKLEY
Special Assistant Attorney General




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     Honorable Daniel W. Leedy - Page 5 (JM-1138)


,-

     RICK GILPIN
     Chairman, Opinion Committee

     Prepared by Tom G. Davis
     Assistant Attorney General




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