              THE    ATTORNEY        GENERAL
                        OF   TEXAS




                         November 9, 1989



Honorable Bill Turner            Opinion No. JM-1113
District Attorney
300 E. 26th Street, Suite 310    Re:   Whether  a county may
Brazos County Courthouse         make a pay raise retroactive
Bryan, Texas 77803               to time when funds were bud-
                                 geted for pay raises.(RQ-1722)

Dear Mr. Turner:

     You ask the following question:

           Are    Brazes   County    department    heads
        prohibited by Article    3, Section 53 of the
        Texas Constitution   from distributing     merit
        pay raises to county employees    retroactively
        from January 1, 1989 to the present, wkiere
        such merit pay raises were authorized         by
        order of the Brazos County Commissioners'
        Court on September 29, 1988 for inclusion     in
        the 1989 budget, but were not           actually
        distributed previously    due to reliance by
        such department     heads on     an   erroneous
        directive    from    one    of    the     County
        Commissioners?

     You explain that in September 1988 the Brazos County
Commissioners Court approved a budget that included a merit
pay increase program under which a set number of county
employees  would receive    a merit    pay increase.      The
commissioners   court voted to use the previous        year's
guidelines for granting merit raises. In December 1988 the
county judge, acting on his own, distributed a memorandum
stating that department heads would receive guidelines    for
distributing   merit pay raises    in January   1989.     The
department   heads   waited  several   months   to    receive
guidelines, during which time they did not seek approval   of
merit pay increases    for any individual.    Eventually   it
became clear that the commissioners court had not issued
guidelines because the guidelines  had not changed from the
previous year. Merit pay increases    for certain  employees
were then approved from May 1, 1989, forward. See aenerallv




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Honorable Bill Turner - Page 2   (JM-1113)




Local Gov't Code 8 152.011 (commissioners court is to Set
compensation for employees paid wholly from county   funds):
Attorney General Opinion H-11 (1973)(concluding that salary
for county employees -- but not county officers -- may be
set at any time of year). YOU ask whether         those pay
increases may be made retroactive to the beginning of the
budget year.

     Article III, section 53, of the Texas Constitution
prohibits a county   from granting  extra compensation to
county employees after their services have been rendered.
Fausett v. Kinq, 470 S.W.Zd 770, 774 (Tex. Civ. App. - El
Paso 1971, no writ). We think that prohibition applies in
the circumstances you describe.

     We understand from your brief that the commissioners
did not approve raises for individual employees when they
adopted the budget; they merely budgeted     funds to be used
for merit    increases   for a certain number of as        yet
unidentified employees.    YOU suggest that Taxnavers'   Ass'n
v. Houston IndeD. School Dist., 81 S.W.Zd 815 (Tex. Civ.
APP. -     Galveston   1935,   writ dism'd),    supports   the
proposition that the Brazes County merit raises may be made
retroactive.   In that case the court considered whether     a
school district could restore    in part cuts it had made   in
teachers' salaries for previous years.     In concluding  that
such restoration was permissible under article III, section
53, the court wrote:

           The partial    restoration . . . did    not
        constitute an increase in such original    and
        prevailing   salaries: hence    were not     *
        violation   of [article III, section      35;;
        because   such originally   prevailing  salary
        schedules and the contracts from which they
        proceeded   had never been abrogated,      but
        instead, due to the financial stringency that
        caused them, had merely been temporarily
        suspended as an emergency measure, upon the
        distinct and mutual understanding between all
        parties that such was the case and that they
        would be so restored if and when the cause of
        making them had been removed . . . .

Id. at 819.

     We do not think the holding in the Bouston  Indenendent
School District  case is applicable in this instance.     In
that case salaries had been approved and were later cut. In




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Honorable Bill Turner - Page 3     (JM-1113)




this situation no merit raise for any individual     employee
was ever approved for the period before May 1, 1989.

     Several prior opinions of this office support the
conclusion  that    article   III, section     53,    prohibits
retroactive raises in the circumstances     you describe.      In
Attorney General Opinion o-5104     (1943), this office held
that the fact that a commissioners court could have allowed
additional amounts of compensation    in past years would not
allow the court to pay such amounts retroactively.      Several
years later, this office held that where a commissioners
court was authorized to increase an officer's      compensation
by $750 per year, it could only grant an increase in the
current year in proportion to the number of months remaining
in the year.      Attorney  General opinion O-6736       (1946).
Similarly, we think that the fact that the commissioners
court budgeted   funds for merit raises does not give the
court authority to make individual raises retroactive to the
date on which   funds were available   for merit raises.     See
                                                             -      :
aenerally Attorney General Opinion MW-68 (1979)(stating that
school board could adopt policy of granting salary increases
in future years, but policy would not bind board to actually
make such increases).



                         SUMMARY

             Article III, section 53, of the Texas
        Constitution prohibits a county from making
        salary    increases  for  county   employees
        retroactive.




                                    JIM     MATTOX
                                    Attorney General of Texas

MARY KELLER
First Assistant Attorney General

LOU MCCREARY
Executive Assistant Attorney General

JUDGE ZOLLIE STEAKLEY
Special Assistant Attorney General




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Honorable Bill Turner - Page 4   (JM-1113)




RICK GILPIN
Chairman, opinion Committee

Prepared by Sarah Woelk
Assistant Attorney General




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