                               ATTORNEY GENERAL OF TEXAS
                                            GREG        ABBOTT




                                                  May 1,2008



Mr. Sidney "Buck" LaQuey                                  Opinion No. GA-0620
Grimes County Auditor
Post Office Box 510                                       Re: Procedures that a commissioners court must
Anderson, Texas 77830                                     follow in the annual budget process in regard to
                                                          salaries and personal expenses for each elected
                                                          county and precinct officer (RQ-0642-GA)

Dear Mr. LaQuey:

        You ask several questions about the procedure that a commissioners court must follow in
reducing the salaries ofelected county officials. 1 You tell us that the Grimes County Judge filed the
proposed budget for Grimes County in accordance with section 111.006 of the Local Government
Code on August 29, 2007. See Request Letter, supra note 1, at 1. On September 17, 2007, the
Grimes County Commissioners Court held a public hearing pursuant to section 111.007 ofthe Local
Government Code regarding the budget proposed by the County Judge. Id At the public hearing,
"a Commissioner proposed a salary reduction for each Commissioner of approximately $7,000,"
and the reduction was adopted. Id. at 2. You state that "there was no written or oral notice given
to any Commissioner prior to the meeting that the salary of each Commissioner would be reduced."
Id. On September 25, 2007, following an unknown number ofbudget hearings, the final budget was
"filed with the County Clerk" pursuant to section 111.009 of the Local Government Code. Id.; see
TEX. Lac. GOV'T CODE ANN. § 111.009 (Vernon 2008).

        You ask three questions regarding the annual county budget process:

                  1.    Is the Commissioners' Court required to notify all elected
                        officials including County Commissioners in writing prior to
                        the annual budget hearing of a proposed salary reduction from
                        that proposed in the budget filed by the County Judge?

                 2.     [M]ust the Commissioners' Court give written notice to all
                        elected officials including County Commissioners of their


        ILetter from Sidney "Buck" LaQuey, Grimes County Auditor, to Honorable Greg Abbott, Attorney General of
Texas (Oct. 22, 2007) (on file with the Opinion Committee, also available at http://www.oag.state.tx.us) [hereinafter
Request Letter].
Mr. Sidney "Buck" LaQuey - Page 2                    (GA-0620)




                       proposed salaries and expenses more than fifteen days before
                       adopting the budget thereby granting any potentially aggrieved
                       officer the maximum amount oftime permitted by law in which
                       to request a hearing and granting the salary grievance
                       committee the maximum amount of time permitted by law in
                       which to hold a hearing?

                3.     If the Commissioners' Court fails to give each elected officer
                       including each County Commissioner written notice of the
                       Commissioner's proposed salary and expenses prior to the
                       annual budget meeting after which the budget is adopted, may
                       the Court then, pay the officer the reduced amount?

Request Letter, supra note 1, at 1, 3, 4.

        Before answering your specific questions, we note that, in Attorney General Opinion
GA-0051 (2003), we thoroughly explained the county budgeting process. As a result, we will begin
by briefly summarizing that process, with references, as appropriate, to that opinion.

        In a county of225,000 or fewer, such as Grimes County,2 during either the seventh or tenth
month of a fiscal year, as determined by the commissioners court, the county judge is required to
"prepare a budget to cover all proposed expenditures of the county government for the succeeding
fiscal year." TEX. Loc. GOV'T CODE ANN. § 111.003(a) (Vernon 2008). "When the county judge
has completed the preparation of the budget, the judge shall file a copy ofthe proposed budget with
the county clerk." Id. § 111.006(a). Subsequently, "[t]he commissioners court shall hold a public
hearing on the proposed budget." Id. § 111.007(a). The hearing must be set for a date that is "after
the 15th day of the month next following the month" in which the county judge first prepared the
budget. Id. § 111.007(b) (emphasis added). Thereafter, the commissioners court must give public
notice of the date that it will consider the proposed budget. See ide §§ 111.007(c), .0075. "At the
conclusion ofthe public hearing, the commissioners court shall take action on the proposed budget,
[having made] any changes in the proposed budget that it considers warranted by the law and
required by the interests of the taxpayers." Id. § 111.008(a)-(b); see generally Tex. Att'y Gen. Ope
No. GA-0051 (2003).3

        Simultaneously with the process just described, another process occurs-this one involving
the statutory directive to a commissioners court to "set the amount of the compensation, office and
travel expenses, and all other allowances for county and precinct officers and employees who are
paid wholly from county funds." TEX. Loc. GOV'T CODE ANN. § 152.011 (Vernon 2008). The


        2As ofthe 2000 Census, the population ofGrimes County was 23,552. See BUREAU OF THE CENSUS, U.S. DEP'T
OF COMMERCE, 2000 CENSUS OF POPULATION, available at http://quickfacts.census.gov/qfd/states/48/48185.html (State
and County Quick Facts) (last visited Apr. 29, 2008).

        3We specifically do not construe the term "take action" to be limited to the fmal adoption of the budget.
Mr. Sidney "Buck" LaQuey - Page 3                      (GA-0620)



commissioners court is required to "set the items at a regular meeting ofthe court during the regular
budget hearing and adoption proceedings." Id. § 152.013(a). We do not understand this "regular
meeting" necessarily to have been a public hearing on the proposed budget. "Before the 10th day
before the date of the meeting, the commissioners court must publish in a newspaper of general
circulation in the county a notice of: (1) any salaries, expenses, or allowances that are proposed to
be increased; and (2) the amount of the proposed increases." Id. § 152.013(b).

        "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 committee4 to reconsider
that officer's proposed salary or personal expenses." Tex. Att'y Gen. Op. No. GA-0051 (2003) at
2 (footnote added). Any 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." TEX. Loc. GOV'T CODE ANN. § 152.016(a) (Vernon 2008). The request
must, among other things, "be in writing" and must "be delivered to the committee chairman within
five days after the date the officer receives notice of the salary or personal expenses." Id The
grievance committee is then required to "hold a public hearing not later than the later ofthe 10th day
after: (1) the date the request is received; or (2) the date the commissioners court selects the public
members of the committee." Id. § 152.016(b). The statute then provides a complex formula for
determining the fate of the committee vote. 5 Id. § 152.016(c).

         We now tum to your specific questions. You first ask whether the "Commissioners' Court
[is] required to notify all elected officials including" the individual county commissioners, in writing,
"prior to the annual budget hearing of a proposed salary reduction from that proposed in the budget
filed by the County Judge." Request Letter, supra note 1, at 1. "Before filing the annual budget with
the county clerk," section 152.013Jc) ofthe Local Government Code requires a commissioners court
to give written notice "to each elected county and precinct officer ofthe officer's salary and personal
expenses to be included in the budget." TEX. Loc. GOV'T CODE ANN. § 152.013(c) (Vernon 2008).
Thus, an officer, including a county commissioner, must be notified in writing of the salary and
expenses proposed for that officer's position before the final budget is filed with the county clerk,
regardless of whether the proposal constitutes an increase or a reduction in salary or expenses. See
Tex. Att'y Gen. Op. No. GA-0051 (2003) at 4 ("[T]he commissioners court must notify elected
officers ofproposed 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."). The commissioners court's duty to notify the
officer continues until the commissioners court has filed the final budget with the county clerk. Id.


          4A salary grievance committee consists of nine members, the allocation of which is determined partially by
statute and partially by the commissioners court. See TEX. Lac. Gov'r CODE ANN. § 152.014 (Vernon 2008)

         5"lf, after the hearing, six or more of the members vote to recommend an increase in the officer's salary or
personal expenses, the committee shall submit its recommendation to the commissioners court in writing. If six to eight
members vote to recommend the increase, the commissioners court shall consider the recommendation at its next
meeting. Ifnine members vote to recommend the increase and sign the recommendation, the commissioners court shall
include the increase in the budget before the budget is filed and the increase takes effect in the next budget year." Id.
§ 152.016(c) (emphasis added).
Mr. Sidney "Buck" LaQuey - Page 4              (GA-0620)



         You next ask whether the commissioners court must give the requisite written notice "more
than fifteen days before adopting the budget." Request Letter, supra note 1, at 3. This question
assumes a worst-case scenario in which "notice [under section 152.013(c)] is mailed to the elected
official, who then waits until the fifth day after his receipt of such to request a hearing before the
salary grievance committee, which then waits until the tenth day after the receipt of the request to
hold a hearing." Id. at 4. We note first that section 111.007(b) of the Local Government Code
provides that the hearing on the proposed budget must be set for a date that is "after the 15th day of
the month next following the month" in which the county judge first prepared the budget. TEX. Loc.
GOV'TCODEANN. § 111.007(b) (Vernon 2008) (emphasis added). This provision should generally
insure that a county has enough time to include the findings of the grievance committee before a
commissioners court adopts its final budget. Although the statute does not mandate that notice be
given more than fifteen days prior to the final adoption of the budget, that requirement may be
administratively necessary in order to comply with the requisite statutory deadlines for grievance
and budget procedures. See ide §§ 152.013, .016. Whether it is in fact necessary would require
resolution of factual issues that are not amenable to the opinion process. See Tex. Att'y Gen. Ope
No. GA-0391 (2006) at 12 ("Resolving questions of fact is beyond the scope of the opinion
process."). Because ofthe various permutations involved in your question, we decline to speculate
about a worst-case scenario. In order to comply with the requisite deadlines for grievance and
budget procedures, county officials should commence these procedures at the earliest possible date.
We emphasize, however, that the recommendations of the grievance committee must be presented
to the commissioners court before the court files its final budget with the county clerk.

        Your last question is whether the commissioners court may pay commissioners the reduced
salary, even though the court failed to give written notice to the commissioners of the proposed
salary and expenses prior to the annual budget hearing. See Request Letter, supra note 1, at 4. As
we said in answer to your first question, section 152.013(c) ofthe Local Government Code requires
the commissioners court to give written notice of proposed salary and expenses to each elected
county official, including members of the court itself, before the budget is approved. In a prior
opinion, this office said that a commissioners court that adopted a salary for the sheriff higher than
that posted in the notice required by section 152.013(b) was not authorized to pay the sheriff the
increased amount. Rather, the sheriffwas entitled only to the salary that he received during the prior
budget year. See Tex. Att'y Gen. Ope No. GA-0162 (2004) at 2-3. Just as the public notice
requirement of section 152.013(b) is mandatory, so too is the individual notice requirement
of section 152.013(c). See TEX. Loc. GOV'T CODE ANN. § 152.013(b)-(c) (Vernon 2008).
Accordingly, if the commissioners court fails to give the written notice required in section
152.023(c) before the final adoption ofthe budget, the salaries of the commissioners must remain
fixed at the prior year's amount. Tex. Att'y Gen. Ope No.GA-0162 (2004) at 2-3 (although
commissioners court had approved increase in sheriffs salary, court did not comply with required
notice requirements; thus, sheriffs salary was limited to that of prior year).

        You indicate that because members ofthe commissioners court were not given written notice
ofthe proposed salary reduction, the increased expenditure ofpaying them their prior year's salaries
will require the commissioners court to amend the budget. See Request Letter, supra note 1, at 4.
"After final approval of the budget, the commissioners court may spend county funds only in strict
Mr. Sidney "Buck" LaQuey - Page 5               (GA-0620)




compliance with the budget, except in an emergency.." TEX. Loc. GOV'T CODE ANN. § 111.010(b)
(Vernon 2008) (emphasis added). An "emergency" requires "a case ofgrave public necessity to meet
an unusual and unforeseen condition that could not have been included in the original budget through
the use of reasonably diligent thought and attention." Id. § 111.010(c). As you observe, it may be
questioned whether the situation presented here constitutes "an unusual and unforeseen condition
that could not have been included in the original budget through the use of reasonably diligent
thought and attention." Request Letter, supra note 1, at 4. On the other hand, the Commissioners
Court might point to the significant number of attorney general opinions on county budget matters
iIi recent years to conclude that even "reasonably diligent thought and attention" could not have
prevented the current situation. In any case, whether the circumstances warrant such a finding is a
fact question that is not amenable to the opinion process. Rather, that determination must be made
in the first instance by the commissioners court itself, and ultimately, by a court ofthe judiciary. See
Tex. Att'y Gen. Ope No. GA-0542 (2007) at 5 ("This office does not find facts or resolve fact
questions in the opinion process.").

        In conclusion, a commissioners court is required to provide written notice to each elected
county and precinct officer ofthe officer's salary and personal expenses to be included in the budget
before the final annual budget is filed with the county clerk. See TEX. Loc. GOV'T CODE ANN.
§ l52.0l3(c) (Vernon 2008). Section 111.007(b) of the Local Government Code provides that the
budget hearing must be set for a date that is "after the 15th day of the month next following the
month" in which the county judge first prepared the budget. Id. § i ll.007(b) (emphasis added).
This provision should generally insure that a commissioners court has enough time to include the
findings ofa grievance committee before adoption ofthe final budget. To the extent that it does not,
we recommend commencing the two processes as early as possible in order to comply with the
intricacies of the two schemes. If the commissioners court failed to give written notice to each
commissioner of a proposed salary reduction before adopting the final budget, the salaries of the
commissioners must remain fixed at the prior year's amount.
Mr. Sidney "Buck" LaQuey - Page 6            (GA-0620)



                                      SUMMARY

                      "Before filing the annual budget with the county clerk," the
              commissioners court ofa county is required to provide "written notice
              to each elected county and precinct officer," including members of
              the court itself, "of the officer's salary and personal expenses to be
              included in the budget." TEX. Lac. GOV'T CODE ANN. § 152.013(c)
              (Vernon 2008). Recommendations of a salary grievance committee
              should be considered before a commissioners court adopts a final
              budget. If a commissioners court fails to give written notice of a
              commissioner's salary and expenses included in the budget, the
              commissioners court may not adopt a proposed salary reduction, and
              the salaries of the commissioners must remain fixed at the prior
              year's amount.




KENT C. SULLIVAN
First Assistant Attorney General

ANDREW WEBER
Deputy Attorney General for Legal Counsel

NANCY S. FULLER
Chair, Opinion Committee

Rick Gilpin
Assistant Attorney General, Opinion Committee
