.

P
                     THE      ATTOBZSEY         GENERAL
                                 OP   TEXAS




         Honorable    Charles E. Lance     Opinion   No.   JM-839
        'County and District
             Attorney                      Re:  Whether a commissioners
         Milam County Cou'rthouse          court may   reduce the    salary
         Cameron, Texas      76520         of a county    attorney    below
                                           an amount previously    approved
                                           (RQ-1232)

        Dear   Mr.   Lance:

              you ask  whether      the commissioners    court   of  Milam
        County may eliminate       or reduce   the salary    of the  Milam
        County Attorney below       the amount approved    in the   annual
        budget.

             .Senate Bill 162 (now section 45.26b of the Government
        Code) Acts 1987, 70th Leg., ch. 34, ~51, at 137,  effective
        September  1, 1987 provides:

                     (a) For rewresentina     the state before the
                 district   court in Milam Countv. the         countv
                 attornev of Milam Countv        is entitled to     be
                 comwensated   bv the state in the same        manner
                 and amount as     wrovided bv     aeneral law     for
                 district   attornevs.     The commissioners    court
                 of Milam    Countv    mav   also   comwensate     the
                 countv attornev      in an   amount it    considers
                 advisable.

                     lb) The countv attornev    of Milam   Countv
                 is entitled   to receive    from the   state   an
                 amount for the wavment of staff salaries and
                 gffice exwenses eaual to the amount wrovided
                 in the General Awwrowriations    Act to be waid
                 for those   wurwoses to   a district    attornev
    P            who serves a sinale county.

                    _Ic) If  the   countv   attornev    of    Milam
                 Countv   receives   compensation    or    exwenses
                 from the state under this Act, Milam        Countv




                                      p. 4044
Honorable   Charles   E. Lance    - Page    2   (JM-839)




        is   not   entitled   to receive   funds   under
        Subchawter   C, Chawter 41. Government   Code.                              -,_
      The bill analysis to  Senate Bill                162   (now   section
45.266 of the Government Code) states:

        BACKGROUND

           Currently,   the County     Attorney    of  Milam
        County is   not    funded    by the    state   as   a
        felony prosecutor.       The   county    attorney's
        office does    receive    funds    for   staff    and
        expenses  incurred when      preparing   cases    for
        district court, but      no salary     compensation
        is included for the attorney.

        PURPOSE       .

           S.B.   162  would  correct    a  historical
        oversight  and  would  authorize   the   county
        attorney of Milam County    to be paid by    the
        State as all other felony prosecutors    in the
        state are paid.

        SECTION-BY-SECTION       ANALYSIS

            SECTION 1. Amends Subchapter         B,   Chapter
        45, Government    Code by adding Section 45.266
        which (a) allows       the   county    attorney      of
        Milam County to be compensated        by the     state
        when representing     the state before the        dis-
        trict court    in Milam     County:     (b) Entitles
        the county attorney's      office to receive from
        the state    payment     for staff    salaries     and
        office expenses equal to the amount paid             to
        a district   attorney serving a single county;
         (c) Prohibits   Milam    County    from    receiving
        funds under Subchapter       C, Chapter 41,       Gov-
        ernment Code if      county attorney     is   compen-
        sated under this Act.

Bill Analysis     to S.B. No.   162, 70th       Leg.    (1987),     on   file
in Legislative     Reference  Library.

      Subchapter   C, chapter   41  of the  Government    Code
applies to a county attorney performing     the duties of     a
district   attorney.  It provides that  on the first day     of
September,   January, and May of.each fiscal year an    amount
is to be paid by the state into the officer's    salary    fund                 .   -,




                             p. 4045
Honorable   Charles   E. Lance      - Page   3   W-839)




of that county.1    The amount         of payment         is determined    by
the population   of the county.

      Information    furnished by you reflects that          following
the annual budget hearing, held          pursuantto     section 2     of
former article 3912k, V.T.C.S.         (now section 152.013 of the
Local   Government     Code),    the    budget   approved     by    the
commissioners    court of Milam County for 1987 provided             for
a salary     for   the    county    attorney    in   the    amount    of
$24,798.66.2     You   state    thza; o;it;Iz;st      17,    1;:' y;;e
commissioners    court    met,                      notice
eliminated   the salary      for the' office and      agreed to     pay
$150.00 per    month     for   travel expenses      for   the    county
attorney.

      You suggest   that   the commissioners                court   may   not
reduce the salary    of a county    attorney              below the    amount
set at the    annual budget   hearing until                the next    annual
budget hearing.

      In Attorney  General    Opinion   H-643  (1975)    it was
concluded  that the commissioners     court of Grayson    County
could not reduce the salary of a county attorney below the
amount set at the.annual   budget hearing until the      follow-
ing fiscal year.   The facts in that opinion are similar to
the scenario you have outlined     in that the Grayson    County
Attorney performed   the duties of the district    attorney   and
received compensation   from the state equal to the      compen-
sation paid by the state to district attorneys      under    then



    1. Under the      General Appropriations       Act, Acts    1987,
70th Leg., 2d     C-S., ch.     78, art. IV,    at 1037,    district
attorneys   not prohibited    from   practicing    law (applies     to
Milam County)     are compensated      by  the state    at    $44,342
(1988) and     $44,342    (1989).    Milam    County's   population
(22,732) resulted      in   the   county receiving     a total      of
$1,136.60   in payments    from the state each year.         (Section
41.203(b)(3),    Government     Code provides     for 5 cents      per
capita for a county with a population         of more than     19,000
and not more than 75,000).

    2.  Under the    General Appropriations      Act, Acts    1987,
70th Leg., 2d    C.S., ch.     78, art. IV,    at 1037,   district
attorneys   not prohibited    from  practicing   law (applies    to
Milam County)    are compensated     by   the state    at  $44,342
(1988). and $44,342    (1989).



                               p.   4046
Honorable   Charles    E. Lance      - Page    4     W-839)




article 33233, V.T.C.S.    (Grayson    County Attorney     is   now
governed by the Professional     Prosecutors    Act under chapter     -
46 of   the Government   Code).    The    statute also   provided
that the county may pay "such additional        amount which    the
commissioners   court of the county in its discretion         fixes
as adequate compensation."     Following    the approval   of   the
annual budget, the commissioners      court reduced the     amount
of compensation   the county was paying the county attorney.

      In Attorney    General Opinion    JM-326 (1985),    it    was
stated that the commissioners      court could not reduce       the
salary Wichita County paid its county attorney pursuant          to
then sections     1 and   2 of article 3912k,    V.T.C.S.      (now
sections  152.012 and 152.013 of the Local Government        Code)
from the amount approved at the annual budget hearing           and
budget adoption proceeding.      In JM-326 it was stated:

            In most counties,   the commissioners     court
        must approve the yearly operating      budget for
        the county at an    annual budget hearing       and
        may amend    the  budget   to   allow    emergency
        expenditures   in times of grave public neces-
        sity.   V.T.C.S.  art.   689a-11.    The   commis-
        sioners court may also make 'changes in         the
        budget for coun~ty purposes.'     V.T.C.S.     art.
        689a-20.

            The general rule derived from the    afore-
        mentioned    authorities  was summarized      in
        Attorney General Opinion H-11 (1973):

                In most   situations    amendments      to   a
            county   budget    will   have    to   meet    the
            requirements   of Article    689a-11, V.T.C.S.
            Whether circumstances      exist     which   will
            warrant an amendment      to the budget      will
            be a question of fact in each case.

        This   rule,    however,    assumes    a different
        tenor when applied to the salaries of county
        officers    and   employees     contained   in  the
        annual county budget:

            [A]s to salaries   of county officers     and
            employees, the   rule has    been  impliedly
            amended by   the  enactment,    in 1971,   of
            Article 3912k. . . .

        Attorney      General    Opinion      H-11    (1973).



                                p.   4047
     Honorable   Charles         E. Lance   - Page   5   UM-839)




                 Article    3912k,     V.T.C.S.,      establishes
             guidelines      to    be      observed      by     the
             commissioners       court    when      setting     the
             salaries of     certain    county    officials     and
             employees.      It    contains      the     following
             pertinent   provisions:

                     Section    1.    Except      as      otherwise
                 provided   by this Act      and subject to       the
                 limitations    of    this    Act,    the    commis-
                 sioners court     of each     county shall       fix
                 the   amount     of     compensation,        office
                 expense, travel      expense, and       all   other
                 allowances    for     county      and     precinct
                 officials    and    employees     who    are    paid
                 wholly from county funds, but in no event
                 shall such    salaries     be set      lower    than
                 they exist   at the effective       date of     this
                 Act.

                 .   .   .   .


,-                   Sec. 2.    (a) The   salaries,    expenses,
                 and ether    allowances   of ~electnd     co-
                 and sreci net officgrs~     shall be set.---GGh
                 mdurina         the r*aular    budact    heam
                 and adootion wroced&s        on aivino    notice
                 as   wrvcthis.                         (Emphasis
                 added.)

             In Attorney   General Opinion H-11 (1973),           it
             was stated that section        2 'applies only       to
             elected county and precinct        officers,     [and1
             requires that their       salaries be set      during
             the   regular    budget    hearing.'        (Emphasis
             added.)     The   opinion     further    noted    that
             because section 1 oE article 3912k            imposes
             no similar     limitation   on   the authority       of
             the commissioners     court    to fix salaries       of
             non-elected   employees     and officials,      these
             salaries

                 may be fixed at    times @ther than       during
                 the   regular  budget     hearing.     To     the
                 extent that   this    is   inconsistent     with
                 Article 689a-11, Article 3912k        furnishes
                 an implied exception     thereto.




                                       p. 4048
Honorable   Charles   E. Lance   - Page   6   (JM-839)




        Attorney     General      opinion      H-11     (1973)
        (citations   omitted).     It is clear that since
        the county attorney      is an elected      official,
        see Tex. Const. art. V, 521, the salary             for
        that office    may be     considered    and   adopted
        only   during    the   regular,     annual      budget
        hearing and adoption proceedings.            V.T.C.S.
        art. 3912k,     52(a).     Cf.    Attorney    General
        Opinion JM-313     (1985).

      The commissioners   court    of Milam  County is            without
authority   to eliminate   or reduce the salary of the             county
attorney below     the amount   fixed   at the   regular           budget
hearing   for the year.

      You also   ask   whether the    commissioners    court    may
eliminate   the amount   of compensation    paid   by the   county
for the county    attorney.    Subsection   (a)   of Senate    Bill
162   provides   that   the   commissioners     court  mav     also
comwensate   the county attorney     in an amount it     considers
advisable.

      In   Bloom  v.    Texas   State   Board   of   Examiners    of
Psvcholoaists,   475    S.W.2d   374,   377 (T&x.    Civ.   APP.   -
Austin 1972), rev'd     on other arounds,    492 S.W.Zd 460 (Tex.
1973) the appellate     court,   in construing   the word    "may, "
stated:

        The   word   'may'     ordinarily      implies     a
        permissive      and      discretionary       force.
        Webster's   New     International      Dictionary,
        Second Edition.     It'will not be treated as a
        word of command unless there is something         in
        the context or subject matter of the act          to
        indicate that    it was    used in that      sense.
        Rains v. Herrinq,     68 Tex. 468,     5 S.W.    369
        (1887).

      There is nothing in subsection        (a) of section    45.266
of the Government    Code to    suggest that the word *'may'* is
to   be   treated   as   a word     of   command.     Whether    the
commissioners     court    may     eliminate      the   amount     of
compensation    paid the county attorney       by the county is     a
matter left to the      discretion   of the commissioners      court
to be determined    at the regular annual budget hearings         for
the years following     the effective    date of this act.




                             p. 4049
Honorable   Charles    E. Lance     - Page    7   (JM-839)




                            SUMMARY

           The    commissioners       court      is    without
        authority   to reduce the salary of the county
        attorney    set    pursuant     to   section     2   of
        article 3912k, V.T.C.S.        (now section 152.013
        of the    Local    Government      Code),    from   the
        amount approved at the annual budget hearing
        and budget     adoption     proceedings.       Whether
        the commissioners      court of Milam County        may
        elminate the amount of compensation           paid the
        county attorney by       the county      is a matter
        left to the discretion       of the     commissioners
        court at the regular annual budget            hearings
        following'the     effective   date of Senate       Bill
        162 (now     section 45.266      of the     Government
        Code) Acts 1987, 70th        Leg., ch. 34, 51,       at
        137, effective     September    1, 1987.




                                             JIM      MATTOX
                                             Attorney  General   of Texas

MARY KELLER
Executive  Assistant     Attorney     General

JUDGE ZOLLIE STEAKLEY
Special Assistant  Attorney         General

RICK GILPIN
Chairman,  Opinion     Committee

Prepared by Tom G. Davis
Assistant Attorney General




                              p. 4050
