                                  The Attorney General of Texas
JIM MAlTOX                                       June 13. 1985
Attorney General



Supreme Court Building         EonorableJames A. Rasmussen            opinionNo.   at-326
P. 0. Box 12548                Uichita,Couuty  Attomey
Austin. TX. 7871% 2548
512l4752501
                               Wichita County Courthouse              Re: Whether a commissioners
Telex 9101874-1357             1 th 6 Lamar. Suite 207                court may reduce a county
Telecopier 512/4750288         Wichita  Falls,Texas 76301             attorney's salary after the
                                                                      annualbudget has been adopted
714 Jackson. Suite 700
Dallas. TX. 75202-4506         Dear Mr. gamussen:
214l742-89u
                                   Pou have requested an opinion from this office regarding the
                               authorityof the cnnmissionerscourt to reduce the salary of the
4824 Alberta Ave., Suite 160
                               county attorney.afc:e!r
                                                     the annual budget for the county has been
El Paso. TX. 799052793
915l-
                               approved..Specifically,you ask the followingquestions:

                                              1. Doee a comDiesionerscourt have authority
1Ml Texas. Suite 700                       to reduce lthe salary of a county attorney after
Housion. TX. 770025111                     the annual budget hearing and budget adoption
713/223-5888
                                           proceedinge?

806 Broadway. Suite 312                       2. Is the   county attorney estopped from
Lubbock, TX. 79401-3479                    claiming hwk salary by subsequently accepting
8W747.5238                                 less than the salary set pursuant to article
                                           3912k..V.T.C.S.?
4306 N. Tenth, Suite B
MeAllen. TX. 78501.1685        To assist ue in renderingour opinion,you have suppliedthe following
51s82.4547                     facts:

200 Main Plwa Suite 400                       1. On Sleptember12, 1983, after the annual
San Antonio. TX. 782G52797                 budget hewing. the final budget of Wichita
512Q25-4191                                County, TaBa  for the year of 1984 vae certified
                                           by the county judge and filed with the county
                                           clerk of Wichita County, Texas.
An Equal Opportunltyl
AffirmalIve Action Employer
                                              2. The salary of the county attorney in said
                                           budget.waeIretat,a sum of $38.919.00per annum.

                                             .3.,;On:Jcamber 31, 1983, the incumbentcounty
                                           attorneyraraigned
                                                           from office.

                                              4. On January 9, 1984, I was appointedcounty
                                           attorney by tbe ctissioners court of Wichita
                                           County,Texas.



                                                        p. 1489
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                  EonorableJames A. Rasmussen'-Page 2 (JM-326)




                              5. On the same date (January 9. 1984) the
                           commissionerscourt entered an order reducingthe
                           salary of the cowty attorney to the sum of
                           $30.312.00 per annum. This is the salary
                           currentlybeing paid.

                              6. Ho noticeva6 providedby the commisaloners
                           court aa to the proposedsalary reduction.

                       In most counties,the commiaalonerscourtmust approvethe yearly
                  operatingbudget for the county at an annual budget hearing and may
                  amend the budget to allow emergency expendituresin times of grave
                  public necessity. V.T.C.S.art. 689a-11. The commisa*onera court may
                  also make "changesin the budSet for county purposes." V.T.C.S. art.
                  6898-20.

                      The generalrule derivei,from the aforementioned
                                                                    authoritieswas
                  summarizedin Attorney GeneralOpinion E-11 (1973):

                              In most situations amendments to a county
                           budget will have I:O mset the requirementsof
                           Article 6898-11, V.'T.C.S. Whether circumstances
                           exist which will warrant an amendment to the
                           budgetwill be a questionof fact in each case.

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

                           [Als to salariesof county officersand employees,
                           the rule has been :hnpliedlyamendedby the enact-
\                          Pent, in 1971, of Article 3912k. . . .

                  AttorneyGeneralOpinionE-11 (1973).

    \                 Article3912k.V.T.C.S.,establishesguidelinesto be observedby
                  the cormnissionera
                                  court vher setting the salariesof certain county
    !\            officials and employees. tt contains the following pertinent
                  provisions:

                                Section 1. Except as otherwise provided by
                           this Act and subject to the limitationsof this
                           Act,   the conmissiorters
                                                  court Aof each county shall
                           fix the amount of compensation,office expense,
                           travel expense, and all other allowances for
                           county and precinct officials and employeeswho
                           are paid wholly frcm county funds.but in uo event
                           shall such aalarielr be set lover than they exist
                           *t the effectivedate of this Act.



                                                p. 1490
RonorableJames A. Rasmussen- Page 3      (JM-326)




            .   .   .   .

            Sec. 2. (a) The!salaries,expenses,and other
         allowancesof --
                      elected county and precinctofficers
         shall be set each year during the regularbudget
         hearing and adoptio,;proceedingson giving notice
         as providedby this ?,ct
                            --*   (Emphasisadded).

In AttorneyGeneralOpinion II-11(1973),it was stated that section2
"applies only to elected county and precinct officers,[and] requires
that their salaries be set during the regular budget hearing."
(Emphasisadded). Tbe opinion furthernoted that because section1 of
article 3912k imposes no similar limitationon the authorityof the
commissionerscourt to fix salaries of non-elected employees and
officials.these salaries

         nay be fixed at times other than during the
         regularbudget hearing. To the extent that this
         is inconsistent w:Lth Article 6898-11, Article
         3912k furnishesan :tnplied
                                  exceptionthereto.

AttorneyGeneralOpinionH-11 111973)(citationsomitted). It is clear
that since the county attorney?
                              is an electedofficial,see Tex. Const.
art. V, 521, the salary for that office nay be considea and adopted
only during the regular, ar.nualbudget hearing and adoption pro-
ceedings. V.T.C.S. art. 391;!k,12(a). -Cf. Attorney General Opinion
JM-313 (1985).

       One of the establishedmles of statutoryconstructiondecrees
that when two statutes affec:tthe same general subject matter, the
more specific of the two is controlling. See Sam Bassett Lumber Co.
v. City of Eouston, 198 S.W.Zd 879 (Tex. 19m; East Texas Oxygen Co.
v. State, 681 S.W.2d 741, 745 (Tex. App. - Austla 84, no writ). In
this instance. both articles 6898-11 and 3912k deal nenerallvwith
county budget matters and th.ecommissionerscourt's discretion in
creatingthe budget. Article 3912k, however, deals in particularwith
the salaries of county and precinct officialsand employees.subjects
that would otherwisebe guided by article 6898-11. Accordingly,we
believe that article 3912k, and the interpretations  of the statuteby
the courts and this offi,ce,control the outcome of your inquiry.
Thus, in Attorney   General Cplnion R-643 (1975) this office concluded
that the comuissioners'court   may not reduce the salary of the county
attorney   below the amount fixed at the annualbudget hearinguntil the
follovingfiscal year. This opinionnoted that althougharticle3912k
deals generallywith salary--  in'-reases.

          [i]mplicit in thie conclusion is the corollary
          that the salaries of these [elected county and
          precinct]officialsuay not be decreaseduntil the
          next fiscalyesr. ('Emphasisin original).


                               p. 1491
,A   Y.‘,




            HonorableJataesA. ~asmusaen- Page 4 (JH-326)




            It  appears.  then. ~that the conmissionerscourt is not accorded the
            discretionto "make changes in" or to amend the salaries of elected
            county   and precinct officialspursuantto article 689a-11 and 689a-20
            after approval at the regular’ budget hearing. We therefore ansver
            your first questionin the negative.

                 Your second question aska vhether the acceptanceof a salary in
            an amount less than that set :Lnaccordancewith article 3912k estops
            the county attorney from claisrtng
                                             the avount he is entitledto receive
            by lav. The mle vhicb ansvera your inquiry vas first announcedin
            Morrison v. City of Fort Worth, i55 S.Ui2d 908. 910 (Tex. 1941) and
            most recently affirmed in --
                                      Brow v. Tyler County CommissionersCourt,
            560 S.W.2d435, 437 (Tex. Civ. App. - Beaumont 1977. no vrit):

                      [W]e think it is the lav in this State that a
                      public officer cannct estop himself from claiming
                      his statutorysalary 'by agreeing to accept, or by
                      accepting,less than the salary providedby law.

            Your second question, accordi&y. is answered in the negative. We
            caution that our answers here should not be read to divest the
            cotmissionerscourt of its discretionto fix salaries in accordance
            vith the lavs of the state.or to reauire the court to award anything
            rsorethan vhat it considersto be a reasonable salary.   See V.%.C.SY
            art. 3912k. Cf. Vond v. Cotmlissioners Court of Uvalde~unty, 620
            S.U.2d 104. 108 (Tex. 1981 .
                         -----r-



                         The commissionerscourt may not reduce the
                      salary of the count:gattorney,or any salary set
                      pureuant to section2.of article 3912k. V.T.C.S.,
                      from the amount arsprovedat the annual budget
                      hearing and budget adoption proceedings. The
                      county attorney is not estopped from claimingthe
                      amounts he is entit,l.edto receive under article
                      3912k by accepting a salary less than the sum
                      originallyapprovedpursuantto article3912k.




                                                L-&g+  AttorneyGeneralof Texas


            TOM GREEN
            First AssistantAttorney   General


                                           P.   1492
HonorableJames A. Usmussen - Page 5 (m-326)




DAVID R. RICHARDS
ExecutiveAssistant AttorneyGweral

ROBERTGRAY
SpecialAssistantAttorneyGewsal

RICK GILPIN
Chaiman, OpinionCommittee

Preparedby Rick Gilpin
AssistantAttorneyGeneral

APPROVED:
OPINIONCOMHITTRE

Rick Gilpfn,Chairman
Colin Carl
Susan Garrison
Tony Guillory
Jim Noellinger
JenniferRiggs
Nancy Sutton




                              p. 1493
