                                           March 23,1999



The Honorable David Aken                           Opinion No. JC-0026
San Patricia County Attorney
County Courthouse, Room 102                        Re: Whether the commissioners court may pay
Sinton, Texas 78387                                the sheriff the same amount of longevity pay he
                                                   received as a deputy (RQ- 1216)

Dear Mr. Aken:

        You have asked this office, in effect, whether the commissioners court of San Patricia
County may pay the sheriff the same amount of longevity pay per month to which he was entitled
as a deputy before his election to office. We conclude that, while we find no bar to the court’s
deciding prospectively to compensate the sheriff at the rate in question (a decision which is wholly
at the court’s discretion), article III, section 53 of the Texas Constitution will not permit the court
to increase such longevity pay retroactively.

        As we understand it, the sheriff of San Patricia County has held his current position since
1989, after serving just under twenty-three years as a law enforcement officer with the county.
Letter from Honorable David Aken, San Patricia County Attorney, to Honorable Dan Morales,
Texas Attorney General (Mar. 6, 1998) (on file with Opinion Committee) [hereinafter Aken letter
of 3/6/98]. As a deputy sheriff, he had been entitled on the basis of that length of service to
longevity pay of $100 per month. Elected officials of San Patricia County, however, are paid a
maximum of $60 per month longevity pay. Accordingly, since assuming his present office the
sheriff has been paid at the $60 rate. The commissioners court apparently now wishes to change the
sheriffs rate of compensation to $100 per month, and is also considering, as you put it, “paying him
arrearages with interest.” Letter from Honorable David Aken, San Patricia County Attorney, to
Sarah Shirley, Office of the Texas Attorney General (Oct. 22, 1998) (on tile with Opinion
Committee).

       Local Government Code section 152.011 provides that the commissioners court shall “set
the amount of the compensation         and all other allowances for county and precinct officers and
employees who are paid wholly from county funds.” TEX. Lot. GOV’T CODE ANN. $ 152.011
(Vernon 1988). This office has interpreted “compensation” for such purposes to include longevity
pay. See Tex. Att’y Gen. LO-96-07 (county could provide longevity pay to county employees).
Accordingly, the decision as to the rate of longevity pay to be granted the sheriff prospectively is for
the court to make.
The Honorable David Aken - Page 2                (JC-0026)




         While the court may at its discretion increase the sheriffs rate of longevity pay, it may not
pay him more for services already rendered. Article III, section 53 ofthe Texas Constitution forbids
a county to pay “any extra compensation, fee or allowance to a public officer, agent, servant or
contractor, after service has been rendered, or a contract has been entered into, and performed in
whole or in part.” This office has repeatedly opined that article III, section 53 prohibits the
retroactive awarding of compensation. See, e.g., Tex. Att’y Gen. LO-94-46, at 5 (county may not
compensate county judge for performing tasks of emergency medical services administrator in prior
fiscal year); LO-94-67, at 2 (board of directors of appraisal district may not pay bonuses to
employees unless the bonus plan was approved before services were rendered); see also Tex. Att’y
Gen. LO-94-93 (three per cent salary increase awarded five months after completion of contract
violated article III, section 44, the state companion to article III, section 53).

         There is a distinction between retroactive compensation for work already performed and
back-pay to which an employee is entitled, but which has not been paid. Do&hit v. Ector County,
740 S.W.2d 16, 18 (Tex. App.-El Paso 1987, writ denied). Accordingly in Letter Opinion 93-57,
this offtce averred that article III, section 53 did not prevent the payment of a salary increase to
which a jailer had become entitled a year before, but which she had not been receiving due to an
oversight. Tex. Att’y Gen. LO-93-57.

         However, the issue before us now can be distinguished from that in Letter Opinion 93-57.
In that case, the jailer was entitled on the basis of the already-existing county pay scale to the
payments she had not been receiving. Here, the sheriff has since he took office been receiving what
you characterize as “the maximum rate [of longevity pay] that the County pays its elected
officials.” Aken letter of 3/6/98, supra. Since having taken of&e, he has, ofcourse, been an officer
and not an employee, and therefore is not entitled to the longevity pay rate due the deputies.
Accordingly, any increased compensation would not be back-pay or “arrearages” which he had
earned and for which he had an expectation. Therefore, such retroactive payments as you suggest
might be made are not permitted by article III, section 53.
The Honorable David Aken - Page 3                (Jc-0026)




                                       SUMMARY

               The commissioners court of San Patricia County may, at its discretion,
           adjust its rate of longevity pay for the sheriff of the county prospectively.
           Article III, section 53 of the Texas Constitution, however, forbids it from
           making such an adjustment retroactively.




                                              Attorney General of Texas


ANDY TAYLOR
First Assistant Attorney General

CLARK RENT ERVIN
Deputy Attorney General - General Counsel

ELIZABETH ROBINSON
Chair, Opinion Committee

Prepared by James E. Tourtelott
Assistant Attorney General
