Is a Texas county auditor's own salary subject to the 5% budget increase cap?

Plain-English summary

A Hale County district attorney asked the Attorney General how to read a then-new budget rule for county auditors. Local Government Code section 111.013, effective June 15, 1991, said that an increase from one fiscal year to the next "in the amount budgeted for expenses of the county auditor's office or the salary of an assistant auditor" could not exceed five percent without the commissioners court's approval. The practical question was whether the county auditor's own salary was part of "expenses of the county auditor's office," so that the auditor's pay could not rise more than five percent year to year without commissioners court sign-off.

The Attorney General concluded it was not. Three things pointed the same direction. First, prior opinions of the office had treated the "expenses" of an officer, in similarly worded statutes, as not including the officer's own salary. Second, a separate statute, section 152.031(a), drew a clear line between the auditor's "salary as compensation for services" (set by the appointing district judges) and the auditor's "expenses," which suggested the drafters of section 111.013 did not lump the salary in with "expenses." Third, and most telling, the legislative history showed a deliberate choice: an earlier House version of the bill would have capped increases in "all expenses and salaries of the county auditor's office," but the enacted Senate substitute narrowed that to "expenses of the county auditor's office or the salary of an assistant auditor." Dropping the broad reference to "salaries" of the office, while keeping only the assistant auditor's salary, showed the legislature meant to leave the county auditor's own salary outside the five percent cap.

Currency note

This opinion was issued in 1992. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here. The population brackets and section numbers in Chapter 111 of the Local Government Code have been amended since 1992, so confirm the current text before relying on any threshold or cap stated here.

Background and statutory framework

Section 111.013 was part of a 1991 package that set parallel rules across the county-budget chapters depending on county population. The version at issue applied to counties under 225,000, and the legislation set identical provisions for larger counties operating under the other subchapters. Local Gov't Code §§ 111.044, 111.074. The shared rule capped year-over-year growth in the budgeted "expenses of the county auditor's office" and in an assistant auditor's salary at five percent absent commissioners court approval.

The opinion leaned first on the office's own precedent reading "expenses." It cited Attorney General Opinion H-1251 (1978), which held that the salary of an assistant county auditor did not come within the "expenses" of the county auditor for purposes of a salary grievance procedure, and Letter Advisory No. 89 (1975), which held that a county attorney's "expenses" did not encompass the entire budget of the office, only the officer's expenditures in performing the officer's own duties.

The opinion then pointed to section 152.031(a), which provides that the district judges appointing the county auditor set, by majority vote, "the auditor's annual salary as compensation for services and the auditor's travel and other expenses." Because that statute treats salary and expenses as separate categories, the opinion reasoned the drafters of section 111.013 likely understood "expenses" not to include the auditor's salary.

Finally, the opinion treated the legislative history as the strongest signal. Section 111.013 originated in House Bill 1846 and Senate Bill 1035 of the 72d Legislature. The House engrossment of House Bill 1846 would have reached "all expenses and salaries of the county auditor's office." The Senate approved a substitute, now section 111.013, that changed that phrase to "expenses of the county auditor's office or the salary of an assistant auditor." The opinion read that edit as a clear intent to free the county auditor's salary from the five percent increase limitation.

Common questions

Did the 5% cap apply to the county auditor's own pay?
No. The opinion concluded the auditor's salary was not part of the "expenses of the county auditor's office," so increases to it were not limited by section 111.013's five percent rule.

What did the 5% cap actually cover?
Year-over-year increases in the budgeted expenses of the auditor's office and in an assistant auditor's salary. Going above five percent on those required commissioners court approval.

Who set the county auditor's salary?
Under section 152.031(a), the district judges who appointed the auditor set the salary by majority vote, separately from the auditor's expenses.

Why did the legislative history matter so much here?
Because an earlier draft would have capped "all expenses and salaries of the county auditor's office," and the legislature deliberately replaced that with narrower language covering only office expenses and an assistant auditor's salary. That change showed an intent to leave the auditor's own salary out.

Citations

• Local Gov't Code § 111.013
• Local Gov't Code §§ 111.044, 111.074
• Local Gov't Code § 152.031(a)
• Tex. Att'y Gen. Op. H-1251 (1978); Tex. Att'y Gen. Letter Advisory No. 89 (1975)
• House Bill 1846 and Senate Bill 1035, 72d Legislature

Source

• Landing page: https://www.texasattorneygeneral.gov/opinions/dan-morales/dm-0118
• Original PDF: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1992/dm0118.pdf

Original opinion text

Best-effort transcription from a scanned PDF. Minor errors may remain — the linked PDF is authoritative.

Office of the Attorney General
State of Texas

DAN MORALES
ATTORNEY GENERAL

May 13, 1992

Honorable Terry D. McEachern
District Attorney
Hale County Courthouse
Plainview, Texas 79072

Opinion No. DM-118

Re: Whether a county auditor's salary is considered part of the "amount budgeted for expenses of the county auditor's office" for the purposes of the Local Government Code section 111.013, limiting increases in the budget of the county auditor's office (RQ-259)

Dear Mr. McEachern:

You have requested an opinion from this office regarding the proper construction of Local Government Code section 111.013, relating to limitations on increases in the amount budgeted for expenses of the county auditor's office or salaries of assistant auditors without commissioners court approval. This statute, effective June 15, 1991, and applicable to counties with populations of less than 225,000 people provides the following in section 111.013:

      An increase from one fiscal year to the next in the amount budgeted for expenses of the county auditor's office or the salary of an assistant auditor shall not exceed five (5) percent without approval of the commissioners court.[1]

You have asked whether the salary of the county auditor is to be considered part of "the amount budgeted for expenses of the county auditor's office," such that increases in the auditor's salary from one fiscal year to the next may not exceed five percent without commissioners court approval. We conclude that it is not.

[1] The legislation establishing section 111.013 of the Local Government Code also established identical provisions for counties with populations of more than 225,000, Local Gov't Code § 111.044, and populations of more than 125,000 choosing to operate under Local Government Code section 111, subchapter C, Local Gov't Code § 111.074.

We note at the outset that this office has previously found that "expenses" of an office, as used in similar statutes, do not include the salary of the officer or his deputy. See Attorney General Opinion H-1251 (1978) (salary of assistant county auditor does not come within "expenses" of county auditor for purposes of salary grievance procedure, where auditor is filing grievance); Letter Advisory No. 89 (1975) (county attorney's "expenses" do not encompass the entire budget of his office, but only his expenditures in performing his own duties). Moreover, we feel that Local Government Code section 152.031(a), regarding the compensation of the county auditor, clearly makes a distinction between the auditor's salary on one hand, and the auditor's expenses on the other, providing, in pertinent part, that

      the district judges appointing the county auditor shall set, by a majority vote, the auditor's annual salary as compensation for services and the auditor's travel and other expenses

Local Gov't Code § 152.031(a) (emphasis added). It is reasonable to believe that the drafters of section 111.013 were aware of the structure of section 152.031(a), and so did not regard the auditor's salary as being encompassed by the term "expenses" in section 111.013.

The legislative history of Local Government Code section 111.013 provides an even stronger basis for our conclusion that the auditor's salary is not included in the five percent increase in salary limitation. Section 111.013 had its genesis in House Bill 1846 and Senate Bill 1035 of the 72d Legislature. The House Engrossment of House Bill 1846 differed significantly from the current text of section 111.013. Section 1 of that draft provided the following:

      Subchapter A, Chapter 111, Local Government Code, is amended by adding section 111.013 to read as follows:

      . . . [Emphasis added.]

However, the Senate approved a substitute version of the bill, comprising the language of what is now section 111.013 of the Local Government Code. In this version "all expenses and salaries of the county auditor's office" was changed to "expenses of the county auditor's office or the salary of an assistant auditor." It seems clear to us that the intended effect of the substituted language in the final draft was to free the county auditor's salary from the five percent increase limitation.

Accordingly, we conclude that the salary of the county auditor is not to be considered part of the expenses of the county auditor's office subject to the five percent increase limitation of Local Government Code section 111.013.

                                SUMMARY

      Local Government Code section 111.013 provides that an increase from one fiscal year to the next in the amount budgeted for the expenses of the county auditor's office or the salary of an assistant county auditor may not exceed five percent without the approval of the commissioners court. The county auditor's salary should not be included in the calculation of the five percent increase authorized by section 111.013.

                                               DAN MORALES
                                               Attorney General of Texas

WILL PRYOR
First Assistant Attorney General

MARY KELLER
Deputy Assistant Attorney General

RENEA HICKS
Special Assistant Attorney General

MADELEINE B. JOHNSON
Chair, Opinion Committee

Prepared by Faith S. Steinberg
Assistant Attorney General