Can a Texas county appoint its county judge as the county budget officer?

TX AG Opinion GA-0580: Can a county make its county judge the county budget officer?

Plain-English summary

Chapter 111 of the Local Government Code sets out how Texas counties prepare their budgets, with different rules by population. Under subchapter A (smaller counties), the county judge serves as the county budget officer. Under subchapter B (counties over 225,000), the county auditor serves as budget officer. Subchapter C is an optional alternative: a county with more than 125,000 people may choose to operate under it and have its commissioners court appoint a separate county budget officer. Williamson County, with about 350,000 residents, operated under subchapter B and wanted to switch to subchapter C. Its County Attorney asked whether, once under subchapter C, the county could appoint its county judge as the budget officer.

The Attorney General concluded it could not. Section 111.062 authorizes the commissioners court to appoint a county budget officer, but it does not say who may be appointed, and it does not authorize appointing the county judge. That silence matters because of a long-standing Texas common-law rule: a commissioners court cannot appoint one of its own members to an office over which the court holds appointment authority. The reason is the inherent incompatibility of a person being both a member of the body that makes the appointment and the appointee of that body. As the Texas Supreme Court put it in a 1928 case, a commissioners court "cannot appoint as its attorney one of its own members, to wit, the county judge."

The county judge is a member of the commissioners court and its presiding officer. The Legislature can abrogate a common-law rule, but only by plainly expressing that intent, and it did not do so in section 111.062. Courts presume the Legislature enacted the statute with knowledge of the existing common law. So, consistent with that rule, a county operating under subchapter C may not appoint its county judge to serve as its county budget officer. The opinion also noted that subchapter C was designed to let larger counties have a full-time, separate budget officer, which fits the conclusion that the judge is not the intended appointee.

Currency note

This opinion was issued in 2007. 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.

Chapter 111 of the Local Government Code and the case law cited here may have changed since 2007. Confirm the current statutes before relying on this analysis.

Who this opinion affected (as of 2007)

Commissioners courts in subchapter C counties: The opinion told them that when they appoint a county budget officer under section 111.062, they may not appoint the county judge, because the common-law rule against self-appointment bars naming a member of the appointing body.

County judges: The opinion meant a county judge could not be appointed to the separate budget-officer post in a subchapter C county, even though the judge serves as budget officer by default under subchapter A.

Williamson County specifically: The opinion answered the county's question that, if it switched to subchapter C, it could not place its county judge in the budget-officer role.

Common questions

Why can't the county judge be the budget officer under subchapter C?
Because the county judge sits on the commissioners court that makes the appointment, and Texas common law forbids a commissioners court from appointing one of its own members to an office it controls. Section 111.062 does not change that rule.

Doesn't the county judge act as budget officer in some counties?
Yes, under subchapter A the county judge serves as the county budget officer by statute, and under subchapter B the county auditor does. Subchapter C is different: it creates a separate appointed office, and the judge cannot be the appointee.

Could the Legislature allow the judge to be appointed?
It could, by plainly expressing an intent to abrogate the common-law rule. The opinion found no such expression in section 111.062.

Background and statutory framework

Chapter 111's subchapters apply by population. Subchapter A covers counties of 225,000 or less not operating under subchapter C, where the county judge is the budget officer (Tex. Loc. Gov't Code Ann. §§ 111.001-.014; §§ 111.001, .002). Subchapter B covers counties over 225,000 not operating under subchapter C, where the county auditor is the budget officer (§§ 111.031-.045; §§ 111.031, .032). Subchapter C applies only to a county over 125,000 that chooses it instead of A or B, and lets the commissioners court appoint a county budget officer (§§ 111.061-.075; § 111.062). Section 111.062 does not specify who may be appointed and does not authorize appointing the county judge.

The county judge is a member and the presiding officer of the commissioners court (§ 81.001; Rheuark v. Shaw, 628 F.2d 297, 301 n.5 (5th Cir. 1980)). Under Texas common law, officers with the appointing power are disqualified from appointment to the offices to which they may appoint, given the incompatibility of being both an appointing-body member and that body's appointee (Ehlinger v. Clark, 8 S.W.2d 666, 674 (Tex. 1928); St. Louis Sw. Ry. Co. of Tex. v. Naples Indep. Sch. Dist., 30 S.W.2d 703, 706 (Tex. Civ. App.-Texarkana 1930, no writ)). The Legislature may abrogate the common law only by plainly expressing that intent (Enos v. State, 889 S.W.2d 303, 305 (Tex. Crim. App. 1994); Bruce v. Jim Walters Homes, Inc., 943 S.W.2d 121, 122-23 (Tex. App.-San Antonio 1997, writ denied)), and is presumed to enact statutes with knowledge of existing law (Tex. Dep't of Pub. Safety v. Loeb, 149 S.W.3d 741, 745 (Tex. App.-Austin 2004, no pet.); McBride v. Clayton, 166 S.W.2d 125, 128 (Tex. 1942)). Section 111.062 was broadened by a 1981 amendment to let larger counties have a full-time, separate budget officer (Act of Mar. 19, 1981, 67th Leg., R.S., ch. 17, § 1, 1981 Tex. Gen. Laws 22), reinforcing that the judge is not the intended appointee.

Citations

Statutes:

• Tex. Loc. Gov't Code Ann. §§ 111.001-.014 (Vernon 1999 & Supp. 2007)
• Tex. Loc. Gov't Code Ann. §§ 111.031-.045 (Vernon 1999)
• Tex. Loc. Gov't Code Ann. §§ 111.061-.075 (Vernon 1999)
• Tex. Loc. Gov't Code Ann. § 111.001 (Vernon 1999)
• Tex. Loc. Gov't Code Ann. § 111.002 (Vernon 1999)
• Tex. Loc. Gov't Code Ann. § 111.031 (Vernon 1999)
• Tex. Loc. Gov't Code Ann. § 111.032 (Vernon 1999)
• Tex. Loc. Gov't Code Ann. § 111.062 (Vernon 1999)
• Tex. Loc. Gov't Code Ann. § 81.001 (Vernon 1999)
• Act of Mar. 19, 1981, 67th Leg., R.S., ch. 17, § 1, 1981 Tex. Gen. Laws 22

Cases:

• Ehlinger v. Clark, 8 S.W.2d 666, 674 (Tex. 1928)
• Rheuark v. Shaw, 628 F.2d 297, 301 n.5 (5th Cir. 1980)
• St. Louis Sw. Ry. Co. of Tex. v. Naples Indep. Sch. Dist., 30 S.W.2d 703, 706 (Tex. Civ. App.-Texarkana 1930, no writ)
• Enos v. State, 889 S.W.2d 303, 305 (Tex. Crim. App. 1994)
• Bruce v. Jim Walters Homes, Inc., 943 S.W.2d 121, 122-23 (Tex. App.-San Antonio 1997, writ denied)
• Tex. Dep't of Pub. Safety v. Loeb, 149 S.W.3d 741, 745 (Tex. App.-Austin 2004, no pet.)
• McBride v. Clayton, 166 S.W.2d 125, 128 (Tex. 1942)

Source

• Landing page: https://www.texasattorneygeneral.gov/opinions/greg-abbott/ga-0580
• Original PDF: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/2007/ga0580.pdf

Original opinion text

Best-effort transcription from the official PDF. Minor extraction artifacts may remain - the linked PDF is authoritative.

ATTORNEY GENERAL OF TEXAS

GREG ABBOTT

November 26, 2007

The Honorable Jana Duty
Williamson County Attorney
405 M.L.K. Street, Box 7
Georgetown, Texas 78626

Opinion No. GA-0580

Re: Whether a county that chooses to operate under subchapter C of chapter 111, Local Government Code, may appoint its county judge as its county budget officer (RQ-0590-GA)

Dear Ms. Duty:

Subchapter C of chapter 111 of the Local Government Code authorizes a commissioners court in a county with a population in excess of 125,000 to appoint a county budget officer to prepare the proposed county budget. See TEX. LOC. GOV'T CODE ANN. §§ 111.061-.62 (Vernon 1999) (Subchapter C: Alternate Method of Budget Preparation in Counties With Population of More Than 125,000). You ask whether a county that chooses to operate under subchapter C may appoint its county judge to serve as its county budget officer.[1]

I. Background

You inform us that Williamson County, Texas, with a population of approximately 350,000, currently operates under subchapter B of chapter 111, Local Government Code. See Request Letter, supra note 1, at 1. Williamson County desires, however, to operate under subchapter C. See id. Subchapters A, B, and C of chapter 111 prescribe the county budget preparation requirements applicable to a county, depending on the county's population size. See TEX. LOC. GOV'T CODE ANN. §§ 111.001-.014 (Vernon 1999 & Supp. 2007) (subchapter A); id. §§ 111.031-.045 (subchapter B); id. §§ 111.061-.075 (subchapter C). Subchapter A applies only to a county with "a population of 225,000 or less and that does not operate under Subchapter C." Id. § 111.001 (Vernon 1999). In a county operating under subchapter A, the county judge serves as the county budget officer. See id. § 111.002. On the other hand, subchapter B applies to a county with a population in excess of 225,000 and that does not operate under subchapter C. See id. § 111.031. In a county operating under subchapter B, the county auditor serves as the county budget officer. See id. § 111.032. Finally, subchapter C "applies only to a county that has a population of more than 125,000 and that chooses to operate under [subchapter C] instead of under subchapter A or B" and authorizes a county operating under its provisions to appoint a county budget officer. Id. §§ 111.061-.062. Thus, in a county such as Williamson County with a population in excess of 225,000, the county auditor serves as the county budget officer unless the county appoints a county budget officer pursuant to subchapter C.

II. Analysis

Section 111.062, the subchapter C provision authorizing the appointment of a county budget officer, provides in relevant part:

(a) The commissioners court of the county may appoint a county budget officer to prepare a county budget for the fiscal year.

(b) A county that establishes the office of county budget officer may abolish that office only by a formal action of the commissioners court. ... If the office is abolished, the duties of budget officer shall be performed by:

(1) the county judge, if the county has a population of 225,000 or less; or

(2) the county auditor, if the county has a population of more than 225,000.

Id. § 111.062.

While section 111.062 expressly authorizes the commissioners court to appoint the county budget officer, it does not specify who the commissioners court may appoint as the county budget officer. See id. And, as particularly relevant with respect to the application of Texas common law discussed below, the statute does not expressly authorize the commissioners court to appoint the county judge as the county budget officer. See id.

Under Texas common law, the county commissioners court may not appoint one of its members to an office over which the commissioners court has appointment authority. Ehlinger v. Clark, 8 S.W.2d 666, 674 (Tex. 1928). The county judge is a member of the commissioners court and the presiding officer when present. See TEX. LOC. GOV'T CODE ANN. § 81.001 (Vernon 1999); see also Rheuark v. Shaw, 628 F.2d 297, 301 n.5 (5th Cir. 1980) ("The commissioners court, consisting of the county judge and four county commissioners, is the governing and administrative body of a county in Texas."). Under the common law, "all officers who have the appointing power are disqualified for appointment to the offices to which they may appoint" because of the inherent incompatibility of a person being "both a member of a body making the appointment and an appointee of that body." Ehlinger, 8 S.W.2d at 674; see also St. Louis Sw. Ry. Co. of Tex. v. Naples Indep. Sch. Dist., 30 S.W.2d 703, 706 (Tex. Civ. App.-Texarkana 1930, no writ) ("[i]t is contrary to the policy of the law for an officer to use his official appointing power to place himself in office").

The Legislature has not abrogated the common-law rule against self-appointment with respect to the appointment of the county judge as the county budget officer. See TEX. LOC. GOV'T CODE ANN. § 111.062 (Vernon 1999). The Legislature may abrogate the common law if it plainly expresses such an intent. Enos v. State, 889 S.W.2d 303, 305 (Tex. Crim. App. 1994); Bruce v. Jim Walters Homes, Inc., 943 S.W.2d 121, 122-23 (Tex. App.-San Antonio 1997, writ denied). The Legislature has not expressed such an intent in section 111.062. See TEX. LOC. GOV'T CODE ANN. § 111.062 (Vernon 1999). Under established principles of statutory construction, it is presumed that the Legislature adopted section 111.062 with knowledge of and with reference to the common law prohibiting self-appointment. See Tex. Dep't of Pub. Safety v. Loeb, 149 S.W.3d 741, 745 (Tex. App.-Austin 2004, no pet.) (citing McBride v. Clayton, 166 S.W.2d 125, 128 (Tex. 1942)) ("A statute is presumed to have been enacted by the legislature with complete knowledge of the existing law and with reference to it.").[2]

Thus, consistent with Texas common law, the commissioners court cannot appoint the county judge as the county budget officer for the county. Cf. Ehlinger, 8 S.W.2d at 674 (holding that under the common-law prohibition on self-appointment, a commissioners court "cannot appoint as its attorney one of its own members, to wit, the county judge"). And, in answer to your question, we conclude that a county that chooses to operate under subchapter C of chapter 111, Local Government Code, may not appoint its county judge to serve as its county budget officer.

SUMMARY

Under Texas common law, a county commissioners court cannot appoint one of its members to an office over which the commissioners court has appointment authority. Subchapter C of chapter 111, Local Government Code, authorizing a county commissioners court of an eligible county to appoint a county budget officer, does not abrogate the common law. Accordingly, a county that chooses to operate under subchapter C is not authorized to appoint its county judge to serve as its county budget officer.

KENT C. SULLIVAN
First Assistant Attorney General

ANDREW WEBER
Deputy Attorney General for Legal Counsel

NANCY S. FULLER
Chair, Opinion Committee

Sheela Rai
Assistant Attorney General, Opinion Committee

Footnotes

[1] See Letter from Honorable Jana Duty, Williamson County Attorney, to Honorable Greg Abbott, Attorney General of Texas, at 1 (June 14, 2007) (on file with the Opinion Committee, also available at http://www.oag.state.tx.us) [hereinafter Request Letter].

[2] Consistent with our conclusion, section 111.062 was apparently adopted to allow the larger counties to have a full-time, separate county budget officer. In 1981, the Legislature adopted Senate Bill 54 amending the substance of sections 111.061 and 111.062 to have a broader application. See Act of Mar. 19, 1981, 67th Leg., R.S., ch. 17, § 1, 1981 Tex. Gen. Laws 22. A bill analysis for Senate Bill 54 explains that the provisions providing for the appointment of a county budget officer were originally adopted in 1977 to allow certain counties "to appoint a full-time budget officer." HOUSE STUDY GROUP, HOUSE COMM. ON INTERGOVERNMENTAL AFFAIRS, BILL ANALYSIS, Tex. S.B. 54, 67th Leg., R.S. (1981). Noting that only Dallas County had a full-time budget officer, the analysis states that the 1981 amendment would grant other counties, such as Harris County, where preparing the budget is "not a part-time job," the same option. See id.