Can a Texas county raise the sheriff's longevity pay and give him back pay for past years?

Texas AG Opinion JC-0026: Raising a Sheriff's Longevity Pay, but Not Retroactively

Plain-English summary

The San Patricio County sheriff had spent nearly twenty-three years as a county law enforcement officer before being elected sheriff in 1989. As a deputy, his length of service had earned him $100 a month in longevity pay. But the county caps elected officials' longevity pay at $60 a month, so since taking office he had been paid the $60 rate. The commissioners court wanted to bump him up to $100 a month and was also considering paying him "arrearages with interest" for the difference over the years. The county attorney asked whether the court could do both.

The Attorney General gave a two-part answer. Going forward, yes. Local Government Code section 152.011 makes the commissioners court responsible for setting the compensation and allowances of county officers paid from county funds, and that compensation includes longevity pay. So the court had discretion to set the sheriff's longevity pay at $100 a month prospectively.

Looking backward, no. Article III, section 53 of the Texas Constitution forbids a county to pay any extra compensation to a public officer after the service has already been rendered. The opinion noted the difference between retroactive extra pay (barred) and back pay an employee was already entitled to but had not received (allowed). The sheriff's situation was the first kind: as an elected officer, not a deputy, he was not entitled to the deputy longevity rate, and he had been correctly paid the elected-official rate all along. So raising the amount for past years would be retroactive extra compensation, which the constitution does not permit.

Currency note

This opinion was issued in 1999. 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.

Common questions

Can a Texas commissioners court raise the sheriff's longevity pay?
Yes, going forward. The opinion concluded that under Local Government Code section 152.011 the court sets the compensation of county officers, and longevity pay is part of compensation, so adjusting the sheriff's longevity rate prospectively is within the court's discretion.

Can the county pay the sheriff back pay for the years he received the lower rate?
No. The opinion concluded that Article III, section 53 of the Texas Constitution forbids paying a public officer extra compensation for services already rendered, so a retroactive increase or "arrearages" would not be allowed.

Isn't unpaid back pay sometimes allowed?
Yes, but only when the employee was already entitled to the money under the existing pay scale and simply had not been paid it. The opinion distinguished that situation from this one: the sheriff was an officer, not a deputy, and was never entitled to the deputy longevity rate, so the higher amount was not owed back pay.

Background and statutory framework

Local Government Code section 152.011 directs the commissioners court to set the compensation and allowances of county and precinct officers and employees paid wholly from county funds, and the Attorney General had previously read "compensation" to include longevity pay (Letter Opinion 96-07). That gave the court discretion over the sheriff's prospective longevity rate.

The retroactive limit came from Article III, section 53, which bars extra compensation to a public officer after service has been rendered. The opinion noted it had repeatedly applied that ban to retroactive compensation (citing Letter Opinions 94-46 and 94-67, and 94-93 on the companion provision, Article III, section 44). It recognized a distinction between barred retroactive compensation and permitted payment of back pay an employee was already entitled to under an existing pay scale (the situation in Letter Opinion 93-57, where a jailer recovered a raise she should have received). Here the sheriff was an elected officer who had been properly paid the elected-official rate, so the higher deputy rate was not owed back pay, and paying it for past years would violate Article III, section 53.

Citations

Constitutional and statutory provisions:

• TEX. LOCAL GOV'T CODE ANN. § 152.011 (Vernon 1988)
• TEX. CONST. art. III, §§ 53, 44

Prior Attorney General opinions discussed: Letter Opinions 96-07, 94-46, 94-67, 94-93, and 93-57.

Source

• Landing page: https://www.texasattorneygeneral.gov/opinions/john-cornyn/jc-0026
• Original PDF: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1999/jc0026.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
JOHN CORNYN

March 23, 1999

The Honorable David Aken
San Patricio County Attorney
County Courthouse, Room 102
Sinton, Texas 78387

Opinion No. JC-0026

Re: Whether the commissioners court may pay 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 Patricio 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 Patricio 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 Patricio 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 Patricio 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 sheriff's 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 Patricio County Attorney, to Sarah Shirley, Office of the Texas Attorney General (Oct. 22, 1998) (on file 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. LOCAL 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.

While the court may at its discretion increase the sheriff's rate of longevity pay, it may not pay him more for services already rendered. Article III, section 53 of the 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. Douthit v. Ector County, 740 S.W.2d 16, 18 (Tex. App.-El Paso 1987, writ denied). Accordingly in Letter Opinion 93-57, this office 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 office, he has, of course, 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.

SUMMARY

The commissioners court of San Patricio 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.

JOHN CORNYN
Attorney General of Texas

ANDY TAYLOR
First Assistant Attorney General

CLARK KENT ERVIN
Deputy Attorney General - General Counsel

ELIZABETH ROBINSON
Chair, Opinion Committee

Prepared by James E. Tourtelott
Assistant Attorney General