Does a Texas county auditor's salary cap include the state salary supplement?

Plain-English summary

Texas caps what a county auditor can be paid. Under section 152.032 of the Local Government Code, the auditor's compensation and allowances may not exceed those of the highest paid elected county officer (other than a statutory county court judge) whose salary the commissioners court sets. The Henderson County Attorney, Nolan Wickel, was the highest paid elected officer in his county, and he is the kind of prosecutor who gets a salary supplement paid by the state. He asked whether that state supplement counts when figuring the ceiling for the county auditor's pay.

The opinion said yes. Section 152.032 ties the auditor's limit to what the highest paid officer receives "from all sources," and the state supplement is one of those sources. The opinion rejected the contrary argument that the supplement should be left out because the Legislature, not the commissioners court, "sets" the state money. The supplement is not paid directly to the county attorney; the comptroller pays it into the county's salary fund, and from there it becomes part of the salary and allowances the commissioners court sets. The Legislature even bars a commissioners court from cutting the county-funded part of a prosecutor's salary just because the state supplement came in. So the whole package, county money plus the state supplement, is the officer's compensation, and the "from all sources" language means it all counts toward the auditor's maximum.

The opinion also noted who falls outside this calculation. District judges and district attorneys are not part of it because the Legislature, not the commissioners court, sets their compensation, and statutory county court judges are expressly excluded by the statute.

Currency note

This opinion was issued in 2000. Subsequent statutory amendments, court decisions, or later Attorney General 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.

What the opinion meant for those who asked

Henderson County Attorney Nolan Wickel (what the opinion held): The opinion answered his question directly. Because he was the highest paid elected county officer and section 152.032 measures the auditor's ceiling by what that officer receives from all sources, the state salary supplement he received as a prosecutor is included when setting the maximum compensation for the county auditor.

County auditors (what the opinion held for them): The opinion meant that the cap on their compensation is the total pay of the highest paid qualifying elected officer, including any state salary supplement that officer receives, not just the county-funded portion.

Commissioners courts (what the opinion held for them): The opinion treated the prosecutor's full salary and allowances, county funds plus the state supplement paid into the county salary fund, as compensation the commissioners court sets, which is the figure that drives the auditor's statutory limit.

Common questions

Does the state salary supplement count toward a county auditor's pay ceiling?
Yes. The opinion concluded that because section 152.032 limits the auditor to what the highest paid elected county officer receives "from all sources," the state supplement paid to that officer is included.

Why does it count if the money comes from the state?
The opinion explained that the comptroller pays the supplement into the county's salary fund, not directly to the officer, so it becomes part of the salary and allowances the commissioners court sets. The statute's "from all sources" language captures it.

Who is left out of the "highest paid elected county officer" calculation?
The opinion noted that district judges and district attorneys are excluded because the Legislature sets their pay, and statutory county court judges are excluded by the express terms of section 152.032.

Background and statutory framework

A county auditor's salary is set by a majority vote of the district judges (Tex. Loc. Gov't Code § 152.031(a)), but section 152.032(a) caps that salary at the compensation and allowances "received from all sources" by the highest paid elected county officer, other than a statutory county court judge, whose salary and allowances are set by the commissioners court. District judges and district attorneys are outside the calculation because their compensation is set by the Legislature (Tex. Const. art. 5, § 1-a; Tex. Gov't Code § 46.003(a)).

A qualifying county attorney is entitled to a salary supplement under the formula in section 46.0031 of the Government Code, and a prosecutor whose combined state and county salary equals or exceeds 80 percent of the benchmark salary (the salary of a district judge under the General Appropriations Act) may not engage in the private practice of law (Tex. Gov't Code §§ 46.005, 46.001). The opinion's key textual point was section 46.0031(d): the comptroller pays the supplement to the salary fund of the county, not to the officer directly, and section 46.006 bars a commissioners court from reducing the county-funded portion of a prosecutor's salary because of the state funds. Reading those provisions with the "from all sources" language of section 152.032, the opinion concluded the state supplement is included in the maximum compensation calculation for the county auditor.

Citations

Statutory and constitutional provisions:

• Tex. Loc. Gov't Code Ann. § 152.031(a) (Vernon 1999)
• Tex. Loc. Gov't Code Ann. § 152.032(a) (Vernon 1999)
• Tex. Const. art. 5, § 1-a
• Tex. Gov't Code Ann. § 46.001, § 46.003(a), § 46.0031, § 46.005, § 46.006 (Vernon Supp. 2000)

Source

• Landing page: https://www.texasattorneygeneral.gov/opinions/john-cornyn/jc-0232
• Original PDF: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/2000/jc0232.pdf

Original opinion text

Best-effort transcription from the official scanned PDF. Minor character-level errors from the source OCR have been corrected; the linked PDF is authoritative.

OFFICE OF THE ATTORNEY GENERAL - STATE OF TEXAS

JOHN CORNYN

June 21, 2000

The Honorable Nolan B. Wickel, Jr.
Henderson County Attorney
Henderson County Courthouse, Room 100
Athens, Texas 75751

Opinion No. JC-0232

Re: Whether a state salary supplement should be included in determining who is the "highest paid elected county officer" for purposes of section 152.032 of the Texas Local Government Code (RQ-0174-JC)

Dear Mr. Wickel:

The Local Government Code provides that the total compensation that may be paid to a county auditor may not exceed the amount received by the highest paid elected county officer who is not a statutory county court judge. You ask whether the calculation of the compensation of the "highest paid elected county officer" includes the salary supplement derived from state funds. For the reasons set forth below, we conclude that the state salary supplement should be included in the calculation.

The county auditor's salary is set by majority vote of the district judges. TEX. LOC. GOV'T CODE ANN. § 152.031(a) (Vernon 1999). Section 152.032 of the Local Government Code provides, in relevant part:

(a) The amount of the compensation and allowances of a county auditor may not exceed the amount of the compensation and allowances received from all sources by the highest paid elected county officer, other than a judge of a statutory county court, whose salary and allowances are set by the commissioners court.

Id. § 152.032(a). Under the terms of this statute, a county auditor's "compensation and allowances" are limited to those of "the highest paid elected county officer other than a judge of a statutory county court." Two qualifications are imposed: (1) the referenced "highest paid elected county officer" must be one "whose salary and allowances are set by the commissioners court"; and (2) the relevant amount of "compensation and allowances" includes that which is "received from all sources." District judges and district attorneys are excluded from the calculation required by section 152.032 because their compensation is set by the legislature. TEX. CONST. art. 5, § 1-a; TEX. GOV'T CODE ANN. § 46.003(a) (Vernon Supp. 2000).

You indicate that the county attorney is the highest paid elected county officer in Henderson County. Telephone Conversation with Honorable Nolan B. Wickel, Jr., Henderson County Attorney (May 2, 2000). A county attorney who fulfills certain criteria is entitled to a salary supplement according to a complex formula described in section 46.0031 of the Government Code. TEX. GOV'T CODE ANN. § 46.0031 (Vernon Supp. 2000). A county attorney who receives, from state and county funds combined, a salary "that is equal to or exceeds 80 percent of the benchmark salary," is prohibited from engaging in the private practice of law. Id. § 46.005. The "benchmark salary" is defined as "the salary that is provided for a district judge in the General Appropriations Act." Id. § 46.001.

The question before us is how to apply the two qualifications of section 152.032 of the Local Government Code. If one focuses solely on the "received from all sources" language, it is evident that the state supplement must be included. On the other hand, it has been suggested that the supplement should not be included because it is derived from state funds and, as a consequence, "set" by the legislature rather than by the commissioners court.

In our opinion, this view is misplaced. The salary supplement is not paid directly to the county attorney, but rather to the county:

(d) At least annually the comptroller shall pay to the salary fund of each county that is entitled to receive funds under this section an amount authorized under this section to supplement the salary of the county prosecutor.

Id. § 46.0031(d). Thus, the full panoply of "salary and allowances" is still "set by the commissioners court." Some portion of "salary and allowances" is derived from taxes and fees collected by the county; another portion is derived from the state salary supplement. Furthermore, a commissioners court is specifically prohibited from reducing "the county funds provided for the salary or office of prosecutor as a result of the funds" provided by the state. Id. § 46.006. Since section 152.032 of the Local Government Code clearly specifies that the calculation is to include "the amount of compensation and allowances received from all sources," it follows that the state supplement paid to the county attorney should be included in determining the maximum calculation that may be paid to the county auditor.

SUMMARY

The maximum amount of compensation that may be paid to the county auditor of Henderson County is the total amount of compensation paid to the county attorney, including the state salary supplement.

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

Rick Gilpin
Assistant Attorney General - Opinion Committee