Can Texas district judges raise the county auditor's salary after the budget year has already started?

Plain-English summary

In Texas counties, the county auditor and the assistant auditors are appointed and paid through an unusual arrangement: the district judges, not the commissioners court, appoint the auditor and set the salaries, while the commissioners court actually orders the money paid. The Smith County Criminal District Attorney asked the Attorney General a string of questions about whether the district judges could change those salaries after the county budget had already been adopted and the new budget year had started, what steps the auditor and judges had to take first, and whether the commissioners court could (or had to) amend the budget to cover the raises.

The opinion answered that the district judges may amend the auditor's and assistant auditors' salaries mid-year, relying on prior opinions that reached the same result. Three conditions apply, drawn from a 1983 opinion: the auditor must make a proper application to the district court, the change must not require county spending in excess of the county's anticipated revenue for that year, and the budget amendment must comply with law. The judges also must, under the Local Government Code, hold a noticed public hearing before changing the annual salary, with notice published in a newspaper of general circulation at least fifteen days ahead, and their vote must be recorded. As for the commissioners court, the opinion concluded it not only may but must amend the budget to pay the increase: once the judges have followed the statutory procedure, paying the salary is a ministerial duty with no discretion, the same rule the Texas Supreme Court applied to court reporter pay in Mays and Duncan. Finally, because article III, section 53 of the Texas Constitution forbids extra compensation for service already rendered, any increase must be prospective and takes effect only when the commissioners court adopts the necessary budget amendment.

Currency note

This opinion was issued in 2001. 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. The Local Government Code provisions on county auditors, salary-setting, and budget amendments can change, so verify the current statutes and procedures before relying on any specific rule here.

What the opinion meant for those who asked

Smith County's district judges (what the opinion held for them): The opinion held that the judges could amend the auditor's and assistant auditors' salaries during the budget year, but only after a properly noticed public hearing, a proper application from the auditor, a recorded vote, and a determination that the increase stays within anticipated revenue.

The county auditor (what the opinion held for them): The opinion held that the auditor must certify the proposed salaries and apply to the judges before any increase, following the certification process in section 84.021.

The Smith County Commissioners Court (what the opinion held for it): The opinion held that once the judges acted properly, the commissioners court had a ministerial duty to amend the budget and pay the increase, with no discretion to refuse, but that the increase had to be prospective and effective only on adoption of the budget amendment.

Common questions

Who sets the county auditor's salary in Texas?
Under this opinion and the statutes it cites, the district judges appoint the auditor and assistant auditors and set their salaries, while the commissioners court orders the payment and appropriates the money.

Can those salaries be raised after the budget year has already begun?
The opinion concluded yes, provided the auditor applies, the judges hold a noticed public hearing and follow the statutory steps, and the increase does not require spending more than the county's anticipated revenue for the year.

Can the commissioners court refuse to pay a raise the judges approved?
No. The opinion concluded that once the judges follow the proper procedure, paying the increase is a ministerial duty, citing the Texas Supreme Court's decisions in Mays and Duncan on court reporter pay.

Can the raise be made retroactive?
No. The opinion explained that article III, section 53 of the Texas Constitution bars extra pay for service already rendered, so any increase must be prospective and effective only when the commissioners court adopts the budget amendment.

Background and statutory framework

Chapter 84 of the Local Government Code provides that the district judges having jurisdiction in a county appoint the county auditor (section 84.002) at a special meeting, with the action certified to and recorded by the commissioners court (section 84.003), and that the auditor certifies a list of assistant auditors and salaries to the judges for approval (section 84.021). Chapter 152 sets the procedure for compensating the auditor and assistants: before setting compensation, the judges must hold a public hearing (section 152.905(b)) noticed in a newspaper at least fifteen days in advance (section 152.905(c)), with the vote recorded (section 152.905(d)), and the action taken by recorded order (section 152.031). The opinion relied on the rule, applied to court reporter pay under Government Code section 52.051, that paying salaries set by the district judges is a ministerial act for the commissioners court, Mays v. Fifth Court of Appeals, 755 S.W.2d 78 (Tex. 1988), and Duncan v. Pogue, 759 S.W.2d 435 (Tex. 1988). The prospective-only limit comes from article III, section 53 of the Texas Constitution, which bars granting extra compensation after service has been rendered.

Citations

Statutory and constitutional provisions:

• Tex. Loc. Gov't Code Ann. §§ 84.002, 84.003, 84.021 (Vernon 1999)
• Tex. Loc. Gov't Code Ann. §§ 152.031, 152.905
• Tex. Gov't Code Ann. § 52.051
• Tex. Const. art. III, § 53

Cases:

• Duncan v. Pogue, 759 S.W.2d 435 (Tex. 1988)
• Mays v. Fifth Court of Appeals, 755 S.W.2d 78 (Tex. 1988)

Prior Attorney General opinions:

• Tex. Att'y Gen. Op. Nos. JM-49 (1983); JC-0147 (1999); H-1266 (1978); DM-74 (1992)
• Tex. Att'y Gen. LO-98-031

Source

• Landing page: https://www.texasattorneygeneral.gov/opinions/john-cornyn/jc-0361
• Original PDF: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/2001/jc0361.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

April 3, 2001

The Honorable Jack Skeen, Jr.
Smith County Criminal District Attorney
Smith County Courthouse
100 North Broadway, 400
Tyler, Texas 75702

Opinion No. JC-0361

Re: Authority of the district judges of Smith County to amend the salaries of the county auditor's office, and related questions (RQ-0302-JC)

Dear Mr. Skeen:

You have asked this office a series of questions concerning the amendment of the salaries of the Smith County auditor's office by the district judges of Smith County. In accordance with prior opinions of this office, we conclude that, provided the appropriate public hearing is held, the necessary statutory procedures are followed, and the amendment "does not require county expenditures in excess of anticipated revenue" for the budget year, Tex. Att'y Gen. Op. No. JM-49 (1983) at 2, the district judges of Smith County may amend such salaries despite the fact that the county budget has been approved and filed, and the new budget year has begun. Such salary increases, of course, must be prospective so as not to run afoul of article III, section 53 of the Texas Constitution, and are therefore effective only upon the adoption by the commissioners court of the necessary budget amendments. See Tex. Att'y Gen. Op. No. JC-0147 (1999) at 3.

Pursuant to chapter 84 of the Local Government Code, "the district judges [having jurisdiction in a county] . . . appoint a county auditor." TEX. LOC. GOV'T CODE ANN. § 84.002 (Vernon 1999). The judges make that appointment "at a special meeting held for that purpose." Id. § 84.003(a). This having been done, the "clerk of the district court shall record the judges' action in the minutes of the court and certify it to the commissioners court. The commissioners court shall record in its minutes the judges' action and an order directing the payment of the auditor's salary." Id. § 84.003(b).

Similar provision is made by section 84.021 of the Local Government Code for the appointment of assistant county auditors:

From time to time the county auditor may certify to the district judges a list stating the number of assistants to be appointed, the name, duties, qualifications, and experience of each appointee, and the salary to be paid each appointee. The district judges, after careful consideration of the application for the appointment of the assistants and after inquiry concerning the appointees' qualifications, the positions sought to be filled, and the reasonableness of the requested salaries, shall prepare a list of the appointees that the judges approve and the salary to be paid each. The judges shall certify this list to the commissioners court, which shall order the salaries to be paid on the performance of services and shall appropriate an adequate amount of money for this purpose.

Id. § 84.021(a).

Procedures for setting the compensation of the auditor and assistant auditors are set forth in chapter 152 of the Local Government Code. Before setting such compensation, the judges must hold "a public hearing on the matter at which parties in interest and citizens have an opportunity to be heard." Id. § 152.905(b). Notice of the time, place, and subject of this hearing "must be published in a newspaper of general circulation in the county" at least fifteen days beforehand. Id. § 152.905(c). The amount of compensation to be paid must be voted on by the judges at this meeting, and the vote "must be recorded, transcribed, and maintained as a public record." Id. § 152.905(d). With respect to the salary and expenses of the auditor, "[t]he action of the district judges must be taken by order and must be recorded . . . in the minutes of the district court." Id. § 152.031(a). The district clerk thereupon certifies the order to the commissioners court, which "shall cause the order to be recorded in its minutes." Id. § 152.031(b).

You have inquired as to whether the district judges may amend the salaries of the auditor and the assistant auditors after the county budget has been approved, and the new budget year has begun. Prior opinions of this office answer your question in the affirmative. Attorney General Opinion H-1266 (1978) provided that "the salary of the county auditor of Henderson County may be increased prior to the beginning of the next fiscal year" so long as the increased salary did not exceed that of the county tax assessor-collector. Tex. Att'y Gen. Op. No. H-1266 (1978) at 2. Similarly, in Attorney General Opinion JM-49 (1983), this office concluded that "the district judge[s] may, during the course of the budget year, direct a change in the county budget which increases the salaries of the assistants in the county auditor's office." Tex. Att'y Gen. Op. No. JM-49 (1983) at 2.

Attorney General Opinion JM-49 further sets three conditions on the proposed change: that it be made "(1) upon a proper application made by the auditor to the district court; (2) only if such action does not require county expenditures in excess of anticipated revenue of the county for that year; and (3) only if amendment of the county budget is made in compliance with law." Id. Provided that these conditions are met, we believe that the district judges may increase the salaries of the auditor and the assistant auditors during the course of the county's budget year.

You further ask whether the auditor is required to certify such amended salaries and make application to the judges before such salary increases may be made. We agree with you that, pursuant to the plain language of section 84.021 which we have cited above, these conditions must be met. We further agree that the judges not only may, but must, post notice of and hold a public hearing pursuant to section 152.905 of the Local Government Code before increasing such salaries. Indeed, this office so construed section 152.905 in Attorney General Letter Opinion 98-031. That opinion concludes that while a public hearing is not required for the appointment of a particular individual as an assistant county auditor, "the district judges must . . . hold and make any changes to the annual salary at a public hearing." Tex. Att'y Gen. LO-98-031, at 3.

Finally you ask whether the commissioners court may amend the county budget so as to pay these salary increases. We conclude not only that the commissioners court may do so, but that pursuant to sections 84.021 and 152.031 of the Local Government Code, the commissioners court is under a ministerial duty to do so.

While the salaries of elected county officials may be set only in the regular annual budget hearing, those "of employees and non-elected county officers" such as the auditor and assistant auditors "may be changed by a budget amendment at any time." Tex. Att'y Gen. Op. No. JC-0147 (1999) at 1. In this instance, provided that the auditor has properly applied to the district judges and the district judges have held the appropriate hearing and otherwise followed the procedures in chapter 152, the commissioners court cannot refuse to pay the salary increase. See Duncan v. Pogue, 759 S.W.2d 435 (Tex. 1988); Mays v. Fifth Court of Appeals, 755 S.W.2d 78 (Tex. 1988).

In both Mays and Duncan, commissioners courts refused to pay salaries set by the district courts for court reporters pursuant to section 52.051 of the Government Code. The Texas Supreme Court held that the commissioners court had no discretion to make such a refusal. "[T]he pay increase . . . was a ministerial act to be performed by the Commissioners Court and an act in which the Legislature left no discretion." Mays, 755 S.W.2d at 79. In Duncan, the court wrote that an order of such a pay increase, so long as it was within the statutory limits, "was presumptively valid." Duncan, 759 S.W.2d at 435; see also Tex. Att'y Gen. Op. No. DM-74 (1992) (following Duncan and Mays). The statutory scheme at issue here, as set out in extenso above, parallels that in Mays and Duncan. The power to make the appointments and set the salaries here, as in those cases, is given solely to the district judges. Accordingly, following the rationale of those cases, we conclude that the commissioners court is under a ministerial duty to pay such salary increases.

We note that, under article III, section 53 of the Texas Constitution, a county may not grant "any extra compensation, fee or allowance to a public officer, agent, servant or contractor, after service has been rendered." TEX. CONST. art. III, § 53. Accordingly, any salary increases must be prospective, and are not effective until the commissioners approve the necessary budget amendments. See Tex. Att'y Gen. Op. No. JC-0147 (1999) at 3 ("The effect of this provision is that a salary increase authorized by a commissioners court must operate prospectively from the time of the authorization.").

SUMMARY

Provided the appropriate public hearing is held, the necessary statutory procedures are followed, and the salary amendments at issue do not "require county expenditures in excess of anticipated revenue" for the budget year, Tex. Att'y Gen. Op. No. JM-49 (1983) at 2, the district judges of Smith County may amend the salaries of the auditor and assistant auditors of the county despite the fact that the new budget year has begun. Any salary increases must be prospective, and are effective only upon the adoption by the commissioners court of the necessary budget amendments.

JOHN CORNYN
Attorney General of Texas

ANDY TAYLOR
First Assistant Attorney General

CLARK KENT ERVIN
Deputy Attorney General - General Counsel

SUSAN D. GUSKY
Chair, Opinion Committee

James E. Tourtelott
Assistant Attorney General - Opinion Committee