Can a Texas county fax an elected officer the written notice of their proposed salary?

Plain-English summary

Each year a Texas county sets the salaries and personal expenses of its elected county and precinct officers as part of the budget. Section 152.013 of the Local Government Code requires the commissioners court, after it adopts the budget but before it files the budget with the county clerk, to give each elected officer "written notice" of the salary and expenses planned for that officer. An officer who is unhappy with the figure then has five days, under section 152.016, to ask the salary grievance committee for a hearing. The Van Zandt County Criminal District Attorney asked the Attorney General two questions that came out of a real budget dispute: first, whether the county could deliver that written notice by fax, with a transmission verification report; and second, whether the five-day window to file a grievance could be stretched for two constables who said they never got the faxed notice.

On the first question, the Attorney General concluded that faxing the notice does not violate section 152.013 as a matter of law. The statute requires only "written notice" and says nothing about the method of delivery. The Code Construction Act defines "written" to include "any representation of words, letters, symbols or figures," which does not point to any particular delivery method, so a county may decide how to deliver the notice, including by fax. On the second question, the Attorney General concluded that an officer who as a matter of fact does not receive the required notice is entitled to the full five days measured from when the officer actually receives it. That is not an extension; it simply follows the statute's text, which starts the clock on the date the officer "receives notice." Whether a particular officer actually received the notice is a fact question the opinion would not resolve. The opinion added one firm limit: the time to complain cannot run past the start of the county's fiscal year, and a county cannot lengthen it by holding off on filing the budget.

Currency note

This opinion was issued in 2002. 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

County commissioners courts and county auditors (what the opinion held for them): The opinion concluded that section 152.013 does not as a matter of law preclude faxing the written salary notice to an elected officer, and that a county may choose the method or methods it uses to deliver the notice.

Elected county and precinct officers (what the opinion held for them): The opinion concluded that an officer who in fact did not receive the written notice keeps the full five days under section 152.016 to file a grievance, measured from actual receipt, but that the window does not extend past the start of the county's fiscal year. The opinion did not decide whether any particular constable actually received the fax; that was a fact question.

The Van Zandt County District Attorney, who asked (the scope of the answer): The opinion answered the two specific questions presented (whether telephonic document transfer with transmission verification satisfies section 152.013, and whether the section 152.016 deadline could be extended past budget approval) and expressly declined to resolve the underlying factual dispute over whether the two constables received their faxed notices.

Common questions

Can a Texas county send a salary notice to an elected officer by fax?
Under this opinion, yes. The Attorney General concluded that section 152.013 requires only "written notice" and does not dictate a delivery method, so faxing the notice does not violate the statute as a matter of law.

Does the county have to prove the officer actually got the fax?
The opinion treated whether an officer actually received notice as a question of fact that the Attorney General's office would not resolve. It noted the auditor had kept transmission verification reports, but it left the factual receipt question to be decided locally.

If an officer never received the notice, do they lose the right to a grievance hearing?
Not automatically. The opinion concluded the five-day period to request a hearing runs from when the officer actually receives the notice, so an officer who never received it has not yet started the clock, subject to the fiscal-year cutoff.

Can the county extend the grievance deadline by delaying the budget filing?
No. The opinion concluded the time to complain to the salary grievance committee cannot run past the start of the county's fiscal year, and a county may not extend that period by delaying the budget's filing.

Background and statutory framework

Subchapter B of chapter 152 of the Local Government Code sets the procedure for fixing the annual salary and personal expenses of each elected county and precinct officer who is paid wholly from county funds. Tex. Loc. Gov't Code Ann. §§ 152.011, .013 (Vernon 1999). The commissioners court sets these amounts at a regular meeting during the budget hearing and adoption proceedings, id. § 152.013(a), and at least ten days before that meeting must publish a newspaper notice of any proposed salary, expense, or allowance increases and their amounts, id. § 152.013(b). After adopting the budget but before filing it with the county clerk, the commissioners court "shall give written notice to each elected county and precinct officer of the officer's salary and personal expenses to be included in the budget." Id. § 152.013(c).

An officer "aggrieved by the setting" of the salary or expenses may request a hearing before the salary grievance committee. Id. § 152.016(a). The request must be in writing, must be delivered to the committee chair "within five days after the date the officer receives notice," and must state the desired change. Id. § 152.016(a)(1)-(3). The committee must hold a public hearing within ten days of a request, id. § 152.016(b), and if it mandates or recommends an increase the commissioners court adjusts the budget before filing so the increase takes effect in the next budget year, id. § 152.016(c). A county with a population under 225,000 generally may levy taxes and spend only in accordance with the approved budget. Id. § 111.010(a), (b).

On the first question, the opinion relied on the Code Construction Act's definition of "written" to "include[] any representation of words, letters, symbols or figures," Tex. Gov't Code Ann. § 311.005(11) (Vernon 1998), to conclude that the term does not fix any particular means of delivery, so a county may determine how to deliver the section 152.013 notice. It noted in passing that, effective January 1, 2002, an electronic record satisfies a law requiring a written record with respect to a transaction. Tex. Bus. & Comm. Code Ann. § 43.007(c) (Vernon 2002). On the second question, the opinion read the plain language of section 152.016(a)(2), which starts the five-day period on the date the officer "receives notice," to mean that an officer who never received notice has not started the clock, while emphasizing that the salary grievance committee cannot meet to hear a complaint after the start of the county's fiscal year.

Citations

Statutory provisions:

• Tex. Loc. Gov't Code Ann. § 152.013(c) (Vernon 1999)
• Tex. Loc. Gov't Code Ann. § 152.013(a) (Vernon 1999)
• Tex. Loc. Gov't Code Ann. § 152.013(b) (Vernon 1999)
• Tex. Loc. Gov't Code Ann. §§ 152.011, .013 (Vernon 1999)
• Tex. Loc. Gov't Code Ann. § 152.016(a) (Vernon 1999)
• Tex. Loc. Gov't Code Ann. § 152.016(a)(2) (Vernon 1999)
• Tex. Loc. Gov't Code Ann. § 152.016(a)(1) (Vernon 1999)
• Tex. Loc. Gov't Code Ann. § 152.016(a)(3) (Vernon 1999)
• Tex. Loc. Gov't Code Ann. § 152.016(b) (Vernon 1999)
• Tex. Loc. Gov't Code Ann. § 152.016(c) (Vernon 1999)
• Tex. Loc. Gov't Code Ann. § 111.010(a), (b) (Vernon 1999)
• Tex. Gov't Code Ann. § 311.005(11) (Vernon 1998)
• Tex. Bus. & Comm. Code Ann. § 43.007(c) (Vernon 2002)

Source

• Landing page: https://www.texasattorneygeneral.gov/opinions/john-cornyn/jc-0471
• Original PDF: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/2002/jc0471.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

February 26, 2002

The Honorable Leslie Poynter Dixon
Van Zandt County Criminal District Attorney
202 North Capitol
Canton, Texas 75103

Opinion No. JC-0471

Re: Whether a county may fax the required written notice of an officer's proposed salary and expenses to the officer under section 152.013 of the Local Government Code, and related question (RQ-0435-JC)

Dear Ms. Dixon:

Under section 152.013 of the Local Government Code, a county commissioners court, after adopting a budget for an upcoming fiscal year but before filing it with the county clerk, must inform each elected county and precinct officer of the officer's salary and personal expenses included in the budget by "written notice." TEX. LOC. GOV'T CODE ANN. § 152.013(c) (Vernon 1999); see Tex. Att'y Gen. Op. No. DM-405 (1996) at 3-4. You ask whether transmitting the required written notice by fax "with transmission verification" is sufficient to comply with section 152.013.[1] While section 152.013 requires the county commissioners court to provide each elected officer "written notice," it does not specify a means by which the notice must be provided to each officer. Accordingly, we conclude that transmission by fax does not violate section 152.013 as a matter of law.

You also ask whether, if a county or precinct officer does not receive the required written notice, the county may extend the time limit set by section 152.016 of the Local Government Code, which requires an officer "who is aggrieved by the setting of the officer's salary or personal expenses [to] request a hearing before the salary grievance committee . . . within five days after the date the officer receives" the written notice provided under section 152.013. TEX. LOC. GOV'T CODE ANN. § 152.016(a)(2) (Vernon 1999); see also id. § 152.013(c); Brief in Support, supra note 1, at 6. We conclude that an elected officer who does not receive the written notice is entitled to have five days after receiving the written notice in which to file his or her grievance under section 152.016. This does not extend the time period, but simply effectuates the time period set out by statute. The allowable time period does not extend beyond the start of the county's fiscal year, however.

Chapter 152, subchapter B of the Local Government Code provides a procedure by which a county must set the annual salary and personal expenses that will be paid to each elected county and precinct officer who is wholly paid from county funds. See TEX. LOC. GOV'T CODE ANN. §§ 152.011, .013 (Vernon 1999). The county commissioners court annually must set the "salary, expenses, and other allowances . . . at a regular meeting . . . during the regular budget hearing and adoption proceedings." Id. § 152.013(a). At least ten days before the date of the meeting, the commissioners court "must publish in a newspaper of general circulation in the county a notice of . . . any salaries, expenses, or allowances" that the budget proposes to increase, as well as the amount of the proposed increases. Id. § 152.013(b).

After the commissioners court has adopted the budget, "but before filing it with the county clerk," see Tex. Att'y Gen. Op. No. DM-405 (1996) at 4, section 152.013 requires the commissioners court to notify each officer of the proposed salary and personal expenses budgeted for the officer: "Before filing the annual budget with the county clerk, the commissioners court shall give written notice to each elected county and precinct officer of the officer's salary and personal expenses to be included in the budget." TEX. LOC. GOV'T CODE ANN. § 152.013(c) (Vernon 1999). Within five days of receiving the required written notice, an officer "who is aggrieved by the setting of the officer's salary or personal expenses may request a hearing before the salary grievance committee." Id. § 152.016(a); see Tex. Att'y Gen. Op. No. DM-405 (1996) at 4. A request for a hearing "must . . . be in writing"; must "be delivered to the . . . chair" of the salary grievance committee "within five days after the date the officer receives notice of the salary or personal expenses"; and must "state the desired change in salary or personal expenses." TEX. LOC. GOV'T CODE ANN. § 152.016(a) (Vernon 1999); see also Tex. Att'y Gen. Op. No. DM-405 (1996) at 4. Within ten days of receiving a request for a hearing, the salary grievance committee must conduct a public hearing. See TEX. LOC. GOV'T CODE ANN. § 152.016(b) (Vernon 1999); Tex. Att'y Gen. Op. No. DM-405 (1996) at 4. If the salary grievance committee mandates or recommends that the commissioners court increase an aggrieved officer's salary or expenses, the commissioners court must or may, respectively, adjust the budget "before the budget is filed and the increase takes effect in the next budget year." TEX. LOC. GOV'T CODE ANN. § 152.016(c) (Vernon 1999); see also Tex. Att'y Gen. Op. No. DM-405 (1996) at 4. Generally, a county with a population fewer than 225,000, such as your county, may levy taxes and expend funds only in accordance with the approved budget. See TEX. LOC. GOV'T CODE ANN. § 111.010(a), (b) (Vernon 1999); see also 1 BUREAU OF THE CENSUS, U.S. DEP'T OF COMMERCE, 1990 CENSUS OF POPULATION: General Population Characteristics: Texas 4 (1992) (Van Zandt County population is 37,944) (48,140 according to 2000 census, available at http://www.census.gov/).

On July 31, 2001, the Van Zandt County Judge filed a proposed budget for fiscal year 2001-2002, which began on October 1, 2001. See Brief in Support, supra note 1, at 1. As proposed, the budget allocated an annual salary of $18,876 for each of four elected constables, which amount did not increase the salary for any constable. See id. The county commissioners court held a public hearing on the budget on August 20, 2001, and on the same day, the commissioners court approved the proposed budget in its regular meeting "during the regular budget hearing and adoption proceedings." Id. "The salary of each of the four constables was set at $18,876, as had been proposed by the County Judge." Id.

One day later, on August 21, 2001, the Van Zandt County Auditor "provided written notice to each elected county and precinct officer of the officer's salary and personal expenses to be included in the budget." Id. You state that the auditor "served the written notice by telephonic document transfer," which we assume to be by fax. Id. Upon receiving written notice, two of the constables properly filed grievances within the time period specified in section 152.016 of the Local Government Code, and the salary grievance committee mandated the requested increases. See id.; see also TEX. LOC. GOV'T CODE ANN. § 152.016 (Vernon 1999).

You suggest that the remaining two constables claim they did not receive the faxed written notices. See Brief in Support, supra note 1, at 2. You allege, however, that the county auditor faxed the written notices "to the telecopier number published on each constable's letterhead. The same telecopier numbers are used by the respective justices of the peace," each of whom received his or her written notice and filed a grievance. Id. Moreover, the auditor "maintained 'transmission verification reports' verifying the transmission of the notice" to the two constables, and you have sent copies of the reports that purport to indicate the date, time, and length of the fax transmission and the destination. Id.; see also id. app. A.

The two constables have requested a hearing before the salary grievance committee, although, aside from the timeliness issue, their requests do not strictly comply with the requirements of section 152.016. One constable's request did not "state the desired change in salary or personal expenses," as section 152.016(a)(3) requires. TEX. LOC. GOV'T CODE ANN. § 152.016(a)(3) (Vernon 1999); see Brief in Support, supra note 1, at 2; id. app. B (copy of letter from David Smith). The other constable "verbally requested a hearing," although the statute requires a written request. Brief in Support, supra note 1, at 2; see TEX. LOC. GOV'T CODE ANN. § 152.016(a)(1) (Vernon 1999).

At its September 10, 2001 meeting, the commissioners court met in regular session and adjusted the budget to increase the salaries for the two constables who had properly filed grievances with the salary grievance committee. See Brief in Support, supra note 1, at 3. The court approved the budget, as amended, but the court has not filed it with the county clerk, pending a response from the Attorney General. See id. at 3-4.

You specifically ask two questions:

[1] Is telephonic document transfer with transmission verification sufficient to comply with the requirements of section 152.013 of the Local Government Code? [and]

[2] If a county or precinct officer did not receive written notice of the officer's salary and personal expenses as required by section 152.013 of the Local Government Code, may the time limit of section 152.016[,] which requires a request for a hearing before the salary grievance committee to be made prior to the approval of the county's budget be extended to allow the request to be made after the approval of the budget but before the budget is filed with the county clerk[?]

Id. at 4, 6.

We conclude, in response to your first question, that section 152.013 of Local Government Code does not as a matter of law preclude a commissioners court from faxing its written notice to an elected officer. Section 152.013 requires only that a commissioners court give "written notice to each elected . . . officer of the officer's salary and personal expenses to be included in the budget." TEX. LOC. GOV'T CODE ANN. § 152.013(c) (Vernon 1999). As you point out, the Code Construction Act directs that the term "'written' includes any representation of words, letters, symbols or figures." TEX. GOV'T CODE ANN. § 311.005(11) (Vernon 1998); see Brief in Support, supra note 1, at 4. Thus defined, the term does not indicate any particular means by which a "written" notice must be delivered to the recipient. Faxing a document involves transmitting the spots of color on a page telephonically to a receiving fax machine. See BLACK'S LAW DICTIONARY 624 (7th ed. 1999) (defining "fax" as "method of transmitting over telephone lines an exact copy of a printing."); Marshall Brain, How Fax Machines Work, at http://www.howstuffworks.com/fax-machine.htm. Accordingly, a county may determine the method or methods it will use to deliver the required written notice to the elected officers entitled to notice. See Tex. Att'y Gen. Op. No. JC-0171 (2000) at 1 (stating that county commissioners court may exercise only those powers that state constitution and statutes confer upon it, either explicitly or implicitly); see also TEX. BUS. & COMM. CODE ANN. § 43.007(c) (Vernon 2002) (providing that, with respect to "transaction," electronic record satisfies law requiring written record) (effective January 1, 2002).

In response to your second question, we conclude that an elected officer who as a matter of fact does not receive the required written notice is entitled to have five days after actually receiving the notice in which to file his or her grievance under section 152.016. The statute's plain language indicates that the five-day period does not start to run until the date the officer receives notice, and this is not considered an "extension" of the five-day period. See id.; Brief in Support, supra note 1, at 6. Under section 152.016, an elected officer who wishes to file a request for a salary grievance hearing must do so by a writing that is "delivered to the committee chairman within five days after the date the officer receives notice of the salary or personal expenses." TEX. LOC. GOV'T CODE ANN. § 152.016(a)(2) (Vernon 1999) (emphasis added). Whether, as a matter of fact, an officer actually received notice for the purposes of section 152.016 is a question that is inappropriate for this office to consider. See, e.g., Tex. Att'y Gen. Op. Nos. JC-0032 (1999) at 4 (stating that question of fact is beyond purview of this office); JC-0027 (1999) at 3 (stating the questions of fact cannot be addressed in attorney general opinion); JC-0020 (1999) at 2 (stating that investigation and resolution of fact questions cannot be done in opinion process). Of course, the officer's request for a hearing must be written and must "state the desired change in salary or personal expenses." See TEX. LOC. GOV'T CODE ANN. § 152.016(a)(1), (3) (Vernon 1999).

Yet, the allowable time period in which an officer may file a complaint is not unlimited. Section 152.016 of the Local Government Code requires an officer to request a hearing before the salary grievance committee "before the approval of the county's annual budget." TEX. LOC. GOV'T CODE ANN. § 152.016(a) (Vernon 1999). Moreover, a salary grievance committee may not meet to hear a complaint after the start of the county's fiscal year. See Tex. Att'y Gen. Op. No. DM-405 (1996) at 4. The county may not extend this time period by delaying the budget's filing.

SUMMARY

Section 152.013 of Local Government Code does not as a matter of law preclude a commissioners court from faxing its written notice to an elected officer. See TEX. LOC. GOV'T CODE ANN. § 152.013(c) (Vernon 1999). A county may determine the method or methods it will use to deliver the required written notice to the elected officers entitled to notice.

An elected officer who as a matter of fact does not receive the written notice that section 152.013 requires is entitled to have five days after actually receiving the written notice in which to file his or her grievance under section 152.016. See id. § 152.016(a)(2). Whether an officer actually received notice for the purposes of section 152.016 is a question of fact. Nevertheless, the allowable time period in which the officer may complain to the salary grievance committee does not extend beyond the start of the county's fiscal year.

Yours very truly,

JOHN CORNYN
Attorney General of Texas

HOWARD G. BALDWIN, JR.
First Assistant Attorney General

NANCY FULLER
Deputy Attorney General - General Counsel

SUSAN DENMON GUSKY
Chair, Opinion Committee

Kymberly K. Oltrogge
Assistant Attorney General, Opinion Committee

[1] See Brief in Support of Request for Attorney General's Opinion, at 4, attached to Letter from Honorable Leslie Poynter Dixon, Van Zandt County Criminal District Attorney, to Susan Gusky, Chair, Opinion Committee, Texas Attorney General's Office (Sept. 17, 2001) (on file with Opinion Committee) [hereinafter Brief in Support].