Can a Texas commissioners court give county employees raises without amending the county budget?

Texas AG Opinion JM-1268: Can a County Give Raises Without Amending the Budget?

Plain-English summary

When a position in a county office goes unfilled, the money budgeted for that salary is still sitting in the office's budget. San Patricio County's commissioners court took the money set aside for a vacant clerk's position and used it to raise the pay of other, non-elected employees in the same office, by creating new "step-grades," without formally amending the budget. Because the total amount budgeted for that office did not change, the county attorney asked the Attorney General whether the court could do this without a budget amendment.

The Attorney General said no. The county's authority to move budgeted money is governed by section 111.010(d) of the Local Government Code, adopted by the Legislature in 1989 for counties with fewer than 225,000 people. That provision lets the commissioners court, by order, "amend the budget to transfer an amount budgeted for one item to another budgeted item without authorizing an emergency expenditure." Before this change, a transfer between budget items generally required a finding of "emergency" or "grave public necessity." The 1989 provision removed that emergency-finding requirement, which was the county's main worry here.

But removing the emergency finding did not remove the amendment step. Each salary line is a separate item in the budget, so moving money from the vacant clerk position to other employees' pay is a transfer from one budgeted item to another. The plain terms of section 111.010(d) still contemplate that the court amend the budget by order to reflect that transfer. The Attorney General concluded this is true even though the total amount budgeted for salaries in the office stays the same. So the raises were not authorized without a budget amendment.

The opinion also cleared away two side concerns. Because the raises were prospective (going forward), they did not violate the ban on retroactive extra compensation in Article III, section 53 of the Texas Constitution. And setting the pay of non-elected positions outside the regular budget hearing does not by itself run afoul of the Local Government Code, so the timing was not the problem; the missing budget amendment was.

Currency note

This opinion was issued in 1990. 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.

Who this opinion affected (as of 1990)

Commissioners courts: The opinion told county commissioners that shifting budgeted salary money to give raises required a budget amendment by order, even when the money came from a vacant position in the same office and the office's total did not change.

County employees and elected officials: Non-elected employees could receive prospective raises funded this way, but only if the court formally amended the budget; the office holder could not have the pay change take effect without that step.

County auditors and budget officers: The opinion confirmed that each salary line is a separate budget item, so a transfer between salary lines is a budget transfer that section 111.010(d) requires be reflected in an amending order.

Common questions

If the total office budget doesn't change, why is an amendment needed?
Because each salary is a separate item in the budget, moving money from a vacant position to other employees is a transfer from one budgeted item to another. Section 111.010(d) of the Local Government Code contemplates that the commissioners court amend the budget by order to reflect that transfer, regardless of whether the office's total stays the same.

Doesn't the 1989 law let counties move money without an emergency?
Yes. Section 111.010(d) removed the old requirement of an "emergency" or "grave public necessity" finding for a transfer between budgeted items. But it did not remove the requirement that the court amend the budget by order to make the transfer.

Were the raises illegal because they were mid-year, not at the budget hearing?
No. The opinion noted that setting the pay of non-elected positions at a time other than the regular budget hearing is not itself prohibited (citing Attorney General Opinion JM-326 (1985)). The defect was the absence of a budget amendment.

Did the raises violate the ban on retroactive pay?
No. Because the increases were prospective, they did not violate the prohibition on retrospective compensation in Article III, section 53 of the Texas Constitution.

Background and statutory framework

The commissioners court had redistributed funds budgeted for a vacant clerk's position to other non-elected employees in the same office by creating new step-grades, without changing the total budgeted for the office. A footnote confirmed that because the increases were prospective, they did not offend the ban on retrospective compensation in Article III, section 53 of the Texas Constitution, and that the court did not violate section 151.004 of the Local Government Code (which bars the commissioners court from choosing the individual who fills a position). Attorney General Opinion JM-326 (1985) had concluded that former article 3912k, section 2(a), V.T.C.S. (now section 152.013 of the Local Government Code) does not prohibit the commissioners court from fixing the salaries of non-elected positions at times other than the regular budget hearing.

The controlling provision was section 111.010(d), adopted by the 71st Legislature (Acts 1989, 71st Leg., ch. 167, at 549, effective May 25, 1989) and applicable to commissioners courts in counties with fewer than 225,000 people, which provides that "the commissioners court by order may amend the budget to transfer an amount budgeted for one item to another budgeted item without authorizing an emergency expenditure." Because each salary is a separate item in the budget, and while a transfer no longer requires an emergency finding, the express terms of subsection (d) contemplate that the budget be amended to reflect the transfer from one budgeted item to another. The Attorney General concluded this holds even when no change occurs in the total amount budgeted for salaries in the office, so the commissioners court may not grant the salary increases without amending the budget.

Citations

Statutory and constitutional authorities:

• Local Government Code § 111.010 (county budget; subsection (d), transfer between budgeted items without emergency, added by Acts 1989, 71st Leg., ch. 167)
• Local Government Code § 151.004 (commissioners court may not determine the individual who fills a position)
• Local Government Code § 152.013 (fixing salaries of non-elected positions; formerly article 3912k, § 2(a), V.T.C.S.)
• Tex. Const. art. III, § 53 (prohibition on retrospective compensation)

Prior Attorney General opinion referenced:

• Attorney General Opinion JM-326 (1985) (commissioners court may fix salaries of non-elected positions outside the regular budget hearing)

Source

• Landing page: https://www.texasattorneygeneral.gov/opinions/jim-mattox/jm-1268
• Original PDF: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1990/jm1268.pdf

Original opinion text

Best-effort transcription from a scanned PDF. Minor errors may remain, the linked PDF is authoritative. The county's name reads "San Patricia" in the scan; the correct name, confirmed by the Sinton address, is San Patricio County.

THE ATTORNEY GENERAL OF TEXAS

December 21, 1990

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

Opinion No. JM-1268

Re: Authority of a commissioners court to grant salary increases to selected county employees without amending its budget (RQ-2099)

Dear Mr. Aken:

You ask whether the commissioners court of San Patricio County may grant salary increases to county employees without amending the budget. You state that budgeted funds not expended for vacant positions in county officials' offices were redistributed to other employees in the respective offices by establishing new "step-grades" within the offices.[Footnote 1]

The action taken by the commissioners court is reflected by the following scenario contained in your request. A clerk's position became vacant in an elected official's office and no replacement was named. Funds budgeted for the vacant position were redistributed to other positions occupied by non-elected employees without any change resulting in the total amount budgeted for the office.

Attorney General Opinion JM-326 (1985) concluded that then article 3912k, section 2(a), V.T.C.S., now section 152.013 of the Local Government Code, does not prohibit the commissioners court from fixing the salaries of non-elected positions at times other than the regular budget hearing.

Your concern over the action taken is that the commissioners court did not enter an order amending the budget nor make any finding that there was an "emergency" or "grave public necessity" that would authorize a transfer of an amount budgeted for one item to another. Subsection (d) of section 111.010, as adopted by the 71st Legislature and applicable to commissioners courts in counties with fewer than 225,000 people, provides:

(d) The commissioners court by order may amend the budget to transfer an amount budgeted for one item to another budgeted item without authorizing an emergency expenditure.

Acts 1989, 71st Leg., ch. 167, at 549 (effective May 25, 1989).

Each portion is listed as a separate item in the budget. While it is no longer necessary for the commissioners court to find that an emergency exists to justify a transfer from one budgeted item to another, the express provisions of subsection (d) contemplate that the budget be amended to reflect the transfer from one budgeted item to another. We believe this to be the case even though no change occurs in the total amount budgeted for salaries in the official's office.

                   SUMMARY

       The commissioners court of San Patricio County may not grant salary increases to selected county employees without amending the budget.

                               Very truly yours,

                               JIM MATTOX
                               Attorney General of Texas

MARY KELLER
First Assistant Attorney General

LOU MCCREARY
Executive Assistant Attorney General

JUDGE ZOLLIE STEAKLEY
Special Assistant Attorney General

RENEA HICKS
Special Assistant Attorney General

RICK GILPIN
Chairman, Opinion Committee

Prepared by Tom G. Davis
Assistant Attorney General

Footnote 1: From the facts you have related we understand the action taken by the commissioners court was designed to grant prospective increases for non-elected positions. Under these circumstances, the prohibition against retrospective compensation contained in section 53 of article III of the Texas Constitution is not violated. Nor does the commissioners court run afoul of the provision of section 151.004 of the Local Government Code prohibiting the commissioners court from determining the individual that fills a position.