Could Wichita County reduce the county attorney's salary after adopting the annual budget, and did accepting the lower pay waive the difference?

Texas AG Opinion JM-326: County Attorney Salary Reduction

Plain-English summary

The Wichita County Attorney asked whether the commissioners court could reduce his salary after the annual budget hearing and adoption, and whether accepting the lower amount prevented him from claiming the difference. Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1985/jm0326.pdf

The 1984 budget, adopted on September 12, 1983, set the county attorney's annual salary at $38,919. After the incumbent resigned, the commissioners court appointed James Rasmussen and on the same day reduced the salary to $30,312 without notice of the proposed reduction. Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1985/jm0326.pdf

JM-326 concluded that article 3912k controlled over the general county-budget amendment statutes. Because the county attorney was an elected official, section 2(a) required the salary to be set during the regular annual budget hearing and adoption proceedings. Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1985/jm0326.pdf

The commissioners court therefore could not reduce the approved salary until the following fiscal year. The opinion said elected county and precinct officers' salaries "may not be decreased until the next fiscal year." Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1985/jm0326.pdf

Accepting the lower checks did not waive the balance. JM-326 applied the rule that a public officer could not estop himself from claiming the statutory salary by agreeing to accept, or actually accepting, less. Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1985/jm0326.pdf

Currency note

This opinion was issued in 1985. 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

Could the commissioners court amend the adopted budget generally?

Yes, in circumstances allowed by articles 689a-11 and 689a-20. JM-326 found, however, that article 3912k imposed a more specific rule for elected officials' salaries. Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1985/jm0326.pdf

Why was the county attorney treated differently from a county employee?

The county attorney was an elected county officer under article V, section 21. Section 2(a)'s annual-budget timing rule applied to elected county and precinct officers, while section 1 did not impose the same limit on nonelected employees. Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1985/jm0326.pdf

Could the salary be reduced when a new person was appointed midyear?

No. JM-326 treated the salary as attached to the elected office for the fiscal year and found no authority to reduce it after adoption merely because the office changed hands. Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1985/jm0326.pdf

Did taking the lower salary checks waive the claim?

No. The opinion said a public officer could not lose the lawful salary through agreement, acceptance of less, or estoppel. Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1985/jm0326.pdf

Did JM-326 require commissioners courts to approve any salary an officer requested?

No. It cautioned that the court retained discretion to set lawful, reasonable salaries during the proper process and was not required to award more than it considered reasonable. Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1985/jm0326.pdf

Background and statutory framework

Articles 689a-11 and 689a-20 governed county-budget amendments. Attorney General Opinion H-11 had explained that article 3912k created a specific exception for salaries, especially the salaries of elected county and precinct officers. Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1985/jm0326.pdf

Section 1 of article 3912k authorized commissioners courts to fix compensation and allowances for county-funded officers and employees. Section 2(a) required elected officers' salaries to be set each year during the regular budget proceedings after notice. Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1985/jm0326.pdf

JM-326 used the rule that a specific statute controls a more general one on the same subject. Article 3912k therefore governed the county attorney's salary instead of the broader budget-amendment provisions. Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1985/jm0326.pdf

Citations and references

• Tex. Const. article V, section 21
• V.T.C.S. articles 689a-11 and 689a-20
• V.T.C.S. article 3912k, sections 1 and 2(a)
• Sam Bassett Lumber Co. v. City of Houston, 198 S.W.2d 879 (Tex. 1947)
• East Texas Oxygen Co. v. State, 681 S.W.2d 741, 745 (Tex. App. - Austin 1984, no writ)
• Morrison v. City of Fort Worth, 155 S.W.2d 908, 910 (Tex. 1941)
• Broom v. Tyler County Commissioners Court, 560 S.W.2d 435, 437 (Tex. Civ. App. - Beaumont 1977, no writ)
• Vondy v. Commissioners Court of Uvalde County, 620 S.W.2d 104, 108 (Tex. 1981)

Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1985/jm0326.pdf

Source

• Landing page: https://www.texasattorneygeneral.gov/opinions/jim-mattox/jm-0326
• Original PDF: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1985/jm0326.pdf

Original opinion text

Best-effort transcription from a scanned PDF. Minor errors may remain. The linked PDF is authoritative.

The Attorney General of Texas

June 13, 1985

Honorable James A. Rasmussen
Wichita County Attorney
Wichita County Courthouse
7th & Lamar, Suite 207
Wichita Falls, Texas 76301

Opinion No. JM-326

Re: Whether a commissioners court may reduce a county attorney's salary after the annual budget has been adopted

Dear Mr. Rasmussen:

You have requested an opinion from this office regarding the authority of the commissioners court to reduce the salary of the county attorney after the annual budget for the county has been approved. Specifically, you ask the following questions:

1. Does a commissioners court have authority to reduce the salary of a county attorney after the annual budget hearing and budget adoption proceedings?

2. Is the county attorney estopped from claiming back salary by subsequently accepting less than the salary set pursuant to article 3912k, V.T.C.S.?

To assist us in rendering our opinion, you have supplied the following facts:

1. On September 12, 1983, after the annual budget hearing, the final budget of Wichita County, Texas for the year of 1984 was certified by the county judge and filed with the county clerk of Wichita County, Texas.

2. The salary of the county attorney in said budget was set at a sum of $38,919.00 per annum.

3. On December 31, 1983, the incumbent county attorney resigned from office.

4. On January 9, 1984, I was appointed county attorney by the commissioners court of Wichita County, Texas.

5. On the same date (January 9, 1984) the commissioners court entered an order reducing the salary of the county attorney to the sum of $30,312.00 per annum. This is the salary currently being paid.

6. No notice was provided by the commissioners court as to the proposed salary reduction.

In most counties, the commissioners court must approve the yearly operating budget for the county at an annual budget hearing and may amend the budget to allow emergency expenditures in times of grave public necessity. V.T.C.S. art. 689a-11. The commissioners court may also make "changes in the budget for county purposes." V.T.C.S. art. 689a-20.

The general rule derived from the aforementioned authorities was summarized in Attorney General Opinion H-11 (1973):

In most situations amendments to a county budget will have to meet the requirements of Article 689a-11, V.T.C.S. Whether circumstances exist which will warrant an amendment to the budget will be a question of fact in each case.

This rule, however, assumes a different tenor when applied to the salaries of county officers and employees contained in the annual county budget:

[A]s to salaries of county officers and employees, the rule has been impliedly amended by the enactment, in 1971, of Article 3912k. . . .

Attorney General Opinion H-11 (1973).

Article 3912k, V.T.C.S., establishes guidelines to be observed by the commissioners court when setting the salaries of certain county officials and employees. It contains the following pertinent provisions:

Section 1. Except as otherwise provided by this Act and subject to the limitations of this Act, the commissioners court of each county shall fix the amount of compensation, office expense, travel expense, and all other allowances for county and precinct officials and employees who are paid wholly from county funds, but in no event shall such salaries be set lower than they exist at the effective date of this Act.

. . . .

Sec. 2. (a) The salaries, expenses, and other allowances of elected county and precinct officers shall be set each year during the regular budget hearing and adoption proceedings on giving notice as provided by this Act. (Emphasis added).

In Attorney General Opinion H-11 (1973), it was stated that section 2 "applies only to elected county and precinct officers, [and] requires that their salaries be set during the regular budget hearing." (Emphasis added). The opinion further noted that because section 1 of article 3912k imposes no similar limitation on the authority of the commissioners court to fix salaries of non-elected employees and officials, these salaries

may be fixed at times other than during the regular budget hearing. To the extent that this is inconsistent with Article 689a-11, Article 3912k furnishes an implied exception thereto.

Attorney General Opinion H-11 (1973) (citations omitted). It is clear that since the county attorney is an elected official, see Tex. Const. art. V, §21, the salary for that office may be considered and adopted only during the regular, annual budget hearing and adoption proceedings. V.T.C.S. art. 3912k, §2(a). Cf. Attorney General Opinion JM-313 (1985).

One of the established rules of statutory construction decrees that when two statutes affect the same general subject matter, the more specific of the two is controlling. See Sam Bassett Lumber Co. v. City of Houston, 198 S.W.2d 879 (Tex. 1947); East Texas Oxygen Co. v. State, 681 S.W.2d 741, 745 (Tex. App. - Austin 1984, no writ). In this instance, both articles 689a-11 and 3912k deal generally with county budget matters and the commissioners court's discretion in creating the budget. Article 3912k, however, deals in particular with the salaries of county and precinct officials and employees, subjects that would otherwise be guided by article 689a-11. Accordingly, we believe that article 3912k, and the interpretations of the statute by the courts and this office, control the outcome of your inquiry. Thus, in Attorney General Opinion H-643 (1975) this office concluded that the commissioners court may not reduce the salary of the county attorney below the amount fixed at the annual budget hearing until the following fiscal year. This opinion noted that although article 3912k deals generally with salary increases,

[i]mplicit in this conclusion is the corollary that the salaries of these [elected county and precinct] officials may not be decreased until the next fiscal year. (Emphasis in original).

It appears, then, that the commissioners court is not accorded the discretion to "make changes in" or to amend the salaries of elected county and precinct officials pursuant to articles 689a-11 and 689a-20 after approval at the regular budget hearing. We therefore answer your first question in the negative.

Your second question asks whether the acceptance of a salary in an amount less than that set in accordance with article 3912k estops the county attorney from claiming the amount he is entitled to receive by law. The rule which answers your inquiry was first announced in Morrison v. City of Fort Worth, 155 S.W.2d 908, 910 (Tex. 1941), and most recently affirmed in Broom v. Tyler County Commissioners Court, 560 S.W.2d 435, 437 (Tex. Civ. App. - Beaumont 1977, no writ):

[W]e think it is the law in this State that a public officer cannot estop himself from claiming his statutory salary by agreeing to accept, or by accepting, less than the salary provided by law.

Your second question, accordingly, is answered in the negative. We caution that our answers here should not be read to divest the commissioners court of its discretion to fix salaries in accordance with the laws of the state, or to require the court to award anything more than what it considers to be a reasonable salary. See V.T.C.S. art. 3912k. Cf. Vondy v. Commissioners Court of Uvalde County, 620 S.W.2d 104, 108 (Tex. 1981).

SUMMARY

The commissioners court may not reduce the salary of the county attorney, or any salary set pursuant to section 2 of article 3912k, V.T.C.S., from the amount approved at the annual budget hearing and budget adoption proceedings. The county attorney is not estopped from claiming the amounts he is entitled to receive under article 3912k by accepting a salary less than the sum originally approved pursuant to article 3912k.

Very truly yours,

JIM MATTOX
Attorney General of Texas

TOM GREEN
First Assistant Attorney General

DAVID R. RICHARDS
Executive Assistant Attorney General

ROBERT GRAY
Special Assistant Attorney General

RICK GILPIN
Chairman, Opinion Committee

Prepared by Rick Gilpin
Assistant Attorney General

APPROVED:
OPINION COMMITTEE

Rick Gilpin, Chairman
Colin Carl
Susan Garrison
Tony Guillory
Jim Moellinger
Jennifer Riggs
Nancy Sutton