Could a county department head raise an employee's salary without a new commissioners-court vote, and could county employee pay change outside the annual budget hearing?
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This page answers the general question as of 1986. Ezel answers yours: what it means for your facts, under current Texas law, with citations.
Texas AG Opinion JM-430: County Employee Salary Increases
Plain-English summary
Frio County asked whether a department head could increase an employee's salary after the commissioners court adopted the budget, whether a previously approved promotion policy changed the answer, and when the court could set employee compensation. Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1986/jm0430.pdf
JM-430 concluded that, subject to exceptions for specified positions, the commissioners court had to approve the compensation and salary increases of county employees. A department head could not independently create a raise after the court set the budget. Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1986/jm0430.pdf
If the approved staffing plan and budget already contemplated a promotion with a salary increase and authorized the department head to award it, no additional approval was required. The commissioners court could also amend its budget outside the regular budget hearing to authorize a prospective raise, but could not make the raise retroactive. Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1986/jm0430.pdf
Currency note
This opinion was issued in 1986. 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 a department head give a raise that the commissioners court had not approved?
No, for the regular county employees covered by the opinion. The amount of compensation and any increase required commissioners-court approval. Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1986/jm0430.pdf
Was a separate vote needed for every promotion-based raise?
Not if the commissioners court's approved staffing and budget limits already envisioned the promotion and raise and authorized the department head to make the promotion. Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1986/jm0430.pdf
Could the commissioners court approve a raise after the annual budget hearing?
Yes. JM-430 said compensation for nonelected county employees could be changed through a budget amendment at another time of year, but the change could not operate retroactively. Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1986/jm0430.pdf
Background and statutory framework
Because Frio County did not have a civil-service system, article 3912k controlled the setting of salaries for county employees paid from county funds, subject to statutory exceptions for certain offices and positions. Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1986/jm0430.pdf
JM-430 read article 3912k together with article 3902. The commissioners court controlled the number of employees and their compensation, while the appointing officer retained authority over which particular individuals received authorized appointments or promotions. Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1986/jm0430.pdf
Citations and references
- article 3912k, V.T.C.S.
- article 3902, V.T.C.S.
- Texas Constitution article III, section 53
- Renfro v. Shropshire, 566 S.W.2d 688 (Tex. Civ. App. - Eastland 1978, writ ref'd n.r.e.)
- Tarrant County v. Smith, 81 S.W.2d 537 (Tex. Civ. App. - Fort Worth 1935, writ ref'd)
- Fausett v. King, 470 S.W.2d 770 (Tex. Civ. App. - El Paso 1971, no writ)
- Pierson v. Galveston County, 131 S.W.2d 27 (Tex. Civ. App. - Austin 1939, no writ)
Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1986/jm0430.pdf
Source
- Landing page: https://www.texasattorneygeneral.gov/opinions/jim-mattox/jm-0430
- Original PDF: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1986/jm0430.pdf
Original opinion text
Best-effort transcription from a scanned PDF via OCR. Minor errors may remain; the linked PDF is authoritative.
The Attorney General of Texas
JIM MATTOX
Attorney General
February 21, 1986
Honorable James W. Smith, Jr.
Frio County Attorney
P.O. Box V
Pearsall, Texas 78061
Opinion No. JM-430
Re: Whether a county departmental head may authorize a salary increase not approved by the commissioners court
Dear Mr. Smith:
You ask the following three questions about salary increases for county employees:
Can a departmental head in a county government which has no civil service system authorize a salary increase for an employee once the salary has been set by the adoption of the county's budget by the Commissioners Court?
If the answer to the first question is in the negative then would it make any difference if the Employee Policy Book (adopted by the Frio County Commissioners Court) gives the authority to a department head to promote employees in his department as long as the promotion is within the staffing pattern and budget limits approved by the Commissioners Court and in conjunction with this promotion there is an automatic salary increase?
Finally, neither the statutes nor any of the cases that I could find squarely addresses when the commissioners court is to set and fix compensation for the employees of county government. Is this done during the budgetary hearing process or at any time of the year?
Because Frio County is not under a civil service system, see generally V.T.C.S. art. 2372h-6; Attorney General Opinion H-1113 (1978), article 3912k, V.T.C.S., controls the setting of salaries for county employees paid from county funds.
Article 3912k provides, in section 1, as follows:
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. . . . [Several lines of the statutory quotation are illegible in the source OCR.] . . . such salaries be set lower than they exist at the effective date of this Act. (Emphasis added).
You ask about regular employees of the county rather than about elected county and precinct officials. Elected county officials are subject to certain provisions of article 3912k which do not apply to county employees. See V.T.C.S. art. 3912k, §§ 2, 6; Attorney General Opinions MW-366 (1981); H-11 (1973). Further, we note that article 3912k excepts entirely certain positions from its operation. See V.T.C.S. art. 3912k, § 7; Attorney General Opinion JM-49 (1983) (authority of district judge to increase salaries of assistants to the county auditor's office); see also Tex. Gov't Code § 41.101 et seq.; Attorney General Opinion JM-313 (1985). Subject to these qualifications, article 3912k directs that the amount of compensation paid to county employees shall be approved by the commissioners court. V.T.C.S. art. 3912k, § 1; see Renfro v. Shropshire, 566 S.W.2d 688 (Tex. Civ. App. - Eastland 1978, writ ref'd n.r.e.); Attorney General Opinions JM-192 (1984); H-11 (1973).
The court in Renfro v. Shropshire, however, stated that article 3912k must be considered together with article 3902. Article 3902, V.T.C.S., authorizes district, county, and precinct officers to apply to the commissioners court for authority to appoint necessary deputies, assistants, or clerks. Although article 3902 states that the commissioners court shall determine the number of new employees and the amount of their compensation, it prohibits the commissioners court from influencing the appointment of particular persons. Renfro v. Shropshire, 566 S.W.2d at 691-92; see also Tarrant County v. Smith, 81 S.W.2d 537 (Tex. Civ. App. - Fort Worth 1935, writ ref'd). Thus, with regard to county employees covered by article 3902, a distinction must be drawn between authorizing general salary increases and determining which individuals shall receive those increases. See Attorney General Opinion H-1113 (1978).
Your second question is whether a salary increase for a county employee is valid when it is an automatic part of a promotion which is within staffing and budget limits already approved by the commissioners court. If the staffing and budget limits which are approved by the commissioners court envision a promotion with a salary increase for county employees and authorize the particular department head to award that promotion, we believe that the salary increase may be deemed approved by the commissioners court. No additional approval is required.
Your final question involves the procedure necessary to fix compensation for county employees. Attorney General Opinion H-11 (1973) addressed whether salaries must be fixed at the regular budget hearing of the commissioners court. The opinion noted that article 3912k, section 2, which applies only to elected county and precinct officers, requires that their salaries be set during the regular budget hearing. The absence of a similar restriction regarding the fixing of compensation for nonelected county employees was deemed to indicate that such compensation could be set at times other than during the regular budget hearing. Although the opinion concluded that a commissioners court may amend its budget to authorize a salary increase for nonelected county employees, it emphasized that such an increase may not operate retroactively. See Tex. Const. art. III, § 53; Fausett v. King, 470 S.W.2d 770 (Tex. Civ. App. - El Paso 1971, no writ); Pierson v. Galveston County, 131 S.W.2d 27 (Tex. Civ. App. - Austin 1939, no writ).
SUMMARY
Subject to exceptions for certain positions, article 3912k, V.T.C.S., indicates that the amount of compensation paid to county employees must be approved by the county commissioners court. With regard to nonelected county employees, this requirement includes salary increases. If the staffing and budget limits which are already approved by the commissioners court envision a promotion with a salary increase for certain county positions and authorize the department head to award the promotion, the salary increase may be deemed approved by the commissioners court. Although the commissioners court may amend its budget at a time other than its regular budget hearing in order to authorize salary increases for nonelected county employees, such increases may not operate retroactively.
JIM MATTOX
Attorney General of Texas
JACK HIGHTOWER
First Assistant Attorney General
MARY KELLER
Executive Assistant Attorney General
ROBERT GRAY
Special Assistant Attorney General
RICK GILPIN
Chairman, Opinion Committee
Prepared by Jennifer Riggs
Assistant Attorney General
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