Who handles county employees' retirement payroll deductions, the county treasurer or the county auditor?

Texas AG Opinion JM-585: County Payroll Officer

Plain-English summary

JM-585 answered a narrow question about county government mechanics: when a county deducts retirement contributions from its employees' pay, which county officer is legally responsible for making those deductions, the treasurer or the auditor? The AG concluded it is the county treasurer. Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1986/jm0585.pdf

The retirement statutes in Title 110B, V.T.C.S., told each participating employer that its "treasurer or disbursing officer" must deduct member contributions and pay them to the retirement system. The AG read that language together with the statutes defining county offices. Because Texas law made the county treasurer the officer who disburses county money, and the auditor's role was oversight rather than handling funds, the treasurer was the proper disbursing officer for retirement deductions. Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1986/jm0585.pdf

The opinion limited itself to counties of 10,000 or more people that still had a county treasurer. It did not decide who performs the function in counties where the office of treasurer had been abolished. Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1986/jm0585.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

Which county officer made retirement payroll deductions under this opinion?

The county treasurer. JM-585 read Title 110B's reference to the "treasurer or disbursing officer" alongside the statutes on county offices and concluded the treasurer, as the officer who disburses county funds, was the one who deducted and transmitted member contributions. Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1986/jm0585.pdf

Why not the county auditor?

The AG pointed to article 1651, V.T.C.S., which gave the auditor a general oversight role over the books and records of county officers, not the job of receiving or paying out county money. Deducting and remitting contributions is a disbursing function, which the statutes assigned to the treasurer. Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1986/jm0585.pdf

Did this apply to every Texas county?

No. The opinion addressed counties of 10,000 or more inhabitants that still had a county treasurer. It expressly did not decide who handled the function in counties where the treasurer's office had been abolished. Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1986/jm0585.pdf

Did the opinion break new ground?

Not really. The AG noted the result was consistent with earlier opinions (V-1387 in 1952 and V-711 in 1948) that had already drawn the same line between the treasurer's handling of employee deductions and the auditor's checking-and-auditing role. Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1986/jm0585.pdf

Background and statutory framework

Title 110B, V.T.C.S., collected the statutes governing the state's public retirement systems, including the Employees Retirement System, the Teacher Retirement System, the Judicial Retirement System, the Texas County and District Retirement System, and the Texas Municipal Retirement System. Section 55.403(e) directed the "treasurer or disbursing officer" of each participating subdivision to make member deductions, transmit the payroll information, and pay the deductions to the retirement board. Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1986/jm0585.pdf

To identify which county officer that phrase pointed to, the AG turned to the constitutional and statutory framework for county offices. Article XVI, section 44, of the Texas Constitution directed the legislature to prescribe the duties of the county treasurer. Article 1709 and article 1709a made the treasurer the chief custodian of county finance, responsible for receiving, keeping, and disbursing county money. Article 1651 gave the county auditor general oversight of the books and records of county officers. Reading "disburse" in its ordinary sense of pay or expend, the AG concluded the deduction-and-remittance duty belonged to the disbursing officer, the treasurer. Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1986/jm0585.pdf

Citations and references

The opinion cited the following authorities. Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1986/jm0585.pdf

Constitution and statutes:

• Tex. Const. art. XVI, § 44
• V.T.C.S. Title 110B, §§ 25.402, 35.403, 55.403, 65.402, including § 55.403(e)
• V.T.C.S. art. 1709 (duties of the county treasurer)
• V.T.C.S. art. 1709a, § 4 (receipt, safekeeping, and disbursement of county funds)
• V.T.C.S. art. 1651 (duties of the county auditor)
• V.T.C.S. art. 1656a

Cases:

• Railroad Commission of Texas v. Miller, 434 S.W.2d 670 (Tex. 1968)
• Woodford v. United States, 77 F.2d 861 (8th Cir. 1935)
• Wall v. Close, 14 So.2d 19 (La. 1943)
• People v. Battin, 143 Cal. Rptr. 731 (Cal. Ct. App. 1978)
• Brown v. Honiss, 68 A. 150 (N.J. 1907)

Prior opinions:

• Attorney General Opinion V-711 (1948)
• Attorney General Opinion V-1387 (1952)
• Attorney General Opinion WW-1107 (1961)

Source

• Landing page: https://www.texasattorneygeneral.gov/opinions/jim-mattox/jm-0585
• Original PDF: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1986/jm0585.pdf

Original opinion text

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

December 12, 1986

Honorable Erwin W. Barton
Chairman
Human Services Committee
Texas House of Representatives
P. O. Box 2910
Austin, Texas 78769

Opinion No. JM-585

Re: Whether the county auditor or the county treasurer is the county payroll disbursing officer for purposes of Title 110B, V.T.C.S., governing public retirement systems

Dear Representative Barton:

Title 110B, V.T.C.S., contains those statutes governing the creation and operation of the Employees Retirement System of Texas, the Teacher Retirement System of Texas, the Judicial Retirement System of Texas, the Texas County and District Retirement System, and the Texas Municipal Retirement System. The various statutes governing the several systems provide that a payroll disbursing officer or employee for each employer collects member contributions by deducting such contributions from the compensation of each member that it employs. V.T.C.S. Title 110B, §§ 25.402, 35.403, 55.403, 65.402. You wish to know whether, in counties of 10,000 or more population, the county auditor or the county treasurer (in those counties which still have such officers) is the county payroll disbursing officer for purposes of section 55.403 of Title 110B, V.T.C.S. We conclude that the proper officer is the county treasurer. We do not address the issue as to who is the proper disbursing officer or employee in those counties in which the office of county treasurer has been abolished.

Section 55.403(e) of Title 110B, V.T.C.S., provides the following:

The treasurer or disbursing officer of each participating subdivision shall:

(1) make deductions from each member's compensation for contributions to the retirement system;

(2) transmit monthly, or at the time designated by the board of trustees, the payroll and other pertinent information prescribed by the board; and

(3) pay the deductions to the board of trustees at the board's home office. (Emphasis added).

We are required to construe section 55.403(e) in a way that

expresses only the will of the makers of the law, not forced nor strained, but simply such as the words of the law in their plain sense fairly sanction and will clearly sustain.

Railroad Commission of Texas v. Miller, 434 S.W.2d 670, 672 (Tex. 1968). The very terms of the statute itself reposes the responsibility for making employee payroll deductions in the treasurer, not the auditor; Texas law clearly makes the treasurer, not the auditor, the county disbursing officer.

Article XVI, section 44, of the Texas Constitution provides, inter alia, that the legislature shall prescribe the duties of the office of county treasurer. Article 1709, V.T.C.S., sets forth the duties of the county treasurer and provides in pertinent part that

[t]he County Treasurer, as chief custodian of county finance, shall receive all moneys belonging to the county from whatever source they may be derived; keep and account for the same in a designated depository or depositories; and pay and apply or disburse the same, in such manner as the Commissioners Court may require or direct, not inconsistent with constituted law. (Emphasis added).

Article 1709a, V.T.C.S., providing specifically for the receipt, safekeeping and disbursement of county funds, sets forth at section 4 the following in pertinent part:

From and after the effective date of this Act the County Treasurer of each county shall disburse all moneys belonging to the county, for whatever purpose they may be claimed, and shall pay and apply the same as required by law. No moneys shall be expended or withdrawn from the county treasury except by checks or warrants drawn on the county treasury, whether such moneys are in a county depository as required by law or not. (Emphasis added).

V.T.C.S. art. 1709a, § 4.

Article 1651, V.T.C.S., sets forth the duties of the county auditor and provides that

[t]he Auditor shall have a general oversight of all the books and records of all the officers of the county, district or state, who may be authorized or required by law to receive or collect any money, funds, fees, or other property for the use of, or belonging to, the county. . . .

See also V.T.C.S. arts. 1653, 1709a.

The word "disburse" generally denotes "pay" or "expend." Woodford v. United States, 77 F.2d 861, 865 (8th Cir. 1935); Wall v. Close, 14 So.2d 19, 36 (La. 1943); see also People v. Battin, 143 Cal. Rptr. 731 (Cal. Ct. App. 1978); Brown v. Honiss, 68 A. 150 (N.J. 1907). It is clear from an even cursory reading of section 55.403 of Title 110B, V.T.C.S., that the county treasurer is the proper officer to deduct member contributions because he is the officer whose responsibility it is to "disburse" county funds. This conclusion is consistent with earlier attorney general opinions that discuss the various responsibilities of the county treasurer and the county auditor.

In Attorney General Opinion V-1387 (1952), this office was asked whether a commissioners court could require a county auditor to handle payroll deductions, accounts, and reports regarding social security for county employees. The opinion held that

[u]nder the above authorities and articles [setting forth the duties of the county treasurer and the county auditor] we agree with you that it is the duty of the county treasurer to assess the amount of the contributions necessary from the various county employees, to collect this amount, and to transmit same to the state agency. We further agree that under article 1651, V.C.S., the county auditor is required to check, compare, and audit the social security services of the county treasurer, and to certify the results to the proper officials.

In Attorney General Opinion V-711 (1948), this office was asked whether the county auditor, pursuant to the duties imposed by article 1656a, V.T.C.S., had the authority to deduct employees' group insurance premiums from employees' salaries when so authorized by employees. Citing the above statute setting forth the duties of the county auditor, this office held that

[i]n view of the foregoing provision, neither the collection nor the deduction of the contributions from the salaries of the county employees constitutes any function of the County Auditor. . . . The collection and deduction should be performed by the proper county officer who issues the checks on the County Treasurer for the payment of the salaries of the employees included in the group insurance plan.

See also Attorney General Opinion WW-1107 (1961).

Accordingly, we conclude that the proper county payroll disbursing officer for purposes of Title 110B, V.T.C.S., is the county treasurer rather than the county auditor.

SUMMARY

In counties with a population of 10,000 inhabitants or more, the proper county payroll disbursing officer for purposes of Title 110B, V.T.C.S., is the county treasurer rather than the county auditor.

Very truly yours,

JIM MATTOX
Attorney General of Texas

JACK HIGHTOWER
First Assistant Attorney General

MARY KELLER
Executive Assistant Attorney General

RICK GILPIN
Chairman, Opinion Committee

Prepared by Jim Moellinger
Assistant Attorney General