Is a county sheriff's salary increase valid if the required public notice wasn't given first?

Plain-English summary

Sheryl Tavarez, the Coke County Auditor, asked the Attorney General what the correct sheriff's salary was for the 2014-2015 budget year after a tangle over a raise. As she described it, the commissioners court first set every elected official's salary on August 11, 2014 with no increases, and the sheriff did not file a salary grievance. The court later held a budget hearing where motions were made to give the sheriff and the deputies a 7% raise, and the budget was adopted with the raise in it. Only afterward did the auditor realize the public notice the law requires before raising an officer's salary had not been properly published. The court then published a notice for ten days and, on September 22, 2014, "re-adopted" the budget with the sheriff's raise.

The AG laid out the two sets of rules that controlled. Chapter 111 of the Local Government Code governs how a county prepares, hears, and finally approves its budget. Section 152.013 governs how a commissioners court sets elected officers' pay: it may set salaries only during the regular budget hearing and adoption proceedings (§ 152.013(a)), and any proposed increase must be published in a newspaper at least 10 days before the meeting (§ 152.013(b)). Once a budget is finally approved, the court may spend county funds only in strict compliance with it except in an emergency (§ 111.010(b)).

Reading those provisions together, the AG explained that a commissioners court that fails to publish proper notice has no legal mechanism to remedy the error after the budget has been finally adopted. The auditor reported that the approved 2014-2015 budget appeared to have been certified and filed with the county clerk on September 2, 2014. If final approval happened then, the September 22 vote to re-adopt the raise came outside the regular budget hearing and adoption process and was invalid. The original raise was also invalid because the required notice had not been given. On that basis, the AG concluded the sheriff's salary for 2014-2015 was the amount that had been in place during the prior fiscal year.

Currency note

This opinion was issued in 2015. 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

The county auditor who asked (as the opinion described it): The opinion described the sheriff's 2014-2015 salary as the prior year's amount, on the stated assumption that the budget was finally approved on September 2, 2014, before the required salary-increase notice was published.

The commissioners court (as the opinion described it): The opinion described a court that sets an officer's salary without first publishing the notice required by § 152.013(b) as having produced an invalid increase, and described a court that has finally approved its budget as having no legal mechanism to add a salary change afterward.

The sheriff whose raise was at issue (as the opinion described it): The opinion treated the 7% increase as ineffective and the sheriff's pay for the year as the prior year's figure. It also noted the sheriff had not filed a salary grievance when salaries were first set with no increases.

Other county officers and auditors watching the timing (as the opinion described it): The opinion described the salary-setting window as limited to the regular budget hearing and adoption proceedings, and pointed to § 111.008 and § 111.009 as the steps that accomplish final approval, including filing the budget with the county clerk.

Common questions

Can a Texas county raise the sheriff's salary if it forgot to publish the required notice?
The AG said no. A proposed salary increase must be published in a newspaper at least 10 days before the meeting under § 152.013(b), and failure to give that notice invalidates the increase.

Can the commissioners court fix the mistake by publishing the notice later and re-adopting the budget?
The AG explained it generally cannot once the budget is finally approved. A court that failed to publish proper notice has no legal mechanism to remedy the error after final adoption, so a later re-adoption falls outside the regular budget hearing and adoption process.

How do you know when a county budget is "finally approved"?
The AG pointed to sections 111.008 and 111.009 of the Local Government Code, which cover taking action on the budget and filing it with the county clerk. In this matter the approved budget appeared to have been certified and filed with the clerk on September 2, 2014.

So what was the sheriff's salary for that year?
The AG concluded that, on the facts given, the sheriff's salary for 2014-2015 remained the amount that was in place during the prior fiscal year.

Did the opinion also decide the deputies' raises?
No. The AG noted the auditor did not ask about the deputies' salary increase, so the opinion did not address it.

Background and statutory framework

Setting an elected county officer's pay runs through two parts of the Local Government Code. Chapter 111, subchapter A, governs budget preparation in counties with a population of 225,000 or less (Tex. Loc. Gov't Code Ann. § 111.001). The county judge prepares the proposed budget (§ 111.003(a)); it is filed with the county clerk and opened to public inspection (§ 111.006(a)-(b)); the commissioners court holds a public hearing (§ 111.007(a)) after notifying the public of the date (§ 111.007(c)) and publishing notice in a newspaper between 10 and 30 days before the hearing (§ 111.0075(a)-(b)); the court takes action on the budget at the conclusion of the hearing and may make changes it considers warranted (§ 111.008(a)-(b)); and on final approval the budget is filed with the county clerk and, for counties with a website, posted online (§ 111.009(a)(1)-(2)). After final approval, the court may spend county funds only in strict compliance with the budget except in an emergency (§ 111.010(b)-(c)).

Sections 152.013, 152.014, and 152.016 add the rules specific to officer compensation. The commissioners court sets the salaries of elected county and precinct officials at a regular meeting during the regular budget hearing and adoption proceedings (§ 152.013(a)); any proposed increase, and the specific amount, must be published in a newspaper at least 10 days before the meeting (§ 152.013(b)); and the court must notify each officer of the salary to be included in the budget before filing it with the clerk (§ 152.013(c)). An aggrieved officer may seek a hearing before a salary grievance committee before the budget is approved (§ 152.016(a); § 152.014). The AG read prior opinions to hold that, because salaries may be changed only during the regular budget hearing and adoption proceedings, a court that failed to publish proper notice has no legal mechanism to fix the error after final adoption (Tex. Att'y Gen. Op. No. GA-0162 (2004); see also Tex. Att'y Gen. Op. No. GA-0929 (2012)). Applying those rules, the AG concluded that if Coke County finally approved its budget on September 2, 2014 before the notice was published, both the original raise and the later re-adoption were invalid, leaving the sheriff's 2014-2015 salary at the prior year's amount.

Citations

Statutory provisions:

• Tex. Loc. Gov't Code Ann. § 111.001 (budget preparation; counties of 225,000 or less)
• Tex. Loc. Gov't Code Ann. § 111.003(a) (county judge prepares the budget)
• Tex. Loc. Gov't Code Ann. § 111.006(a)-(b) (filing and public inspection)
• Tex. Loc. Gov't Code Ann. § 111.007(a), (c) (public hearing and notice of the date)
• Tex. Loc. Gov't Code Ann. § 111.0075(a)-(b) (newspaper notice 10 to 30 days before the hearing)
• Tex. Loc. Gov't Code Ann. § 111.008(a)-(b) (action on the budget)
• Tex. Loc. Gov't Code Ann. § 111.009(a)(1)-(2) (final approval; filing and posting)
• Tex. Loc. Gov't Code Ann. § 111.010(b)-(c) (spending in strict compliance; emergency exception)
• Tex. Loc. Gov't Code Ann. § 152.013(a) (salaries set during the regular budget hearing)
• Tex. Loc. Gov't Code Ann. § 152.013(b) (newspaper notice of proposed increase)
• Tex. Loc. Gov't Code Ann. § 152.013(c) (individual notice to each officer)
• Tex. Loc. Gov't Code Ann. § 152.014; § 152.016(a) (salary grievance committee)

Prior Attorney General opinions referenced:

• Tex. Att'y Gen. Op. No. GA-0162 (2004)
• Tex. Att'y Gen. Op. No. GA-0929 (2012)
• Tex. Att'y Gen. Op. Nos. JM-839 (1988), JM-326 (1985)
• Tex. Att'y Gen. LO-95-018

Source

• Landing page: https://www.texasattorneygeneral.gov/opinions/ken-paxton/kp-0012
• Original PDF: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/2015/kp0012.pdf

Original opinion text

Best-effort transcription from the official PDF. Minor extraction artifacts were corrected; the linked PDF is authoritative.

KEN PAXTON
ATTORNEY GENERAL OF TEXAS

March 31, 2015

Ms. Sheryl Tavarez Opinion No. KP-0012
Coke County Auditor
13 East 7th Street Re: Validity of a salary increase for the sheriff
Robert Lee, Texas 76945 that exceeded the amount listed in the initial
public notice required by section 152.013 of the
Local Government Code (RQ-1226-GA)

Dear Ms. Tavarez:

You ask about the validity of a recent salary increase for the Coke County Sheriff. [1] You explain that after the commissioners court attempted to adopt a salary increase in the budget for the sheriff, you determined that the statutory procedure for increasing the sheriff's salary had not been followed. See Request Letter at 1. You explain that the commissioners court subsequently attempted to correct the procedural defect and then readopted the budget with the salary increase for the sheriff. See id. at 2. You have received conflicting advice about whether the matter was properly corrected, and thus you request an opinion as to "the correct amount" of the sheriff's salary for the 2014-2015 budget year. Id.

The salary-setting process for county officers involves two related sets of procedural requirements in the Local Government Code that are relevant here. First, the general budget preparation provisions of chapter 111, subchapter A, direct the county judge to "prepare a budget to cover all proposed expenditures of the county government for the succeeding fiscal year." [2] TEX. LOC. GOV'T CODE ANN. § 111.003(a) (West 2008). The proposed budget is filed with the county clerk and made available for public inspection. See id. § 111.006(a)-(b). Afterward, the "commissioners court shall hold a public hearing on the proposed budget" in the time specified by statute. Id. § 111.007(a). The commissioners court must notify the public of the date of the hearing on the proposed budget. See id. § 111.007(c). The court must additionally publish a notice of the public hearing in a newspaper of general circulation between 10 and 30 days before the hearing. See id. § 111.0075(a)-(b). "At the conclusion of the public hearing, the commissioners court shall take action on the proposed budget," which may include "mak[ing] any changes in the proposed budget that it considers warranted by the law and required by the interest of the taxpayers." Id. § 111.008(a)-(b) (West Supp. 2014). [3] "On final approval of the budget by the commissioners court," the budget is filed with the county clerk and, if the county maintains an Internet website, posted online. Id. § 111.009(a)(1)-(2).

The second set of requirements, relating specifically to the setting of officers' compensation, directs the commissioners court to set the salaries of elected county and precinct officials "at a regular meeting of the court during the regular budget hearing and adoption proceedings." Id. § 152.013(a) (West 2008). Any salaries that are proposed to be increased, and the specific amount of the proposed increase, must be published in a notice in a newspaper of general circulation at least 10 days before the date of the meeting. See id. § 152.013(b). Before filing the annual budget with the county clerk, the commissioners court must additionally notify "each elected county and precinct officer of the officer's salary and personal expenses to be included in the budget." Id. § 152.013(c). A county officer who is aggrieved by the salary set by the commissioners court may request a hearing before a salary grievance committee "before the approval of the county's annual budget." Id. § 152.016(a); see also id. § 152.014 (salary grievance committee).

You inform us that on August 11, 2014, the commissioners court set the salaries of all Coke County elected officials with no salary increases and that the sheriff did not request a hearing from the grievance committee. See Request Letter at 1. You state that the commissioners court subsequently held a public hearing to discuss the budget and tax rates and that "motions were made to give the Sheriff and the Deputies a 7% salary increase." Id. You tell us that at the conclusion of the hearing, the budget was adopted with the salary increases in place. See id. After the budget had already been adopted, you explain your realization that the public notice of salary increase required by subsection 152.013(b) "had not been properly given." Request Letter at 1; see also TEX. LOC. GOV'T CODE ANN. § 152.013(b) (West 2008). You tell us that a notice of salary increase was then published in the newspaper for ten days. [4] Request Letter at 2. Subsequently, the commissioners court had another public hearing on September 22, 2014, at the conclusion of which you tell us the court "re-adopted" the 2014-2015 general budget with the salary increase for the sheriff in place. Id.

"After final approval of the budget, the commissioners court may spend county funds only in strict compliance with the budget, except in an emergency." TEX. LOC. GOV'T CODE ANN. § 111.010(b) (West 2008) (emphasis added); see also id. § 111.010(c) (providing that an "emergency" requires "a case of grave public necessity to meet an unusual and unforeseen condition that could not have been included in the original budget through the use of reasonably diligent thought and attention"). "Because a commissioners court may not adopt [officers'] salaries at a meeting outside of the 'regular annual budget hearing and adoption proceedings,' a commissioners court that failed to publish proper notice has 'no legal mechanism' by which to remedy an error after the budget has been finally adopted." Tex. Att'y Gen. Op. No. GA-0162 (2004) at 2 (citation omitted) (addressing an elected county official's salary increase under similar circumstances); see also Tex. Att'y Gen. Op. Nos. JM-839 (1988) at 5-6, JM-326 (1985) at 2-3; Tex. Att'y Gen. LO-95-018, at 2 (all concluding that the plain language of subsection 152.013(a) of the Local Government Code (formerly article 3912k) restricts a county commissioners court's ability to change elected county officers' salaries to the regular, annual budget hearing and adoption proceedings only, and does not permit changes at any other time). Answering your question therefore requires a determination of when the budget was finally approved.

Sections 111.008 and 111.009 of the Local Government Code outline the procedures for final approval of a budget, including filing it with the county clerk. See TEX. LOC. GOV'T CODE ANN. §§ 111.008-.009 (West Supp. 2014). Although you explain that the commissioners adopted a budget at the initial budget hearing, you do not tell us whether the commissioners court performed the other steps necessary to accomplish final approval at that time. The 2014-2015 approved budget posted on the Coke County website, however, appears to have been certified and filed with the county clerk on September 2, 2014. If the final approval of the budget occurred on September 2, 2014, then any subsequent vote to readopt the salary increase for the sheriff would be invalid because it would have occurred outside the "regular budget hearing and adoption" process. Id. § 152.013(a) (West 2008). In addition, the original salary increase was also invalid because proper notice of the increase in salary had not been given pursuant to subsection 152.013(b) of the Local Government Code. See id. § 152.013(b). Based on this information, and because the salaries of elected county officers may be set only "during the regular budget hearing and adoption proceedings," the salary of the sheriff for 2014-2015 is the amount that was in place during the prior fiscal year. [5] Id. § 152.013(a).

SUMMARY

Subsection 152.013(b) of the Local Government Code requires a commissioners court to provide public notice of a proposed budget increase to a sheriff's salary prior to setting the sheriff's salary, and failure to do so invalidates any increase. Subsection 111.010(b) of the Local Government Code prohibits the commissioners court from making changes to officers' salaries after the budget has been finally approved. If the Coke County Commissioners Court finally approved its budget prior to providing the required notice of the sheriff's proposed salary increase, the sheriff's salary for 2014-2015 must remain at the prior year's amount.

Very truly yours,

KEN PAXTON
Attorney General of Texas

CHARLES E. ROY
First Assistant Attorney General

BRANTLEY STARR
Deputy Attorney General for Legal Counsel

VIRGINIA K. HOELSCHER
Chair, Opinion Committee

BECKY P. CASARES
Assistant Attorney General, Opinion Committee

[1] See Letter from Ms. Sheryl Tavarez, Coke Cnty. Auditor, to Honorable Greg Abbott, Tex. Att'y Gen. at 1 (Oct. 6, 2014), https://www.texasattorneygeneral.gov/opinion/requests-for-opinion-rqs ("Request Letter").

[2] Subchapter A of chapter 111 governs budget preparation in counties with a population of 225,000 or less. See TEX. LOC. GOV'T CODE ANN. § 111.001 (West 2008). The population of Coke County is 3,320. See U.S. Census Bureau, U.S. Dep't of Commerce, 2010 Census of Population, http://quickfacts.census.gov/qfd/.

[3] This office has previously construed the requirement of taking "action" in subsection 111.008(a) to include scheduling a subsequent hearing. Tex. Att'y Gen. Op. No. GA-0929 (2012) at 3 n.5.

[4] The facts provided do not indicate whether the commissioners court provided the individual notice to officers required by subsection 152.013(c) of the Local Government Code. See TEX. LOC. GOV'T CODE ANN. § 152.013(c) (West 2008).

[5] You do not ask about the validity of a salary increase for the deputy sheriffs. Consequently, we do not address it.