Can a Texas commissioners court automatically cut a county position's salary when the employee leaves?

Plain-English summary

Webb County tried a budgeting shortcut and the county attorney wanted to know if it was legal. After adopting its annual budget, the commissioners court passed "standing orders" telling the county administrative services department to automatically cut the salary for any position the moment it became vacant, dropping it to a much lower starting point and moving the leftover money to another line item, all without the commissioners court having to act again. The flashpoint was a court coordinator job: when the coordinator for the 406th District Court retired, the district judge hired a replacement and asked to keep the budgeted salary, but the department refused under the automatic-reduction policy. The AG was asked two things: can a commissioners court adopt that kind of automatic salary-cut order at all, and can it apply to a court coordinator.

On the first question, the AG started from the rule that a commissioners court has broad discretion over the county budget but, after the budget is adopted, may spend "only in strict compliance" with it, with limited exceptions in chapter 111 of the Local Government Code. One exception is an emergency expenditure, which did not fit an automatic across-the-board policy. The other is amending the budget by transferring money from one budgeted item to another, and courts have upheld salary reductions done that way. So the AG concluded chapter 111 does not, as a matter of law, prohibit an order that automatically transfers funds when a position is vacated and refilled. The AG added several caveats: whether the policy can be applied to a particular position depends on the circumstances and on any law specifically governing that position's pay, a commissioners court cannot reduce a salary in a way that prevents an elected officer from performing the duties of office, and it cannot delegate its discretionary budget judgment except as the law allows.

On the second question, court coordinators are different because their pay runs through section 74.104 of the Government Code. That statute takes two steps: the judge determines reasonable compensation, and the commissioners court approves it. Neither side gets to set the salary alone. The AG concluded that an automatic standing-order cut, triggered when the position turns over, would override the judge's role and conflict with section 74.104(a). So the commissioners court cannot reduce a court coordinator's salary by automatic operation of a standing policy without the judge who selected the coordinator first determining reasonable compensation.

Currency note

This opinion was issued in 2015. 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. Chapter 111 of the Local Government Code and section 74.104 of the Government Code may have been amended since 2015, so confirm the current statutes before relying on these specifics.

What the opinion meant for those who asked

Webb County and county commissioners courts (as the opinion described it): The opinion described chapter 111 as not prohibiting, as a matter of law, a standing order that automatically transfers funds to reduce a vacated-and-refilled position's salary, while describing implementation for any specific position as depending on the circumstances and on any law governing that position's pay.

Elected officials and their staff (as the opinion described it): The opinion described a commissioners court as unable to use its budget authority to reduce a salary in a way that prevents an elected officer from performing the duties of office, and noted that specific statutes can give particular officers more or less authority relative to the commissioners court.

District judges and court coordinators (as the opinion described it): The opinion described court coordinator compensation under section 74.104 as requiring the judge's determination of reasonable compensation plus the commissioners court's approval, so it concluded an automatic standing-order cut without the judge's determination is not permitted.

Common questions

Can a Texas commissioners court automatically cut a position's salary when it becomes vacant?
The AG concluded that chapter 111 of the Local Government Code does not, as a matter of law, prohibit a standing order that automatically transfers budgeted funds to reduce a position's salary when the position is vacated and filled by a new employee.

Does that mean the policy is always valid?
No. The AG said whether the policy can be applied to a specific position depends on the circumstances and on any other law that specifically governs that position's compensation.

Are there limits when the position belongs to an elected officer?
Yes. The AG noted a commissioners court cannot reduce a salary in a way that prevents an elected officer from performing the duties of office, and that statutes specific to certain officers may change the result.

Can the policy apply to a court coordinator?
No. The AG concluded that section 74.104 of the Government Code requires the judge to determine reasonable compensation, subject to commissioners court approval, so a court coordinator's salary cannot be reduced by automatic standing policy without the judge's determination.

Can a commissioners court hand off these budget decisions to a department?
The AG noted a commissioners court may delegate ministerial or administrative tasks but cannot delegate its discretionary budget judgment except as authorized by law.

Background and statutory framework

A commissioners court has only the powers granted by the Constitution or the Legislature plus those implied to carry out its duties, but it has broad discretion in managing county finances (City of San Antonio v. City of Boerne, 111 S.W.3d 22, 28 (Tex. 2003); Griffin v. Birkman, 266 S.W.3d 189, 194 (Tex. App.-Austin 2008, pet. denied)). It generally sets county employee salaries (Tex. Loc. Gov't Code § 152.011) through the annual budget under chapter 111, and after adoption may spend only in strict compliance with the budget except as chapter 111 allows (Tex. Loc. Gov't Code §§ 111.010, 111.041, 111.070). Chapter 111's exceptions are emergency expenditures and transfers between budgeted items, and courts have upheld salary reductions made by transfer (Gattis v. Duty, 349 S.W.3d 193, 207 (Tex. App.-Austin 2011, no pet.)). A commissioners court may not, however, delegate its discretionary budget authority except as authorized (Guerra v. Rodriguez, 239 S.W.2d 915, 920 (Tex. Civ. App.-San Antonio 1951, no writ)), and certain officers' and employees' pay is governed by specific statutes (Tex. Gov't Code §§ 41.106, 52.051; Tex. Loc. Gov't Code § 152.013).

Court coordinator compensation is set under section 74.104 of the Government Code, which requires the judge to determine reasonable compensation subject to the commissioners court's approval (Tex. Gov't Code § 74.104). The AG read that as a collaborative process giving neither side unilateral authority, so an automatic standing-order reduction triggered on turnover would infringe the judge's role and is not permitted.

Citations

Statutory provisions:

• Tex. Loc. Gov't Code § 152.011 (commissioners court sets county employee salaries)
• Tex. Loc. Gov't Code § 152.013 (compensation of elected county officials)
• Tex. Loc. Gov't Code § 111.010 (subchapter A budget; strict-compliance spending and amendment exceptions)
• Tex. Loc. Gov't Code § 111.041 (subchapter B budget; strict-compliance spending and amendment exceptions)
• Tex. Loc. Gov't Code § 111.070 (subchapter C budget; amendment and delegation provisions)
• Tex. Gov't Code § 41.106 (staff of prosecuting attorney)
• Tex. Gov't Code § 52.051 (district court reporter)
• Tex. Gov't Code § 74.104 (court coordinator compensation; judge determines, commissioners court approves)

Cases:

• City of San Antonio v. City of Boerne, 111 S.W.3d 22, 28 (Tex. 2003)
• Griffin v. Birkman, 266 S.W.3d 189, 194 (Tex. App.-Austin 2008, pet. denied)
• Gattis v. Duty, 349 S.W.3d 193, 207 (Tex. App.-Austin 2011, no pet.)
• Guerra v. Rodriguez, 239 S.W.2d 915, 920 (Tex. Civ. App.-San Antonio 1951, no writ)

Source

• Landing page: https://www.texasattorneygeneral.gov/opinions/ken-paxton/kp-0052
• Original PDF: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/2015/kp0052.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

December 21, 2015

The Honorable Marco A. Montemayor Opinion No. KP-0052
Webb County Attorney
1110 Washington Street, Suite 301 Re: Authority of a commissioners court,
Laredo, Texas 78040 after adoption of the budget, to adopt a
standing budget policy that automatically
reduces the salary line item of an employee of
an elected official upon the employee's
departure from the position (RQ-0033-KP)

Dear Mr. Montemayor:

You ask about a commissioners court's authority, after adopting its annual budget, to adopt a standing budget policy that automatically reduces the salary line item for a position when an employee departs from the position. [1] You state that the Webb County Commissioners Court adopted its 2014-2015 fiscal year budget on September 22, 2014, under subchapter B of the Local Government Code. Request Letter at 2-3. You further state that in November 2014, the commissioners court adopted "standing orders" or budget policy "requiring that during the fiscal year, the county administrative services department [the "Department"] will immediately reduce the salary, as directed by [the county's adopted policy], upon the vacancy of any county employee slot, regardless of department or elected office." Id. at 3. You explain that the "policy requires all salaries of vacated slots ... to be reduced to an original starting point which is drastically lower than the originally budgeted, approved and adopted salary." Id. You further explain that a reduction pursuant to the policy requires no action by the commissioners court and is executed according to a predetermined line-item transfer of the excess to another line item. Id. at 4. You inform us that, after the court coordinator for the 406th District Court retired during the year, the district judge for the court hired a new court coordinator and requested that compensation for the position continue at the salary level budgeted in September 2014. Id. at 3. You state that the Department refused the compensation request due to the standing-orders policy that would require a reduction in salary for a position that has been vacated and filled by a new employee. Id. You further state, however, that the commissioners court has agreed to pay the court coordinator for the remainder of the fiscal year the amount budgeted in September 2014. Id.

While your questions contain multifarious sub-issues, in essence you ask two questions. The first is whether a commissioners court is authorized to adopt standing orders to reduce a position's salary when the position has been vacated and filled by a new employee, without further action by the commissioners court. The second question is whether such orders may be implemented with respect to a court coordinator.

A commissioners court has "only those powers expressly given by either the Texas Constitution or the Legislature" and "the implied authority to exercise the power necessary to accomplish its assigned duty." City of San Antonio v. City of Boerne, 111 S.W.3d 22, 28 (Tex. 2003). But a commissioners court's duty to manage a county's financial affairs "carries with it broad discretion in making budgetary decisions." Griffin v. Birkman, 266 S.W.3d 189, 194 (Tex. App.-Austin 2008, pet. denied). A commissioners court has general authority to set the salaries of most county employees. TEX. LOC. GOV'T CODE § 152.011. Salary levels are among the fiscal matters considered during the preparation of the county's annual budget under one of three subchapters in chapter 111 of the Local Government Code that are applicable to particular counties. Id. §§ 111.001-.014 (subchapter A, budget preparation in counties with a population of 225,000 or less), .031-.045 (subchapter B, budget preparation in counties with a population of more than 225,000), .061-.075 (subchapter C, alternative method of budget preparation in counties with a population of more than 125,000). After final adoption of the county's budget, the commissioners court must "spend county funds only in strict compliance with the budget," with limited exceptions. Id. §§ 111.010(b), .041(b), .070(a). Thus, once a salary has been approved and adopted in the final budget, it cannot be reduced except as permitted under chapter 111. See Tex. Att'y Gen. Op. No. JC-0131 (1999) at 3 (stating "once the salaries of county officers and employees are set, the salaries may not be reduced, outside of the regular budget adoption and amendment process").

Chapter 111 provides two exceptions that allow a commissioners court to amend a final budget. First, the final budget may be amended for an emergency expenditure, but only in "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." TEX. LOC. GOV'T CODE §§ 111.010(c), .041(b), .070(b). Because, as you describe it, the standing order to reduce a salary is automatic without regard to particular circumstances, it is not authorized under the emergency exception. Second, a commissioners court may amend the budget outside of an emergency by transferring an amount budgeted for one item to another budgeted item. Id. §§ 111.010(d), .041(c), .070(c)(1). In particular circumstances, courts have upheld the reduction of a salary by transfer from one budgeted item to another. See Gattis v. Duty, 349 S.W.3d 193, 207 (Tex. App.-Austin 2011, no pet.); Griffin, 266 S.W.3d at 201-02. We are not aware of any provision in chapter 111 that prohibits as a matter of law the adoption of an order that automatically transfers funds budgeted for a position when the position has been vacated and filled by a new employee. [2] But whether a commissioners court may transfer funds budgeted for the salary of a specific employee consistently with chapter 111 and other applicable law depends on the particular circumstances. For example, a commissioners court may not exercise its budgetary authority over salaries to transfer funds in a manner that prevents an elected officer from performing the duties of office. Tex. Att'y Gen. Op. No. GA-0037 (2003) at 5.

More importantly, the commissioners court's authority to reduce the salary of a particular employee may be limited by other law. The compensation of several officers and employees is governed by other statutes specifically applicable to the officer or employee. See, e.g., TEX. GOV'T CODE §§ 41.106 (staff of prosecuting attorney), 52.051 (district court reporter); TEX. LOC. GOV'T CODE § 152.013(a) (elected county officials). Thus, while a commissioners court may have general authority to adopt standing orders to reduce compensation for a position that has been vacated and filled by a new employee, whether the policy may be implemented with respect to a particular position depends on whether other law governs the compensation for the position. As this office has previously noted, "[s]tatutes specifically applicable to a particular county officer may provide the officer with more or less authority, relative to the commissioners court, and may lead to a different result." Tex. Att'y Gen. Op. No. GA-0037 (2003) at 1 (determining that the commissioners court did not have the authority to reduce compensation of an elected county official's employee under particular circumstances).

The second question concerns the compensation of court coordinators under section 74.104 of the Government Code. Request Letter at 2. The statute provides:

(a) The judges shall determine reasonable compensation for the court coordinators, subject to approval of the commissioners court.

(b) Upon approval by the commissioners court of the position and compensation, the commissioners court of the county shall provide the necessary funding through the county's budget process. County funds may be supplemented in whole or part through public or private grants.

TEX. GOV'T CODE § 74.104. Under section 74.104, it takes two actions to establish a court reporter's compensation: the judge must determine reasonable compensation and the commissioners court must approve it. Id. The statute does not authorize a commissioners court to unilaterally set the court coordinator's salary without the judge's determination of reasonable compensation. As this office observed about a similar statute, section 74.104 appears designed to require the judge and the commissioners court to establish a court coordinator's compensation by collaboration, giving neither final authority to set the salary. See Tex. Att'y Gen. Op. No. GA-0952 (2012) at 2 (construing the statutory authority of the county judge and commissioners court to establish the salary of the Van Zandt County Court at Law court reporter). A standing order that automatically reduces the court coordinator's salary upon the happening of a contingency infringes on the judge's authority to determine reasonable compensation in contravention of subsection 74.104(a). Accordingly, section 74.104 of the Government Code does not permit a commissioners court to reduce a court coordinator's salary by automatic operation of standing county policy without a determination of reasonable compensation by the judge who selected the court coordinator.

SUMMARY

Chapter 111 of the Local Government Code does not prohibit as a matter of law the adoption of an order that automatically transfers funds to reduce compensation for a position when the position has been vacated and filled by a new employee. Whether a commissioners court may implement such an order with respect to a specific position depends on the particular circumstances, including any law that specifically governs compensation for the position.

Section 74.104 of the Government Code does not permit a commissioners court to reduce a court coordinator's salary by automatic operation of standing commissioners court orders without a determination of reasonable compensation by the judge who selected the court coordinator.

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

WILLIAM A. HILL
Assistant Attorney General, Opinion Committee

[1] See Letter from Honorable Marco A. Montemayor, Webb Cty. Att'y, to Honorable Ken Paxton, Tex. Att'y Gen. at 1 (July 15, 2015), https://www.texasattorneygeneral.gov/opinion/requests-for-opinion-rqs ("Request Letter").

[2] A commissioners court may not delegate its powers requiring the exercise of judgment and discretion absent statutory authority. Guerra v. Rodriguez, 239 S.W.2d 915, 920 (Tex. Civ. App.-San Antonio 1951, no writ). Accordingly, a commissioners court may not delegate its discretionary authority to transfer funds from one item to another except as authorized by law. See Tex. Att'y Gen. Op. No. GA-0154 (2004) at 4. But see TEX. LOC. GOV'T CODE § 111.070(c)(2) (authorizing a commissioners court in a county operating under subchapter C, to designate another officer or employee to "amend the budget by transferring amounts budgeted for certain items to other budgeted items"). A commissioners court may delegate ministerial or administrative tasks necessary to carry out its budgetary responsibilities, provided that it does not delegate its discretionary decision-making authority. See Tex. Att'y Gen. Op. No. GA-0839 (2011) at 2-3.