Can a Texas county count an official's prior employee service toward longevity pay?

Plain-English summary

The Houston County Attorney asked the AG whether time someone served as a county employee can count toward their county longevity pay once that person becomes an elected officer. The county had adopted an employee handbook in 2002 covering all employees and public officials, amended it in 2008 to add a longevity policy effective October 1, 2008, and amended it again in August 2016 to codify the ongoing practice of paying longevity to elected officials. Six current elected officials had been county employees before their election, and all had received longevity pay each year since December 2008. After AG Opinion KP-0060, the county worried whether crediting those officials' prior employee years amounted to forbidden retroactive pay.

The constitutional concern is article III, section 53, which forbids paying "any extra compensation" to a public officer after the service has already been rendered. The AG has long read that provision to bar retroactively awarding compensation, because the worry is using public funds to pay someone extra for work already done. A policy operates prospectively when a benefit becomes a term of employment and employees receive it only for work performed after the benefit is established.

The AG explained that longevity pay is not really payment for past service. It is payment for current service that recognizes the added value an experienced employee brings because of years of accumulated knowledge and experience, drawing on a long-standing understanding of how longevity pay works. Earlier AG opinions, including one from a prior administration, concluded that a commissioners court may adopt a longevity policy that includes county officers and that bases longevity on total years of service, counting service performed before the policy's adoption, without violating article III, section 53, so long as the pay itself operates prospectively. Applying that, the AG concluded a county's longevity policy for officials may include an individual's prior service as a county employee, provided the longevity pay is earned after the policy's adoption. To the extent Houston County's policy became a benefit when adopted in 2008, a court would likely treat it as prospectively effective from that date, so longevity pay earned afterward comports with the constitution.

Currency note

This opinion was issued in 2017. 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.

What the opinion meant for those who asked

The requesting county attorney (as the opinion described it): The opinion answered that a county's longevity pay policy for county officials may include the prior service of the individual as a county employee, provided the longevity pay is earned after the adoption of the longevity policy, so crediting prior employee years is not necessarily forbidden retroactive pay.

County commissioners courts (as the opinion described them): The opinion treated the commissioners court as the body that sets compensation and allowances for county officers and employees and recognized it may adopt a longevity policy covering county officers on a prospective basis.

Affected county officials (as the opinion described them): The opinion explained that longevity pay earned after a policy's effective date, even if the formula counts years worked as an employee before election, recognizes current service and does not run afoul of the constitution's extra-compensation bar.

Common questions

Did crediting an official's old employee years count as illegal retroactive pay?
No, the opinion concluded, as long as the longevity pay is earned after the policy was adopted. The formula may count prior employee service without violating article III, section 53.

Why isn't longevity pay considered pay for past work?
The opinion explained that longevity pay is payment for current service that recognizes the added value of an experienced worker's accumulated knowledge, not a payment for services already rendered.

What makes a longevity policy "prospective"?
The opinion described a policy as prospective when the benefit becomes a term of employment and the employee receives it only for work performed after the benefit is established. Houston County's 2008 policy would likely be treated as prospectively effective from that date.

Who decides whether a county adopts longevity pay for officials?
The opinion noted the commissioners court sets compensation and allowances for county officers and employees paid from county funds, and that compensation can include longevity pay.

Background and statutory framework

Texas Constitution article III, section 53 forbids paying any extra compensation, fee, or allowance to a public officer, agent, servant, or contractor after service has been rendered or a contract performed (Tex. Const. art. III, § 53). The AG consistently reads this to bar retroactively awarding compensation, the concern being that public funds not be used to pay an individual extra for services already rendered (Tex. Att'y Gen. Op. Nos. KP-0060 (2016), JC-0376 (2001), JC-0370 (2001), JC-0026 (1999)). A policy operates prospectively when a benefit becomes a term of employment and is received only for work performed after the benefit is established (Tex. Att'y Gen. Op. No. DM-129 (1992)).

A county commissioners court sets compensation and allowances for county and precinct officers and employees paid wholly from county funds, and that compensation can include longevity pay (Tex. Loc. Gov't Code § 152.011; Tex. Att'y Gen. LO-96-007). The AG explained that longevity pay is not payment for past service but payment for current service recognizing an employee's enhanced value from years of experience (United States v. Alger, 151 U.S. 362 (1894)). Prior opinions, including one from a former administration, determined a commissioners court could adopt a longevity policy that includes county officers and bases pay on total years of service, counting service before the policy's adoption, without violating article III, section 53, so long as the pay operates prospectively (Tex. Att'y Gen. Op. Nos. KP-0060 (2016), JC-0026 (1999), JC-0123 (1999); Tex. Att'y Gen. LO-96-007). The AG noted a commissioners court is not authorized to grant back pay absent a pre-existing policy permitting it, and that bonuses are permissible if the plan was approved before the work was performed (Tex. Att'y Gen. Op. Nos. H-402 (1974), GA-0492 (2006)).

Citations

Constitutional and statutory provisions:

• Tex. Const. art. III, § 53
• Tex. Loc. Gov't Code § 152.011

Texas Attorney General opinions:

• Tex. Att'y Gen. Op. No. KP-0060 (2016)
• Tex. Att'y Gen. Op. No. JC-0376 (2001)
• Tex. Att'y Gen. Op. No. JC-0370 (2001)
• Tex. Att'y Gen. Op. No. JC-0123 (1999)
• Tex. Att'y Gen. Op. No. JC-0026 (1999)
• Tex. Att'y Gen. Op. No. GA-0492 (2006)
• Tex. Att'y Gen. Op. No. DM-129 (1992)
• Tex. Att'y Gen. Op. No. H-402 (1974)
• Tex. Att'y Gen. LO-96-007

Cases:

• United States v. Alger, 151 U.S. 362 (1894)

Source

• Landing page: https://www.texasattorneygeneral.gov/opinions/ken-paxton/kp-0135
• Original PDF: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/2017/kp0135.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 8, 2017

The Honorable Daphne Session Opinion No. KP-0135
Houston County Attorney
401 East Houston Avenue, 2nd Floor Re: Whether time spent as a county
Crockett, Texas 75835 employee may be considered in determining
county longevity pay when the employee
becomes an elected officer (RQ-0127-KP)

Dear Ms. Session:

    You ask whether time spent as a county employee may be considered in determining county longevity pay when the employee becomes an elected officer. [1] You tell us that Houston County (the "County") adopted an employee handbook in 2002 that is applicable to all employees and public officials. See Request Letter at 1. You also tell us that the county commissioners court amended the handbook in 2008 to adopt a longevity policy, effective October 1, 2008. See id. You state that the longevity pay policy applies to "employees, those appointed by Commissioners Court, and elected officials." Id. at 2. You also state that the policy was again amended on August 9, 2016, to "codify the ongoing practice of paying longevity pay to elected officials." Id. You inform us that there are currently six elected county officials who had been county employees prior to being elected to public office. See id. (identifying the number of years six county officeholders were county employees prior to their election). You inform us further that each of the elected officials began receiving longevity pay in December of 2008 and each year thereafter without any interruption in that longevity pay. See id.

    After the issuance of Attorney General Opinion KP-0060, you are concerned whether the "longevity pay for elected officials who were formerly county employees ... would constitute retroactive pay." Id. at 1, 2-3. Opinion KP-0060 considered the continuation of longevity pay for a county employee who became a county officer when the county's longevity pay did not include county officers. See Tex. Att'y Gen. Op. No. KP-0060 (2016). The opinion recognized that the constitution's prohibition against extra compensation would prohibit the new county officer from receiving longevity pay under a policy that did not provide for it. See id. at 2. But the opinion acknowledged a county commissioners court could adopt a new longevity pay policy that included county officers on a prospective basis. See id.

    Texas Constitution, article III, section 53 forbids paying "any extra compensation, fee or allowance to a public officer, agent, servant or contractor, after service has been rendered, or a contract has been entered into, and performed in whole or in part." TEX. CONST. art. III, § 53. This office consistently recognizes that article III, section 53 prohibits the retroactive awarding of compensation. See Tex. Att'y Gen. Op. Nos. KP-0060 (2016) at 2 (recognizing that longevity pay may not be granted retroactively), JC-0376 (2001) at 2 (acknowledging that salary increases may not be granted retrospectively). The key concern under article III, section 53 is that public funds are not used to pay an individual an additional amount for services already rendered. See Tex. Att'y Gen. Op. Nos. JC-0370 (2001) at 2 ("[A] county may not retroactively award or increase compensation."), JC-0026 (1999) at 2. A policy operates prospectively when a benefit becomes a term of employment and employees receive the benefit only for work performed after the benefit is established as a term of employment. See Tex. Att'y Gen. Op. No. DM-129 (1992) at 3-4 (discussing a sick leave pool).

    A county commissioners court sets the compensation, as well as all other allowances, for county and precinct officers and employees paid wholly from county funds. See TEX. LOC. GOV'T CODE § 152.011. Compensation under section 152.011 can include longevity pay. See Tex. Att'y Gen. LO-96-007, at 1-2. Longevity pay provides extra compensation based on the amount of time served. See, e.g., id. at 2 (Longevity pay is "an incremental increase in salary based on length of service."). In the context of article III, section 53, it is not payment for an employee's past service but instead payment for current services provided while recognizing a person's enhanced value to his or her employer because of the person's many years of experience and knowledge. See United States v. Alger, 151 U.S. 362, 363 (1894) (recognizing in naval context that a component of longevity pay was "to compensate for increased professional knowledge and efficiency in officers"). And opinions from this office, including one from a former administration, determined that a commissioners court could adopt a longevity pay policy that includes county officers, so long as the longevity pay operated prospectively to the adoption of the policy. See Tex. Att'y Gen. Op. Nos. KP-0060 (2016) at 2, JC-0026 (1999) at 2 (determining that longevity pay based on total years of service, including service performed prior to adoption of policy does not violate article III, section 53).

    Article III, section 53 does not preclude a longevity pay formula from including an individual's service that was rendered prior to the adoption of the longevity pay policy. See Tex. Att'y Gen. LO-96-007, at 4; see also Tex. Att'y Gen. Op. No. JC-0123 (1999) at 2 (determining that a commissioners court could adopt a policy allowing unused leave time to follow an employee who becomes a county officer if the policy operates prospectively). Accordingly, a court would likely conclude that a county's longevity pay policy for county officials may include an individual's prior service as a county employee, provided the longevity pay is earned after the adoption of the longevity policy. Cf. Tex. Att'y Gen. Op. No. H-402 (1974) at 2 (concluding that a commissioners court was not authorized to grant back pay unless there had existed, prior to the award of back pay, a policy permitting the practice). To the extent the longevity policy became a county benefit with its adoption in 2008, a court would likely determine the policy was prospectively effective as of that date, and that longevity pay earned after the policy's effective date would comport with article III, section 53. See Tex. Att'y Gen. Op. No. GA-0492 (2006) at 2 ("[A] county may provide bonuses based on performance if the county approved a bonus plan before employee recipients performed the work for which the bonuses are given."); see also Request Letter at 3 (stating it is "standard procedure since the longevity policy was created to give officials credit toward longevity for time earned as an employee").

                                SUMMARY

                  Provided any longevity pay is earned after the adoption of the longevity policy, a court would likely conclude that a county's longevity pay policy for county officials may include the prior service of the individual as a county employee.

                                       Very truly yours,

                                       KEN PAXTON
                                       Attorney General of Texas

JEFFREY C. MATEER
First Assistant Attorney General

BRANTLEY STARR
Deputy First Assistant Attorney General

VIRGINIA K. HOELSCHER
Chair, Opinion Committee

CHARLOTTE M. HARPER
Assistant Attorney General, Opinion Committee

[1] See Letter from Honorable Daphne Session, Houston Cty. Att'y, to Honorable Ken Paxton, Tex. Att'y Gen. at 2 (Sept. 7, 2016), https://www.texasattorneygeneral.gov/opinion/requests-for-opinion-rqs ("Request Letter").