. 

P 

P 

THE ATTOBZSEY GENERAL 

OP TEXAS 

Honorable Charles E. Lance Opinion No. JM-839 

'County and District 

Attorney Re: Whether a commissioners 

Milam County Cou'rthouse court may reduce the salary 

Cameron, Texas 76520 of a county attorney below 

an amount previously approved 

(RQ-1232) 

Dear Mr. Lance: 

you ask whether the commissioners court of Milam 

County may eliminate or reduce the salary of the Milam 

County Attorney below the amount approved in the annual 

budget. 

.Senate Bill 162 (now section 45.26b of the Government 

Code) Acts 1987, 70th Leg., ch. 34, ~51, at 137, effective 

September 1, 1987 provides: 

(a) For rewresentina the state before the 

district court in Milam Countv. the countv 

attornev of Milam Countv is entitled to be 

comwensated bv the state in the same manner 

and amount as wrovided bv aeneral law for 

district attornevs. The commissioners court 

of Milam Countv mav also comwensate the 

countv attornev in an amount it considers 

advisable. 

lb) The countv attornev of Milam Countv 

is entitled to receive from the state an 

amount for the wavment of staff salaries and 

gffice exwenses eaual to the amount wrovided 

in the General Awwrowriations Act to be waid 

for those wurwoses to a district attornev 

who serves a sinale county. 

_Ic) If the countv attornev of Milam 

Countv receives compensation or exwenses 

from the state under this Act, Milam Countv 

p. 4044 
Honorable Charles E. Lance - Page 2 (JM-839) 

is not entitled to receive funds under 

Subchawter C, Chawter 41. Government Code. 

The bill analysis to Senate Bill 162 (now section 

-,_ 

45.266 of the Government Code) states: 

BACKGROUND 

Currently, the County Attorney of Milam 

County is not funded by the state as a 

felony prosecutor. The county attorney's 

office does receive funds for staff and 

expenses incurred when preparing cases for 

district court, but no salary compensation 

is included for the attorney. 

PURPOSE . 

S.B. 162 would correct a historical 

oversight and would authorize the county 

attorney of Milam County to be paid by the 

State as all other felony prosecutors in the 

state are paid. 

SECTION-BY-SECTION ANALYSIS 

SECTION 1. Amends Subchapter B, Chapter 

45, Government Code by adding Section 45.266 

which (a) allows the county attorney of 

Milam County to be compensated by the state 

when representing the state before the district court in Milam County: (b) Entitles 

the county attorney's office to receive from 

the state payment for staff salaries and 

office expenses equal to the amount paid to 

a district attorney serving a single county; 

(c) Prohibits Milam County from receiving 

funds under Subchapter C, Chapter 41, Government Code if county attorney is compensated under this Act. 

Bill Analysis to S.B. No. 162, 70th Leg. (1987), on file 

in Legislative Reference Library. 

Subchapter C, chapter 41 of the Government Code 

applies to a county attorney performing the duties of a 

district attorney. It provides that on the first day of 

September, January, and May of.each fiscal year an amount 

is to be paid by the state into the officer's salary fund . -, 

p. 4045 
Honorable Charles E. Lance - Page 3 W-839) 

of that county.1 The amount of payment is determined by 

the population of the county. 

Information furnished by you reflects that following 

the annual budget hearing, held pursuantto section 2 of 

former article 3912k, V.T.C.S. (now section 152.013 of the 

Local Government Code), the budget approved by the 

commissioners court of Milam County for 1987 provided for 

a salary for the county attorney in the amount of 

$24,798.66.2 You state thza; 

commissioners court met, 

eliminated the salary for the' 

o;it;Iz;st 17, 1;:' y;;e 

notice 

office and agreed to pay 

$150.00 per month for travel expenses for the county 

attorney. 

You suggest that the commissioners court may not 

reduce the salary of a county attorney below the amount 

set at the annual budget hearing until the next annual 

budget hearing. 

In Attorney General Opinion H-643 (1975) it was 

concluded that the commissioners court of Grayson County 

could not reduce the salary of a county attorney below the 

amount set at the.annual budget hearing until the following fiscal year. The facts in that opinion are similar to 

the scenario you have outlined in that the Grayson County 

Attorney performed the duties of the district attorney and 

received compensation from the state equal to the compensation paid by the state to district attorneys under then 

1. Under the General Appropriations Act, Acts 1987, 

70th Leg., 2d C-S., ch. 78, art. IV, at 1037, district 

attorneys not prohibited from practicing law (applies to 

Milam County) are compensated by the state at $44,342 

(1988) and $44,342 (1989). Milam County's population 

(22,732) resulted in the county receiving a total of 

$1,136.60 in payments from the state each year. (Section 

41.203(b)(3), Government Code provides for 5 cents per 

capita for a county with a population of more than 19,000 

and not more than 75,000). 

2. Under the General Appropriations Act, Acts 1987, 

70th Leg., 2d C.S., ch. 78, art. IV, at 1037, district 

attorneys not prohibited from practicing law (applies to 

Milam County) are compensated by the state at $44,342 

(1988). and $44,342 (1989). 

p. 4046 
Honorable Charles E. Lance - Page 4 W-839) 

article 33233, V.T.C.S. (Grayson County Attorney is now 

governed by the Professional Prosecutors Act under chapter - 

46 of the Government Code). The statute also provided 

that the county may pay "such additional amount which the 

commissioners court of the county in its discretion fixes 

as adequate compensation." Following the approval of the 

annual budget, the commissioners court reduced the amount 

of compensation the county was paying the county attorney. 

In Attorney General Opinion JM-326 (1985), it was 

stated that the commissioners court could not reduce the 

salary Wichita County paid its county attorney pursuant to 

then sections 1 and 2 of article 3912k, V.T.C.S. (now 

sections 152.012 and 152.013 of the Local Government Code) 

from the amount approved at the annual budget hearing and 

budget adoption proceeding. In JM-326 it was stated: 

In most counties, the commissioners court 

must approve the yearly operating budget for 

the county at an annual budget hearing and 

may amend the budget to allow emergency 

expenditures in times of grave public necessity. V.T.C.S. art. 689a-11. The commissioners court may also make 'changes in the 

budget for coun~ty purposes.' V.T.C.S. art. 

689a-20. 

The general rule derived from the aforementioned authorities was summarized in 

Attorney General Opinion H-11 (1973): 

In most situations amendments to a 

county budget will have to meet the 

requirements of Article 689a-11, V.T.C.S. 

Whether circumstances exist which will 

warrant an amendment to the budget will 

be a question of fact in each case. 

This rule, however, assumes a different 

tenor when applied to the salaries of county 

officers and employees contained in the 

annual county budget: 

[A]s to salaries of county officers and 

employees, the rule has been impliedly 

amended by the enactment, in 1971, of 

Article 3912k. . . . 

Attorney General Opinion H-11 (1973). 

p. 4047 
Honorable Charles E. Lance - Page 5 UM-839) 

Article 3912k, V.T.C.S., establishes 

guidelines to be observed by the 

commissioners court when setting the 

salaries of certain county officials and 

employees. It contains the following 

pertinent provisions: 

Section 1. 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, but in no event 

shall such salaries be set lower than 

they exist at the effective date of this 

Act. 

,- 

. . . . 

Sec. 2. (a) The salaries, expenses, 

and ether allowances of ~electnd coand sreci net officgrs~ shall be set .---GGh 

mdurina the r*aular budact heam 

and adootion wroced&s on aivino notice 

as wrvcthis. (Emphasis 

added.) 

In Attorney General Opinion H-11 (1973), it 

was stated that section 2 'applies only to 

elected county and precinct officers, [and1 

requires that their salaries be set during 

the regular budget hearing.' (Emphasis 

added.) The opinion further noted that 

because section 1 oE article 3912k imposes 

no similar limitation on the authority of 

the commissioners court to fix salaries of 

non-elected employees and officials, these 

salaries 

may be fixed at times @ther than during 

the regular budget hearing. To the 

extent that this is inconsistent with 

Article 689a-11, Article 3912k furnishes 

an implied exception thereto. 

p. 4048 
Honorable Charles E. Lance - Page 6 (JM-839) 

Attorney General opinion H-11 (1973) 

(citations omitted). It is clear that since 

the county attorney is an elected official, 

see Tex. Const. art. V, 521, the salary for 

that office may be considered and adopted 

only during the regular, annual budget 

hearing and adoption proceedings. V.T.C.S. 

art. 3912k, 52(a). Cf. Attorney General 

Opinion JM-313 (1985). 

The commissioners court of Milam County is without 

authority to eliminate or reduce the salary of the county 

attorney below the amount fixed at the regular budget 

hearing for the year. 

You also ask whether the commissioners court may 

eliminate the amount of compensation paid by the county 

for the county attorney. Subsection (a) of Senate Bill 

162 provides that the commissioners court mav also 

comwensate the county attorney in an amount it considers 

advisable. 

In Bloom v. Texas State Board of Examiners of 

Psvcholoaists, 475 S.W.2d 374, 377 (T&x. Civ. APP. - 

Austin 1972), rev'd on other arounds, 492 S.W.Zd 460 (Tex. 

1973) the appellate court, in construing the word "may, " 

stated: 

The word 'may' ordinarily implies a 

permissive and discretionary force. 

Webster's New International Dictionary, 

Second Edition. It'will not be treated as a 

word of command unless there is something in 

the context or subject matter of the act to 

indicate that it was used in that sense. 

Rains v. Herrinq, 68 Tex. 468, 5 S.W. 369 

(1887). 

There is nothing in subsection (a) of section 45.266 

of the Government Code to suggest that the word *'may'* is 

to be treated as a word of command. Whether the 

commissioners court may eliminate the amount of 

compensation paid the county attorney by the county is a 

matter left to the discretion of the commissioners court 

to be determined at the regular annual budget hearings for 

the years following the effective date of this act. 

p. 4049 
Honorable Charles E. Lance - Page 7 (JM-839) 

SUMMARY 

The commissioners court is without 

authority to reduce the salary of the county 

attorney set pursuant to section 2 of 

article 3912k, V.T.C.S. (now section 152.013 

of the Local Government Code), from the 

amount approved at the annual budget hearing 

and budget adoption proceedings. Whether 

the commissioners court of Milam County may 

elminate the amount of compensation paid the 

county attorney by the county is a matter 

left to the discretion of the commissioners 

court at the regular annual budget hearings 

following'the effective date of Senate Bill 

162 (now section 45.266 of the Government 

Code) Acts 1987, 70th Leg., ch. 34, 51, at 

137, effective September 1, 1987. 

JIM MATTOX 

Attorney General of Texas 

MARY KELLER 

Executive Assistant Attorney General 

JUDGE ZOLLIE STEAKLEY 

Special Assistant Attorney General 

RICK GILPIN 

Chairman, Opinion Committee 

Prepared by Tom G. Davis 

Assistant Attorney General 

p. 4050