**. 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 ofa county attorney below anamount previously approved (RQ-1232)

**Dear** Mr. Lance:

you ask whether the commissioners court of Milam County may eliminate orreduce the salary of the Milam County Attorney below the amount approved inthe annual budget.

.Senate Bill 162 (now section 45.26b ofthe 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 ofMilam Countv isentitled to be comwensated bv the state inthe same manner and amount as wrovided bv aeneral law for district attornevs. The commissioners court ofMilam Countv mav also comwensate the countv attornev inan amount it considers advisable.
lb) The countv attornev ofMilam Countv isentitled toreceive from the state an amount for thewavment of staff salaries and gffice exwenses eaual tothe amount wrovided inthe General Awwrowriations Act tobewaid for those wurwoses to adistrict attornev who serves asinale county.
_Ic)If the countv attornev of Milam Countv receives compensation or exwenses from the state under this Act, Milam Countv

p.4044Honorable 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 ofthe 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 ofMilam County tobepaid by the State asall other felony prosecutors inthe 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 tobe compensated by the state when representing the state before the district court inMilam 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 adistrict attorney serving asingle 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 inLegislative Reference Library. Subchapter C, chapter 41 of the Government Code applies to a county attorney performing the duties of a district attorney. Itprovides that onthe first day of September, January, and **May** of.each fiscal year an amount istobepaid by the state into the officer's salary fund . -,

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

ofthat county.1 The amount ofpayment isdetermined by the population ofthe county.
Information furnished byyou reflects that following the annual budget hearing, held pursuantto section 2 of former article 3912k, V.T.C.S. (nowsection 152.013 ofthe Local Government Code), the budget approved by the commissioners court ofMilam 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 ofacounty attorney below the amount set atthe annual budget hearing until the next annual budget hearing.

InAttorney General Opinion H-643 (1975) it was concluded that the commissioners court ofGrayson County could not reduce thesalary ofacounty attorney below the amount set atthe.annual budget hearing until the following fiscal year. The facts inthat opinion are similar to the scenario you have outlined inthat the Grayson County Attorney performed the duties ofthe district attorney and received compensation from the state equal to the compensation paid by the state todistrict 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 inpayments from the state each year. (Section 41.203(b)(3), Government Code provides for 5 cents per capita for acounty with apopulation ofmore than 19,000 and notmore 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. 4046Honorable 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 - 46of the Government Code). The statute also provided that the county may pay "such additional amount which the commissioners court ofthe county in itsdiscretion fixes asadequate compensation." Following the approval of the annual budget, the commissioners court reduced the amount ofcompensation the county was paying the county attorney.

InAttorney 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 1and 2of article 3912k, V.T.C.S. (now sections 152.012 and 152.013 ofthe Local Government Code) from the amount approved atthe annual budget hearing and budget adoption proceeding. InJM-326 itwas stated:

Inmost counties, the commissioners court must approve the yearly operating budget for the county atan annual budget hearing and may amend the budget to allow emergency expenditures intimes ofgrave public necessity. V.T.C.S. art. 689a-11. The commissioners court may also make 'changes in the budget for coun~typurposes.' V.T.C.S. art. 689a-20.
The general rule derived from the aforementioned authorities was summarized in Attorney General Opinion H-11 (1973):

Inmost situations amendments to a county budget will have to meet the requirements ofArticle 689a-11, V.T.C.S. Whether circumstances exist which will warrant an amendment tothe budget will be aquestion of fact ineach case.
This rule, however, assumes a different tenor when applied tothe salaries ofcounty 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. 4047Honorable 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 ofeach 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 inno 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 onaivino notice as wrvcthis. (Emphasis added.)

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

Attorney General opinion H-11 (1973) (citations omitted). It isclear that since the county attorney isanelected 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 ofMilam County is without authority toeliminate orreduce the salary ofthe county attorney below the amount fixed atthe regular budget hearing for the year.

You also ask whether the commissioners court may eliminate the amount ofcompensation 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 inan 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 onother arounds, 492 S.W.Zd 460 (Tex. 1973) the appellate court, inconstruing theword "may," stated:
The word 'may' ordinarily implies a

permissive and discretionary force. Webster's New International Dictionary, Second Edition. It'will not be treated asa word of command unless there issomething in the context or subject matter ofthe act to indicate that itwas used in that sense. Rains v. Herrinq, 68Tex. 468, 5S.W. 369 (1887).
There isnothing insubsection (a)of section 45.266 of the Government Code to suggest that theword *'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 ofthe commissioners court tobedetermined atthe regular annual budget hearings for the years following the effective date ofthis act.



### p.4049Honorable 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 atthe annual budget hearing and budget adoption proceedings. Whether the commissioners court ofMilam County may elminate the amount ofcompensation paid the county attorney by the county isa matter left tothe discretion ofthe commissioners court atthe regular annual budget hearings following'the effective date ofSenate Bill 162 (now section 45.266 ofthe Government Code) Acts 1987, 70th Leg., ch. 34, 51, at 137, effective September 1, 1987.

JIM MATTOX Attorney General ofTexas

MARY KELLER Executive Assistant Attorney General

JUDGE ZOLLIE STEAKLEY Special Assistant Attorney General

RICK GILPIN Chairman, Opinion Committee
Prepared byTom G.Davis Assistant Attorney General

p.

### 4050