December 29, 1986

HonorablePabloAvila ZavalaCountyAttorney ZavalaCounty Courthouse CrystalCity, Texas 78839 OpinionNo. JM-599
Re: Validity of Zavala County personnelpolicy concerning salary ofnew employees
DearMr. Avila:
You request advice on a provision of the 1984 Zavala County Personneland OperatingPolicies adoptedby the CommissionersCourt of Zavala County at their January 9, 1984 meeting. The Personnel and Operating Policies is a five-page documentwhich includes provisions on working conditions of county employees such as sick leave, annual leave, holidays, and travel expenses. It also covers purchasing and budgeting procedures, vehicle and equipment repair and other county operating policies. You question the validity of the underlined provision on new employees:

NEW EMPLOYEES: No vacancy in any department may be filled without prior Commissioners' Court approval. Any new/replacement employee hired during year salary to be $1,000 less than regular employee with a $1,000 increase in salary after six (6)months employment. (Emphasisadded).
We understand this policy to require new or replacement employees to work for six months before achieving the salary level of existing county employees in the sameposition.
You first suggest that the commissioners court did not give adequate notice that its meeting would consider the above provision and, therefore, the provision was adopted in violation of the Open Meetings Act, article 6252-17, V.T.C.S. Section 3A of the Open Meetings Act requires that written notice be given of the subject of eachmeeting held by a governmentalbody. Actions takenby a governmental body on a matter not stated in the notice are subiect to judicial idvalidation. V.T.C.S. art. 6252-17, §3A(a);LowCr Colorado River Authority v. City of San Marcos. 523 S.W.2d 641, 646 (Tex. 1975).

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The agenda posted to give notice of the January 9, 1984meeting includes the following item, under which the commissioners court adopted the Personnel and Operating Policies which included the provision on new employees:

9. Adoption of 1984 County Personnel Policy and CountyHolidays. Notice of a public meeting should "alert a reader to the fact that some action would be considered"with resoect to the subiect in question. Lower Colorado River Authority v. City of San Marc&, 523 S.W.2d 641. 646 (Tex. 1975). The courts have also said that the notice provisions of the Open Meetings Act are subject to substantial compliance. See, e.g., Coates v. Windham, 613 S.W.2d 572, 577 (Tex. Cl". App. - Austin 1981,no writ); McConnellv. Alamo Heights Independent School District, 576 S.W.2d 470 (Tex. Civ. App. - San Antonio 1978,writ ref'd n.r.e.); Stelzerv. Huddleston, 526 S.W.2d 710 (Tex. Cl". App. - Tyler 1975, Cox Enterprises, Inc. v. Board of Trustees of the Austin Independent School District, 706 S.W.2d 956 (Tex. 1986). The Supreme Court has recently made the followingstatementon substantial-compliance:

We have held that general notice in certain cases is substantial compliance even though the notice is not as specific as it could be. See Lower Colorado River Authority v. City of G Marcos, 523 S.W.2d 641 (Tex. 1977), and Texas Turnpike Authority v. City of Fort Worth, 554 S.W.2d 675 (Tex. 1977). However, less than full disclosure is not substantial compliance. OUS prior judgments should have served as notice to all public bodies that the Open Meetings Act requires a full disclosure of the subjectmatter of-themeetings. The Act is intended to safeguard the public's interest in knowing the workings of its governmentalbodies. (Emphasisadded).
Cox Enterprises, Inc. v. Board of Trustees of the Austin Independent SchoolDistrict, supra. See also Texas TurnpikeAuthorityv. City of Fort Worth, 554 S.W.2d 675 (Tex. 1977) (it is unnecessary to post copies of proposed resolutions or to state all of consequenceswhich may flow from considerationof subject). Whether a governmentalbody has substantially complied with the notice provisions of the Open MeetingsAct requires an application of the law to the facts of the particular case. We have set out the legal standardspertaining to notice,but have not been providedwith enough information to answer your question definitively. We cannot

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investigate and resolve fact questions in the opinion process, and accordingly,do not answeryour first question. Assuming that the provision on new employees' salaries was adopted in substantialcompliancewith the notice requirementsof the Open Meetings Act, you ask whether the commissioners court has authority to enact and implement this policy. Article 3912k. V.T.C.S.,providesas follows:

Section 1. Except as otherwise provided by this Act and subject to the limitations of this Act, the commissionerscourt 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 paidwholly from county funds,but in no event shall such salaries be set lower than they exist at the effectivedate of thisAct.

. . . . Sec. 2. (a) The salaries,expenses,and other allowancesof elected countyandprecinctofficers shall be set each year during the regular budget hearing and adoptionproceedings on giving notice as providedby thisAct. Attorney General Opinion H-11 (1973) determined that the commissioners court had authority under .article3912k, V.T.C.S., to amend its budget to increase employees' salaries at any time of the year, without going through the budgeting procedures required by article 689a-11,V.T.C.S. This articleprovides inpart:

When the budget has been finally approved by the Commissioners' Court . . . no expenditure of the funds of the county shall thereafter be made except in strict compliance with the budget as adopted by the Court. Except that emergency exoenditures. in case of grave public necessity, to'meet unusual and unfo~eseen~conditions which could not, by reasonably diligent thought and attention, have been included in the original budget,may from time to timebe authorizedby the Court as amendments to the original budget. (Emphasisadded).
V.T.C.S. art. 689a-11. Article 3912k, section 1. V.T.C.S., provides an implied exception to article 689a-11 for the fixing of non-elected employees' salaries. Attorney General OpinionH-11 (1973). Thus, we

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need not considerwhether article 689a-11,V.T.C.S., even applies to actions by the commissionerscourtwhich reduce expenditures from the countybudget. SeeV.T.C.S. art. 689a-20;Rainsv.Mercantile Naticnal g, 188 S.W.2d798 (Tex. Civ. App. - El Paso 1945). aff'd, 191 S.W.2d 850 (Tex. 1946). The commissioners court has authority under article 3912k, V.T.C.S., to reduce the compensation of new or replacement employees as long as the salaries are set no lower than they were on the January 1, 1972 effective date of the statute. V.T.C.S. art. 3912k, $1. SeeAttorneyGeneral OpinionH-39 (1973). - You finally ask whether the county policy, assuming that the countyhad authority to adopt it, can be applied to a deputy district clerk appointed by the district clerk. The coxunissioners court has authority to fix the salaries of deputy clerks under article 3912k, section -1,V.T.C.S. See Renfro v. Shropshire, 566 S.W.2d 688 (Tex. Cl". APP. - Eastlanr1978. writ ref'd n.r.e.1. Article 3902,

__ V.T.C.S.,however, prohibits the commissioners court from influencing the selectionof any person as a deputy clerk. Id.; see also Attorney GeneralOpinionsE-1113 (1978);H-697 (1975). SUMMARY
A commissioners court has authority under article 3912k, V.T.C.S.. to decrease the salaries payable to new or replacement county employees at any time of the year, as long as the salaries are set no lower than theywere on January 1, 1972. Very trulyyours, 

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JIM MATTOX AttorneyGeneral of Texas
JACK HIGHTOWER FirstAssistantAttorneyGeneral
MARY KELLER ExecutiveAssistantAttorneyGeneral RICK GILPIN Chairman,OpinionCommittee Preparedby SusanL. Garrison AssistantAttorneyGeneral

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