February 23, 1989 

Honorable David R. White, Jr. OpiniOn No. JR-1019 

County Attorney 

120 East North Street Re: Salary of commissionUvalde, Texas 78801 ers in Uvalde County, and 

related questions (RQ-1585) 

Dear Mr. White: 

You ask the following questions: 

1. Can the salary paid each [county] 

Commissioner be different or must each 

receive the same salary? 

2. Can the salary of the Commissioners be 

lowered by a vote of the Commissioners Court? 

If so, can the Budget be amended, after 

proper hearing, immediately to reflect the 

vote of the Commissioners, or would the Court 

have to wait until their yearly budget 

hearings? 

3. If the salary of the Commissioners can 

be lowered by the vote of the Commissioners 

Court, what is the lowest amount that can be 

paid each Commissioner as allowed by law? 

4. Can a Commissioner elect to receive a 

salary lower than what is set by the 

Commissioners Court? 

5. Can a Commissioner receive his full 

salary, and thereafter make a donation or 

gift back to the County of a portion thereof? 

In your first question you ask whether all county 

commissioners must receive the same salary. Section 152.011 

of the Local Government Code provides "[t]he commissioners 

court of a county shall set the ,amount of the 

p. 5258 
Honorable David R. White, Jr. - Page 2 (JM-1019) 

compensation . . . for county and precinct officers." See 

article XVI, section 61 of the Texas Constitution. Section 

152.012 of the Local Government Code provides that the 

salary of an officer may not be set at an amount less than 

the amount of the salary in effect on January 1, 1972. 

In Attorney General Opinion JM-770 (1987), it was found 

that the commissioners court may provide for different 

salaries for constables in each precinct if the 

circumstances reasonably require different salaries and if 

each salary is itself reasonable. 

In White v. Comm's Court of Kimble County, 705 S.W.2d 

322, 326 (Tex. App. - San Antonio, 1986, no writ), it was 

noted that "the case law is clear that the commissioners 

court is limited only to providing a reasonable salary 

within their discretion for county _ public _ officials." See 

Vondv v. Comm8s Court of Uvalde County, 620 S.W.2d 104, 

108-109 (Tex. 1981). 

While White addressed the salary of a justice of the 

peace and the issue in Vondv related to compensation for a 

constable, no reason is perceived why the same standard 

should not be applied in setting the salary of a county 

commissioner. 

As to whether salaries of all commissioners must be the 

same, it should be noted that the duties of a constable or 

justice of the peace are more confined to the official's 

precinct than are the duties of a county commissioner and 

that therefore payment of different salaries to the former 

officials might reasonably correspond to some such 

officials' duties being more extensive than others'. 

Article V, section 18 of the Texas Constitution grants the 

county commissioners court l'such powers and jurisdiction 

over all county business, as is conferred by this Constitution and the laws of the State." Section 81.006 of the 

Local Government Code requires three members of the court to 

be present for conducting county business except that a 

county tax may be levied only when at least four members are 

present. While the commissioners sit as a body in 

conducting the business of the county, in those counties 

where commissioners are ex officio road commissioner of 

their respective precincts, section 3.001(a) of article 

6702-1, V.T.C.S., imposes duties on a commissioner for road 

and bridge construction and maintenance in his precinct. 

Conceivably, there could be a substantial variance in the 

responsibilities of the commissioners in connection rSith 

their duties as ex officio road commissioner. In such a 

rare instance it might be urged that a reasonable salary for 

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Honorable David R. White, Jr. - Page 3 (JM-1019) 

one commissioner may differ 

upon a marked disparity in 

analysis, as was concluded 

from that of another depending 

these duties. In the final 

in Attorney General Opinion 

JM-770, what constitutes a reasonable salary is a question 

of fact within the discretion of the commissioners court. 

In your second question you ask whether a salary can be 

lowered for a county commissioner. The salary may be 

lowered at the discretion of the court. However, under 

section 152.013 of the Local Government Code, the commissioners court is without authority to lower the salary of a 

county or precinct officer until the regular annual budget 

hearing. See Attorney General Opinion JM-839 (1988). 

In response to your third question, the salary may not 

be lowered to an amount less than the amount of salary in 

effect on January 1, 1972. Local Gov't Code 5 152.012. 

In your fourth question you ask whether a commissioner 

may elect to receive a salary lower than that set by the 

commissioners court. Section 151.011 provides that the 

commissioners court shall set the amount of compensation for 

county and precinct officers. It is not within the province 

of a commissioner to determine that his salary differ from 

the amount set by the court.1 

In your last question you ask if a commissioner after 

receiving his salary may make a gift to the county of a 

portion thereof. 

1. We call attention to section 152.052 of the Local 

Government Code regarding the decision of an official not to 

be paid. 

(a) If an elected county officer files an 

affidavit with the county clerk stating that 

the officer elects not to be paid for the 

officer's services, the county payroll 

officer may not issue a paycheck to the 

officer. 

(b) After the affidavit is filed, the 

county payroll officer shall take measures to 

stop payment of a paycheck that was issued to 

the officer before the affidavit was filed 

and that has not been presented for payment. 

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Honorable David R. White, Jr. - Page 4 (JM-1019) 

Article XI, section 1 of the Texas Constitution states 

that counties are legal subdivisions of the state. The 

Interpretive Commentary notes that since counties are agents 

of the state, they have no powers except those which are set 

forth in the constitution and statutes. Id. 

In Attorney General Opinion JM-684 (1987), it was 

stated that "in order that a state agency may accept a gift, 

it first must be authorized by law to do so; absent such 

authority, it may not accept gifts or donations."2 The 

Legislature has not seen fit to confer authority upon a 

county to accept a donation from a county commissioner. 

Generally, a county is not empowered to exercise any power 

which is not specifically authorized by the legislature, or 

which may be reasonably inferred from a specific power. 

Canales v. Lauahlin, 214 S.W.2d 451 (Tex. 1948). 

We presume that all parties are acting in the public 

interest. Nevertheless, absent an authorization by the 

legislature permitting an official to donate a portion of 

his salary to the county, we conclude that a county 

commissioner may not give a portion of his salary to the 

county. 

SUMMARY 

Commissioners courts may prescribe 

different salaries for the commissioners of 

different precincts if unusual circumstances 

. in each precinct reasonably require different 

salaries and each salary is in itself 

2. In Attorney General Opinion JM-684, it was noted: 

The legislature has explicitly conferred 

such authority on several state agencies. 

See e.a V.T.C.S. 

State-Federal 

arts. 4413d-1 (Office of 

Relations): 4413(32f) (Texas 

Closeup Board); 4413(35) (Commission on Fire 

Protection Personnel Standards and Education): 4413(44) (Governor's Commission on 

Physical Fitness): 4413(47d) (Texas National 

Research Laboratory Commission): 4413(49) 

(Criminal Justice Policy Council: Criminal 

Justice Coordinating Council): 4413(51) 

(Interagency Council on Sex Offender Treatment). 

P. 5261 
P 

Honorable David R. White, Jr. - Page 5 (JM-1019) 

reasonable. What constitutes a reasonable 

salary is a question of fact within the 

discretion of the court. Section 152.012 of 

the Local Government Code provides that the 

salary of an official may not be set at an 

amount lower than the amount of the salary in 

effect on January 1, 1972. The commissioners 

court is without authority to lower the 

salary of a county or precinct officer until 

the regular annual budget hearing. It is not 

within the province of an individual commissioner to .determine that his salary differ 

from the amount set by the commissioners 

court. A county commissioner may not make a 

donation of a portion of his salary to the 

county. 

JIM MATTOX 

Attorney General of Texas 

MARY KELLER 

First Assistant Attorney General 

LOU MCCREARY 

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. 5262