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 inUvalde County, and related questions (RQ-1585)

DearMr. 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 avote of the Commissioners Court? If so, can the Budget be amended, after proper hearing, immediately to reflect the vote ofthe Commissioners, orwould the Court have to wait until their yearly budget hearings?

3. If the salary ofthe Commissioners can be lowered by the vote of the Commissioners Court, what isthe lowest amount that can be paid each Commissioner asallowed by law?

4. Can aCommissioner 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 ofaportion thereof?

Inyour 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

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compensation . . .forcounty andprecinct officers." See article XVI, section 61of 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 ineffect onJanuary 1, 1972.

InAttorney General Opinion JM-770 (1987), itwas 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.

InWhite v. Comm's Court ofKimble County, 705 S.W.2d 322, 326 (Tex.App. - SanAntonio, 1986, nowrit), it was noted that "the case law isclear that the commissioners court is limited only toproviding a reasonable salary within their discretion for county public officials." See

__ Vondv v. Comm8s Court ofUvalde 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 towhether salaries of all commissioners must be the same, it should be noted that theduties of a constable or justice of the peace are more confined to the official's precinct than are theduties of acounty 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 18of the Texas Constitution grants the county commissioners court l'suchpowers and jurisdiction
over all county business, as isconferred 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 forconducting county business except that a county taxmay be levied onlywhen at least fourmembers are present. While the commissioners sit as a body in conducting the business of the county, inthose counties where commissioners are exofficio road commissioner of their respective precincts, section 3.001(a) of article 6702-1, V.T.C.S., imposes duties on acommissioner for road andbridge 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 exofficio road commissioner. In such a rare instance itmight beurged that a reasonable salary for

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one commissioner may differ upon a marked disparity in analysis, as was concluded fromthat ofanother depending these duties. In the final in Attorney General Opinion JM-770, what constitutes a reasonable salary isa question of factwithin the discretion of the commissioners court.

Inyour second question you askwhether a salary canbe lowered for a county commissioner. The salary may be lowered at thediscretion of the court. However, under section 152.013 of the Local Government Code, the commissioners court iswithout authority to lower the salary of a county orprecinct officer until the regular annual budget hearing. See Attorney General Opinion JM-839 (1988).

Inresponse toyour third question, the salary may not be lowered to an amount less than the amount of salary in effect onJanuary 1, 1972. Local Gov't Code 5152.012.

Inyour fourth question you askwhether a commissioner may elect to receive a salary lower than that setby the commissioners court. Section 151.011 provides that the commissioners court shall set the amount of compensation for county andprecinct officers. It isnotwithin the province of acommissioner todetermine that his salary differ from the amount setby the court.1

Inyour last question you ask ifacommissioner after receiving his salary maymake agift to the county of a portion thereof.

1. We call attention to section 152.052 of the Local Government Code regarding thedecision ofan official not to bepaid.
(a)Ifan elected county officer files an

affidavit with the county clerk stating that the officer elects not tobe 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 takemeasures to stop payment ofapaycheck thatwas issued to the officer before the affidavit was filed and that has notbeen presented forpayment.

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Article XI, section 1of 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 nopowers except those which are set forth in the constitution and statutes. Id.

InAttorney General Opinion JM-684 (1987), it was stated that "inorder that a state agencymay accept agift, it firstmust be authorized by law todo 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 froma county commissioner. Generally, acounty isnot empowered to exercise any power which isnot 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 allparties are acting in the public interest. Nevertheless, absent an authorization by the legislature permitting an official todonate aportion of his salary to the county, we conclude that a county commissioner may not give a portion ofhis salary to the county.

SUMMARY

Commissioners courts may prescribe different salaries for the commissioners of different precincts ifunusual circumstances

. ineach precinct reasonably require different salaries and each salary is in itself

2. InAttorney General Opinion JM-684, itwas 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) (CriminalJustice Policy Council: Criminal Justice Coordinating Council): 4413(51) (Interagency Council on Sex Offender Treatment).

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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 onJanuary 1, 1972. The commissioners court is without authority to lower the salary of acounty orprecinct officer until the regular annual budget hearing. It isnot within theprovince of an individual commis**sioner** to .determinethat his salary differ from the amount set by the commissioners court. A county commissioner may notmake a donation of a portion ofhis salary to the county.

JIM MATTOX Attorney General of Texas

MARY KELLER First Assistant Attorney General

LOUMCCREARY Executive Assistant Attorney General

JUDGE ZOLLIE STEAKLEY Special Assistant Attorney General

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

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