JIM MAlTOX Attorney General

Supreme Court Building P. 0. Box 12548 Austin. TX. 7871% 2548 512l4752501 Telex 9101874-1357 Telecopier 512/4750288

714 Jackson. Suite 700 Dallas. TX. 75202-4506 214l742-89u

4824 Alberta Ave., Suite 160 El Paso. TX. 799052793915l

# The Attorney General of Texas

June 13. 1985

Eonorable

James A. Rasmussen Uichita,Couuty

Attomey WichitaCountyCourthouse 1 th 6 Lamar. Suite 207 Wichita Falls,Texas 76301 opinionNo. at-326 Re: Whether a commissioners court may reduce a county attorney's salary after the annualbudget has been adopted Dear Mr. gamussen: Pou have requested an opinion from this office regarding the authority of the cnnmissionerscourt to reduce the salary of the county attorney.afc:e!r the annual budget for the county has been approved..

Specifically,

you ask the following questions:

1Ml Texas. Suite 700 Housion. TX. 770025111 713/223-5888 1. Doee a comDiesioners court have authority to reduce lthe salary of a county attorney after the annual budget hearing and budget adoption proceedinge?
806 Broadway. Suite 312 Lubbock, TX. 79401-3479 8W747.5238

4306 N. Tenth, Suite B MeAllen. TX. 78501.1685 51s82.4547 2. Is the county attorney estopped from claiming hwk salary by subsequentlyaccepting less than the salary set pursuant to article 3912k. .V.T.C.S.? To assistue in rendering our opinion,

you have supplied

the following facts:

200 Main Plwa Suite 400 San Antonio. TX. 782G52797 512Q25-4191

An Equal Opportunltyl AffirmalIve Action Employer 1. On Sleptember 12, 1983, after the annual budget hewing. the final budget of Wichita County, TaBa for the year of 1984 vae certified by the county judge and filed with the county clerk of Wichita County,Texas. 2. The salary of the county attorney in said budget.waeIret

at,a sum of $38.919.00 per annum. .3. ,;On:Jcamber 31, 1983, the incumbentcounty attorneyraraigned

from office. 4. On January 9, 1984, I was appointedcounty attorney by tbe ctissioners court of Wichita County,Texas.

p. 1489.

. . ‘ ,, Eonorable

JamesA. Rasmussen'- Page 2 (JM-326)

5. On the same date (January 9. 1984) the commissioners

court entered an order reducingthe salary of the cowty attorney to the sum of $30.312.00 per annum. This is the salary currently

being paid. 6. Ho noticeva6 provided by the commisaloners court aa to the proposedsalary reduction.
In most counties,

the commiaaloners

court must approvethe yearly operating

budget for the county at an annualbudget hearing and may amend the budget to allow emergency expenditures in times of grave publicnecessity. V.T.C.S.art. 689a-11. The commisa*onera courtmay also make "changesin the budSet for countypurposes." V.T.C.S. art. 6898-20. The generalrule derivei, from the aforementioned authorities

was summarized

in **Attorney** GeneralOpinion E-11 (1973):
In most situations amendments to a county budget will have I:O mset the requirementsof Article 6898-11, V.'T.C.S. Whether circumstances exist which will warrant an amendment to the budget will be a questionof fact in each case. This rule, however, assumes a different tenor when applied to the salaries of county officere and employees contained in the annual countybudget:

\ **[Als** to salaries of county officers and employees, the rule has been :hnpliedly amended

by the enactPent, in 1971, of Article 3912k.
. . . Attorney

General

OpinionE-11 (1973). \ Article 3912k. V.T.C.S.,establishes guidelines

to be observed

by !\ the cormnissionera court vher setting the salariesof certain county officials and employees. tt contains the following pertinent provisions: Section 1. Except as otherwise provided by

this Act and subject to the limitations of this Act, the conmissiorters courtAof 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 frcm county funds. but in uo event shall such aalarielr be set lover than they exist *t the effective

date of this Act.

p. 1490RonorableJames A. Rasmussen - Page 3 (JM-326)

. . . . Sec. 2. (a) The!

salaries,

expenses,

and other allowances

of electedcounty and precinct officers -- shall be set each year during the regularbudget hearing and adoptio,; proceedings

on giving notice as provided

by this ?,ct

--* (Emphasis

added).
In AttorneyGeneralOpinion II-11(1973),it was stated that section 2 "applies only to elected county and precinctofficers, [and] requires that their salaries be set during the regular budget hearing." (Emphasis

added). Tbe opinion furthernoted that because section1 of article 3912k imposesno similar limitationon the authorityof the commissionerscourt to fix salaries of non-elected employees and officials.

these salaries
nay be fixed at times other than during the regularbudget hearing. To the extent that this is inconsistentw:Lth Article 6898-11, Article 3912k furnishes

an :tnplied

exception

thereto. AttorneyGeneralOpinion H-11 111973)

(citations

omitted). It is clear that since the countyattorney? is an electedofficial, see Tex. Const. art. V, 521, the salary for that office nay be considea and adopted only during the regular, ar.nual budget hearing and adoption proceedings. V.T.C.S. art. 391;!k, 12(a). Cf. AttorneyGeneral Opinion

- JM-313 (1985). One of the established mles of statutoryconstruction decrees that when two statutes affec:t the same general subjectmatter, the more specificof the two is controlling. See Sam BassettLumber Co. v. City of Eouston, 198 S.W.Zd 879 (Tex. 19 m; East Texas Oxygen Co. v. State, 681 S.W.2d 741, 745 (Tex.App. - Austla this instance. both articles 6898-11 and 3912k deal nenerallvwith 84, no writ). In county budget matters and th.ecommissionerscourt's discretion in creatingthe budget. Article 3912k,however,deals in particular with the salariesof county and precinctofficialsand employees. subjects that would otherwise be guided by article 6898-11. Accordingly, we believe that article 3912k, and the interpretations of the statute

by the courts and this offi,ce, control the outcome of your inquiry. Thus, in Attorney General Cplnion R-643 (1975) this office concluded that the comuissioners'court may not reduce the salary of the county attorney below the amount fixed at the annualbudget hearinguntil the folloving

fiscalyear. This opinion noted that although article 3912k deals generally

with salary in'-reases.

-- [i]mplicit in thie conclusion is the corollary that the salaries of these [elected county and precinct]

officials

uay not be decreased until the next fiscal

yesr. ('Emphasis

in original).

p. 1491,A Y. ‘ , Honorable Jataes A. ~asmusaen

- Page 4 (JH-326)

It appears. then. ~that the conmissioners court is not accorded the discretionto "make changes in" or to amend the salariesof elected county and precinct officials pursuant

to article 689a-11 and 689a-20 after approval at the regular’ budget hearing. We thereforeansver your first questionin the negative. Your second questionaska vhether the acceptance of a salary in an amount less than that set :Ln accordance

with article 3912k estops the countyattorney from claisrtng the avounthe is entitledto receive by lav. The mle vhicb ansverayour inquiryvas first announcedin Morrison v. City of Fort Worth, i55 S.Ui2d 908. 910 (Tex. 1941) and most recentlyaffirmed in Brow v. Tyler County Commissioners Court, -- 560 S.W.2d435, 437 (Tex.Civ. App. - Beaumont 1977.no vrit):

[W]e think it is the lav in this State that a public officer cannct estop himself from claiming his statutorysalary 'by agreeing to accept,or by accepting,

less than the salaryprovided by law. Your second question, accordi&y. is answered in the negative. We caution that our answers here should not be read to divest the cotmissioners

court of its discretionto fix salaries in accordance vith the lavs of the state.or to reauire the court to award anything rsore than vhat it considersto be a reasonablesalary. See V.%.C.SY art. 3912k. Cf. Vond v. Cotmlissioners Court of Uvalde~unty, 620 S.U.2d 104. 108 (Tex. 1981
.

-----r-

The commissionerscourt may not reduce the salary of the count:g attorney,or any salary set pureuant to section 2. of article 3912k.V.T.C.S., from the amount arsproved at the annual budget hearing and budget adoption proceedings. The county attorney is not estopped from claimingthe amounts he is entit,l.ed to receive under article 3912k by accepting a salary less than the sum originally

approved

pursuantto article 3912k. 

# L-&g+

AttorneyGeneralof Texas

TOM GREEN First Assistant Attorney General

P. 1492Honorable James A. Usmussen - Page 5 (m-326)

DAVID R. RICHARDS Executive

Assistant AttorneyGweral ROBERTGRAY Special

Assistant

AttorneyGewsal RICK GILPIN Chaiman, OpinionCommittee Prepared

by Rick Gilpin Assistant

Attorney

General APPROVED: OPINIONCOMHITTRE Rick Gilpfn,Chairman Colin Carl Susan Garrison Tony Guillory Jim Noellinger Jennifer

Riggs Nancy Sutton

p. 1493