ATTORNEY GENERAL OF TEXAS 

GREG ABBOTT 

March 13.2003 

The Honorable Tom Maness 

Jefferson County Criminal District Attorney 

Jefferson County Courthouse 

1001 Pearl Street, Third Floor 

Beaumont, Texas 77701-3545 

Opinion No. GA-0037 

Re: County commissioners court’s authority 

over hiring and budgetary matters concerning 

an elected county officer (RQ-0603-JC) 

Dear Mr. Maness: 

In light of a policy the Jefferson County Commissioners Court proposes to adopt as part of 

the annual budget, you ask a number of questions regarding the court’s authority over hiring and 

budgetary matters, particularly where the court’s authority may affect an elected county officer’s 

budget.’ 

We consider the court’s authority generally and not with respect to any particular county 

officer. None of your questions refer to the commissioners court’s authority vis-a-vis a particular 

county officer. Statutes specifically applicable to a particular county officer may provide the officer 

with more or less authority, relative to the commissioners court, and may lead to a different result. 

See, e.g., Commissioners Court of Harris County v. Fullerton, 596 S.W.2d 572, 576 (Tex. Civ. 

App.-Houston [ 1st Dist.] 1980, writ ref d n.r.e.) (finding, based on statutes applicable to county 

auditor, that auditor has “impressive array of independent administrative duties and discretionary 

powers”). 

I. The Proposed Policy 

You suggest that the Jefferson County Commissioners Court has proposed a policy intended 

“to allow” an elected county official to promote an existing employee to fill a position that becomes 

vacant during the fiscal year and to prohibit the elected official from increasing the newly promoted 

employee’s salary more than three percent of the employee’s pre-promotion salary. Request Letter, 

supra note 1, at l-2. Promoting one employee could, of course, initiate a domino effect: the officer 

would fill a vacancy by promoting an employee, which resulting vacancy would again be filled by 

promoting another existing employee. See id. at 2. Each promoted employee’s salary would be 

increased no more than three percent, until “the final vacancy [is] either not filled or. . . filled [only] 

‘Letter from Honorable Tom Maness, Jefferson County Criminal District Attorney, to Honorable John Comyn, 

Texas Attorney General, at 2 (Aug. 30,2002) (on file with Opinion Committee) [hereinafter Request Letter]. 
The Honorable Tom Maness - Page 2 (GA-0037) 

at a reduced salary with the” commissioners court’s subsequent, express permission. Id. An unfilled 

vacancy would be frozen for the remainder of the budget year, although an elected officer could 

petition the commissioners court to fill a “frozen” position. See Jefferson County, Texas, 

Classification/Compensation, Staffing, Sick Leave Pay-out & Retirement, 2002/2003 Proposed 

Changes/Recommendations, attached to Request Letter, supra note 1, at 2. An employee hired after 

commissioners court approval of the officer’s petition would be compensated at eighty percent of 

“the applicable range” unless the department head or elected official were to successfully petition 

the commissioners court to increase the rate of pay. Id. 

II. Relevant State Statutes 

A. The county commissioners court’s budgetary authority 

A county commissioners court’s extensive authority over the county’s budget is set 

forth in statutory law. See Abbott v. Pollock, 946 S.W.2d 5 13, 5 17 (Tex. App.-Austin 1997, writ 

denied) (stating that commissioners court may exercise only those powers that are expressly 

conferred upon it or that are necessarily implied from express powers); accord Tex. Att’y Gen. Op. 

No. JC-0584 (2002) at 17 (same). Seegenerally TEX. LOC. GOV’TCODEANN. ch. 111 (Vernon 1999 

& Supp. 2003). A letter you prepared for the county judge and commissioners court indicates that 

Jefferson County prepares its budget in accordance with chapter 111, subchapter C of the Local 

Government Code.* 

Under chapter 111, subchapter C, after the commissioners court has approved the annual 

budget, the court must file a copy of the budget with the county clerk and the county auditor. See 

TEX. Lot. GOV’T CODE ANN. $ 111.069 (Vernon 1999). Generally, a commissioners court may 

expend county funds only in “strict compliance with the budget.” Id. 8 111.070(a). A 

commissioners court may amend the budget to permit an emergency expenditure in limited 

circumstances only: 

The commissioners court may authorize an emergency expenditure as an 

amendment to the original budget only in a case of grave public necessity to meet an 

unusual and unforeseen condition that could not have been included in the original 

budget through the use of reasonably diligent thought and attention. If the court 

amends the original budget to meet an emergency, the court shall file a copy of its 

order amending the budget with the county clerk . . . . 

Id. 5 111.070(b). The commissioners court may, however, “amend the budget to transfer an amount 

budgeted for one item to another budgeted item without authorizing an emergency expenditure.” 

*See Letter from Tom Maness, Jefferson County Criminal District Attorney, to Honorable Carl R. Griffith, 

Jefferson County Judge; Honorable Jimmie Cokinos, Jefferson County Commissioner; Honorable Mark Domingue, 

Jefferson County Commissioner; Honorable Everest D. Alfred, Jefferson County Commissioner; and Honorable Waymon 

Hallmark, Jefferson County Commissioner, at 2 n.2 (July 26,2002), attached to Request Letter, supra note 1 [hereinafter 

Memorandum]. 
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Id. § 111.070(c). And the commissioners court may change the budget “for county purposes.” Id. 

8 111.0709. 

A commissioners court’s power extends beyond the budgeting process to the expenditure of 

budgeted county funds. For instance, when a county budget has been adopted and certified, the 

county auditor may not allocate “for any other purpose” an amount budgeted “for a . . . salary or 

labor account.. . unless an unexpended balance remains in the account after” the obligation has been 

fully discharged or unless the commissioners court or a county officer cancels the allocation in 

writing “for a valid reason.” Id. 8 111.093(d). The county treasurer, the “chief custodian of county 

funds,” may disburse county tinds only “as the commissioners court may require or direct.” Id. 

$9 113.001, 113.041(a) (Vernon 1999 & Supp. 2003). 

B. An elected official’s authority over his or her employees 

An elected county officer, despite the commissioners court’s control over the officer’s 

budget, is free to select assistants of his or her “own choice.” Abbott, 946 S.W.2d at 5 17. An elected 

county officer “occupies a sphere of authority, . . . within which another officer may not interfere or 

usurp.” Renken v. Harris County, 808 S.W.2d 222,226 (Tex. App.-Houston [ 14th Dist.] 1991, no 

writ) (citingPritchard&Abbottv.MXenna, 350 S.W.2d 333,335 (Tex. 1961)); accordAbbott, 946 

S.W.2d at 517; Tex. Att’y Gen. Op. No. JC-0214 (2000) at 3 (quoting Renken, 808 S.W.2d at 226). 

This “sphere of authority” consists of those duties the Texas Constitution and statutes delegate to 

the officer. See Renken, 808 S.W.2d at 226; Abbott, 946 S.W.2d at 517. Thus, an elected county 

officer may “decide how to use the employees who work in his or her office to accomplish the 

officer’s constitutional and statutory duties.” Tex. Att’y Gen. Op. No. JC-0239 (2000) at 4. 

Similarly, although a county commissioners court sets an elected county officer’s budget, the officer 

may determine how best to use the funds to accomplish the office’s constitutional and statutory 

duties. See Tex. Att’y Gen. Op. No. JC-0214 (2000) at 6. 

Nevertheless, the county commissioners court determines the number of employees an officer 

mayappoint,seeT~~.Loc.G~~‘TC~~~ANN. 05 151.001(a), 151.002,151.901 (Vernon 1999), and 

sets officers’ and employees’ compensation, see id. 8 152.011, although the amount generally may 

not be “less than the amount of the salary in effect on January 1, 1972.” Id. $ 152.012. 

III. Applying the Law to the Issues You Raise 

A. Your first question 

You ask first whether a commissioners court may fund a position of employment in 

an elected official’s department, but impose the condition that, should the present employee vacate 

the position, one of two circumstances will occur: (1) funds for the position will cease unless the 

officer obtains the commissioners court’s special permission to hire someone who is not currently 

a county employee; or (2) the position’s salary will be reduced to increase a promoted existing 

employee’s salary no more than three percent. See Request Letter, supra note 1, at 2. Because such 

a policy would interfere with an elected officer’s authority to appoint, we conclude that a 

commissioners court may not condition the funds in this manner. 
The Honorable Tom Maness - Page 4 (GA-0037) 

The commissioners court’s proposed policy interferes with an elected officer’s authority to 

appoint an employee of his or her choice to a position that the commissioners court has approved and 

for which the court has set compensation. A commissioners court may not tell an elected officer 

whom he or she may appoint to an approved position. See Abbott, 946 S.W.2d at 517. Certainly, 

a commissioners court may determine whether a particular position in an elected officer’s department 

is warranted each time it considers the annual budget. See id. (stating that commissioners court 

exercises budgetary power over positions in sheriffs office by determining number of deputies, 

assistants, and clerks sheriff may appoint). Moreover, the commissioners court may set the 

compensation for the elected officers’ employees in each annual budget process. See id. (stating that 

commissioners court’s budgetary authority encompasses power to set sheriffs employees’ 

compensation). But, by requiring the officer to promote an existing employee, unless the officer 

obtains the commissioners court’s special approval to hire someone else, the court impermissibly 

intrudes upon the officer’s sphere of authority to select any person he or she chooses (provided that 

the appointment doesn’t violate any other laws, e.g., chapter 573 of the Government Code, relating 

to nepotism). 

B. Your second question 

We answer your second question similarly. You ask whether a commissioners court 

may “impose a ‘freeze’ on hiring to fill” vacant “positions that have been budgeted for” an elected 

official’s office and, if so, whether such a freeze would “be a budget amendment that would require” 

the commissioners court to declare an emergency under section 111.070 of the Local Government 

Code. Request Letter, supra note 1, at 2. 

We conclude that a commissioners court may not, during a budget year, “freeze” a vacant 

position by requiring an officer to promote an existing county employee or to obtain the court’s 

special permission. Such a policy impermissibly intrudes upon an elected officer’s authority to 

appoint an employee of his or her choice to fill a position that the commissioners court has approved. 

c. Your third question 

You ask next about a commissioners court’s authority to reallocate funds that were 

budgeted for “various capital expenditures.” Id. By the term “reallocate,” we assume you refer to 

a transfer of funds from one line item to another. 

We conclude that a commissioners court may transfer funds from one line item to another 

existing line item without authorizing an emergency expenditure. See Tex. Att’y Gen. LO-97-05 1, 

at 2. A commissioners court may “amend the budget to transfer an amount budgeted for one item 

to another budgeted item without authorizing an emergency expenditure,” TEX. LOC. GOV’T CODE 

ANN. 5 111.070(c) (Vernon 1999)’ although the court may transfer funds “only between existing 

budgeted items.” Tex. Att’y Gen. LO-97-05 1, at 2. Whether a transfer is permissible is a question 

of fact that the commissioners court must determine in the first instance. See id. 
The Honorable Tom Maness - Page 5 (GA-0037) 

D. Your fourth question 

You also ask about the “nature” of the commissioners court’s “involvement and 

authority in approving expenditures of county funds after the annual budget is adopted.” Request 

Letter, supra note 1, at 2. In particular, you ask whether the court’s involvement is “ministerial,” 

or whether the court may “choose not to make a particular budgeted expenditure.” Id. 

The commissioners court’s authority is discretionary, not ministerial. A commissioners 

court’s authority encompasses “a power to decide that a particular purchase may not be necessary.” 

Tex. Att’y Gen. Op. No. JC-0214 (2000) at 7. For example, if the county commissioners court does 

not approve a particular expenditure, the county treasurer may not disburse the necessary county 

funds. See TEX. LOC. GOV’T CODE ANN. 8 113.041(a) (Vernon Supp. 2003). In addition, as a 

general matter, only a commissioners court may make contracts binding upon the county. See Tex. 

Att’y Gen. Op. No. JC-0214 (2000) at 7. Nevertheless, the commissioners court’s authority is 

limited to the extent that its refusal to approve a requested expenditure precludes an elected officer 

from carrying out the legal responsibilities of the office. See Vondy v. Comm ‘rs Ct., 7 14 S. W.2d 

417,422 (Tex. App.-San Antonio 1986, writ ref d n.r.e.) (stating that commissioners court cannot 

attempt to restrict elected officer in performance of required duties); Tex. Att’y Gen. Op. No. JC02 14 (2000) at 4 (quoting Vondy). Whether a particular refusal precludes an elected officer from 

carrying out his or her official duties is a question of fact that the commissioners court must 

determine in the first instance. 

E. Your fifth question 

Finally, you ask whether a commissioners court may reduce an elected official’s 

budget after the court has adopted the budget, i.e., in the middle of the county’s fiscal year. See 

Request Letter, supra note 1, at 1. You specify that you recognize that an elected county officer’s 

salary may be changed only during the annual budget process. See id.; see also TEX. LOC. GOV’T 

CODE ANN. 6 152.013 (Vernon 1999); Tex. Att’y Gen. LO-94-082, at l-2 (and opinions cited therein) 

(recognizing that commissioners court may modify elected county officer’s salary only during regular 

budget hearing). 

To the extent that you ask about amendments that consist of transferring funds from one 

budgeted item to another, section 111.070(c) of the Local Government Code clearly authorizes the 

court to so amend its budget. See TEX. LOC. GOV’T CODE ANN. 5 111.070(c) (Vernon 1999). The 

court may transfer the funds even in the absence of an unforeseeable “grave public necessity.” Id. 

$ 111.070(b). Nothing indicates that a commissioners court’s authority to transfer funds does not 

apply to an elected county officer’s budget, although the commissioners may not, by transferring 

funds from an elected county officer’s budget, thereby prevent the officer from performing his or her 

required duties. See Vondy, 714 S.W.2d at 422 (stating limits on commissioners court’s authority). 

A commissioners court may not, on the other hand, reduce an elected official’s budget in the 

middle of a budget year if it does not transfer the funds to another item already included in the 

county budget unless the commissioners court determines that there is an emergency. See TEX. LOC. 

GOV’T CODE ANN. 9 111.070(b) (Vernon 1999); Tex. Att’y Gen. Op. No. JM-784 (1987) at 14. 
The Honorable Tom Maness - Page 6 (GA-0037) 

Section 111.070(b), which refers to emergency “expenditures” only, applies to any budget 

amendment. See Tex. Att’y Gen. Op. JM-784 (1987) at 9-14 (and cases cited therein). Similarly, 

section 111.0709 of the Local Government Code, which provides that the commissioners court is 

not prevented from changing “the budget for county purposes,” TEX. LOC. GOV’T CODE ANN. fj 

111.0709 (Vernon 1999), applies only in emergency situations. See Tex. Att’y Gen. Op. JM-784 

(1987) at 14; Tex. Att’y Gen. LO-97-05 1, at 2; cJ: Goolsbee v. Tex. & New Orleans R.R. Co., 243 

S.W.2d 386, 388 (Tex. 1951) (defining “emergency”); River Rd. Neighborhood Ass ‘n v. S. Tex. 

Sports, 720 S.W.2d 551, 557 (Tex. App.-San Antonio 1986, writ dism’d) (same). 

Thus, with the exception of transfers between items included in the county budget, the 

Jefferson County Commissioners Court “may spend county funds only in strict compliance with the 

budget” unless an emergency exists. TEX. LOC. GOV’T CODE ANN. 0 111.070(a) (Vernon 1999). 

Whether Jefferson County faces “a case of grave public necessity” requiring an emergency 

expenditure to “meet an unusual and unforeseen condition that” the county “could not have . . . 

included in the original budget through the use of reasonably diligent thought and attention” is a 

question of fact that this office cannot resolve. Id. 8 111.070(b); see Tex. Att’y Gen. Op. No. GA0003 (2002) at 1 (stating that opinion process does not determine facts). 
The Honorable Tom Maness - Page 7 (GA-0037) 

SUMMARY 

A commissioners court may not impose the condition on a 

position of employment in an elected official’s department such 

that, if the present employee vacates the position, funds for the 

position’s salary either (1) will cease unless the officer obtains the 

commissioners court’s special permission to hire someone who is not 

currently a county employee, or (2) will be reduced to increase a 

promoted existing employee’s salary no more than three percent. 

Such a condition interferes with an elected officer’s authority to 

appoint an employee of his or her choice to a position that the 

commissioners court has approved and for which the court has set 

compensation. For the same reason, a commissioners court may not 

“freeze” a vacant position and condition filling the position on 

promoting an existing county employee or obtaining the court’s 

special permission. 

A commissioners court may transfer funds from one line item 

in the county budget to another existing line item in the county budget 

without authorizing an emergency expenditure. See TEX. LOC. GOV’T 

CODE ANN. 9 111.070(c) (Vernon 1999). Thus, to the extent that a 

budget amendment consists of transferring funds from one budgeted 

item to another, section 111.070(c) of the Local Government Code 

clearly authorizes the court to so amend the county budget, even in 

the absence of an emergency. See id. On the other hand, to the extent 

that a proposed amendment is not a mere transfer, the court may not 

accomplish the amendment in the absence of an emergency. See id. 

tj 111.070(b)-(c). 

In general, a county commissioners court has discretionary 

authority to approve an expenditure proposed by a county officer after 

the annual budget is adopted, although the court may not, by refusing 

to approve a requested expenditure, interfere with an elected officer’s 

ability to perform his or her legal duties. 

Very truly yours, 

Attomuneral of Texas 
The Honorable Tom Maness - Page 8 (GA-0037) 

BARRY R. MCBEE 

First Assistant Attorney General 

DON R. WILLETT 

Deputy Attorney General - General Counsel 

NANCY S. FULLER 

Chair, Opinion Committee 

Kymberly K. Oltrogge 

Assistant Attorney General, Opinion Committee