Untitled Texas Attorney General Opinion ( 2006 )

ATTORNEYGENERAL OF TEXAS
GREG ABBOTT
October 23,2006
Mr. Carlos A. Pereda, Jr. Opinion No. GA-0470
Maverick County Auditor
Post O&e Box 1246 Re: Whether a county participating in Operation
Eagle Pass, Texas 78853-1246 Linebacker may use Justice Assistance Grant funds
to pay its sheriff or a constable compensation, such
as overtime, in addition to the salary appropriated in
the existing county budget (RQ-0444-GA)
Dear Mr. Pereda:
You ask whether a county participating in Operation Linebacker may use Justice Assistance
Grant (“JAG”) funds to pay its sheriff or a constable compensation, such as overtime, in addition to
the salary appropriated in the existing county budget.’ You also ask whether a county may
compensate the constable from JAG funds for services performed as a deputy sheriff. See Request
Letter, suprci note 1, at 1.
The Federal Edward Byrne Memorial JAG Program, administered by the United States
Department of Justice’s Offrce of Justice Programs, Bureau of Justice Assistance, “allows states and
local governments to support a broad range of activities to prevent and control crime and to improve
the criminal justice system.” BUREAUOFJUSTICEASSISTANCE, JUSTICEASSISTANCEGRANT(JAG)
PROGRAM,OVERVIEW, available athttp://www.ojp.usdoj.govlBJAlgrant/jag.html (last visited Oct.
13, 2006). JAG funds are allocated to states to be used to further certain types of programs,
‘SeeLetterti-omCarlosA. Pereda,Jr.,MaverickCountyAuditor,to HonorableGregAbbott,AttorneyGeneral
of Texas(Apr. 13, 2006) (on file with the OpinionCommittee)[hereinafterRequestLetter];see also Letterfrom
HonorableJ. SteveHouston,BrewsterCountyAttorney,to HonorableGregAbbott,AttorneyGeneralof Texas(Feb.
14, 2006)(on file with the OpinionCommittee,also availableat hap:liwww.oag.state.tx.us); Letterfrom CarlosA.
``````~
````Pereda,``Jr:;Maverick~County~Auditor;t6~HonorableGreg~Abbon; Attor?i~yG&z%.l~of Te% (J&i.3lv2006)(on tile
withtheOpinionCommittee,alsomailable athttp://www.oag.state.tu.us) [hereinafterJanuaryPeredaLetter].A county
auditoris authorizedto requestthe attorneygeneral’sopinion“ona questionaffectingthe publicinterestor concerning
the officialdutiesofthe requestingperson”if the auditorhasfirstsubmittedthe questionto the countyor districtattorney
and disagreeswiththe attorney’sresponse.SeeTEX. GOV’T CODE ANN.5 402.042(a)(Vernon2005);see id. $41.007
(Vernon2004)(requiringa “districtor countyattorney,onrequest,[to]giveto a countyor precinctofficialofhis district
or countya writtenopinionor writtenadvicerelatingto”that official’sduties). A countyauditor’sopinionrequest
shouldbe submittedto thecountyor districtattorneyin accordancewithGovernmentCodesection41.007.Ifthe county
or districtattorneyfailsor refusesto answerthe auditor’srequest,or if the countyauditordisagreeswiththe countyor
districtattorney’sopinionor believesthat it conflictswithattorneygeneralopinions,wewill acceptan opinionrequest
directlyfromthe countyauditor.
Mr. Carlos A. Pereda, Jr. - Page 2 (GA-0470)
including law enforcement programs. See id. ln each state, the governor or other chief executive
officer designates a state agency to administer the funds. BUREAUOFJUSTICEASSISTANCE, EDWARD
BYRNEMEMORIALJUSTICEASSISTANCE GRANT(JAG) PROGRAM, FY 2006 STATESOLICITATION
2, available athttp://www.ojp.usdoj.gov/BJA/grant/06JAGStateSol;pdf(lastvisitedOct. 13,2006).
The Texas Governor’s Office, Criminal Justice Division (the “Governor’s Office”)
administers the state’s JAG program. See OFFICEOFTHEGOVERNOR OFTEXAS,CRIMINAL JUSTICE
DIVISION,STATE FUNDS ADMINISTERED BY THE GOVERNOR’SCFWEVALJUSTICEDIVISION,
available at http://www.govemor.state .tx.usldivisionslcjd/files/CJD_Funding_Ses (lastvisited
Oct. 13,2006). The Governor’s Office awarded JAG funds to Operation Linebacker, an initiative
“conceived by the Texas Border Sheriffs Coalition as a means to integrate law enforcement
resources along the border to increase both public safety and national security between points of
entry.” OFFICEOF THEGOVERNOR OF TEXAS,BORDERSECURITYPLANFORTEXAS,available at
http://www.govemor.state.tx.us/priorities/other/border~order-securi~/view (last visited Oct.~13,
2006). Operation Linebacker’s “[kley aspects . include increased patrols and the support of the
local community to enhance border security.” Id.
The Governor’s Office has adopted rules regulating the various grant programs it administers,
including the JAG program. See 1 TEX. ADMIN.CODEch. 3 (2006) (Offrce of the Governor,
Criminal Justice Division, Personnel). Title 1, section 3.75 of the Texas Administrative Code
pertains to the use of grant funds to pay personnel costs. See id. 5 3.75. Subsection (a)(3) prohibits
the use of grant funds to pay “any portion of the salary of, or any other compensation for, an elected
or appointed government official.” Id. § 3.75(a)(3). Subsection (c), as amended effective June 22,
2006, authorizes the use of grant funds to pay overtime if three conditions are satisfied: (1) the
grantee obtains the approval of the Governor’s office; (2) payment of overtime is consistent with the
grantee’s policy; and (3) the use ofthe particular grant funds for overtime payments is not “otherwise
prohibited by law.” Id. 5 3.75(c); see 31 Tex. Reg. 3453,3455 (2006), adopted 3 1 Tex. Reg. 4855,
4856 (2006) (codified at 1 TEX. ADMW. CODE 5 3.75(c)); see also UNITEDSTATESDEP’T
OF JUSTICE, OFFICE OF JUSTICE PROGRAMS,FINANCIALGUIDE 2005 ch. 7, available at
http://www.ojp.usdoj.gov/FinGuide/part3chap7.htm (last visited Oct. 13, 2006) (allowing grant
funds generally to be used to pay overtime to the extent it is consistent with state policies and has
been approved by the state).
Although section 3.75(c) may appear to permit the payment of overtime to a sheriff or
constable, section 3,75(a)(3) prohibits the use of JAG funds to compensate an elected government
official. See 1 TEX. ADMIN.CODE$ 3.75(a)(3) (2006) (Office of the Governor, Criminal Justice ``````````
Division, Personnel). You ask which section applies, and you additionally suggest that county
budgeting requirements pertaining to elected officials’ compensation lead to the conclusion that
section 3.75(a)(3) prevails. You state:
[Ulnder Local Government Code section 152.013(a) the
. Commissioners Court sets the salary and compensation for the elected
official during the budget process and any increase must be properly
Mr. Carlos A. Pereda, Jr. - Page 3 (GA-0470)
published before it can be voted on. Once the salary is set, it may not
be increased or decreased until the following budget process?
Chapter 152, Local Government Code, provides for budgeting county employees’
compensation. See TEX.Lot. GOV’TCODEANN.ch. 152 (Vernon 1999 & Supp. 2006). JAG funds
are not subject to county budgeting requirements. Cf: Tex. Att’y Gen. Op. No. DM-357 (1995) at
6 (concluding that~the county attorney’s hot-check fund is “wholly outside of the county budgeting
process”).
Accordingly, JAG funds may be used as title 1, section 3.75 of the Texas Administrative
Code permits. Subsection (a)(3) states that the Governor’s Office will not “pay any portion of the
salary of, or any other compensation for, an elected or appointed government official.” 1 TEX.
ADMIN.CODE5 3,75(a)(3) (2006) (Office of the Governor, Criminal Justice Division, Personnel).
Under subsection (c), on the other hand, a grantee may use grant funds to pay overtime if three
conditions are satisfied: (1) the grantee obtains the approval of the Governor’s office; (2) payment
of overtime is consistent with the grantee’s policy; and (3) the use of the particular grant funds for
overtime payments is not “otherwise prohibited by law.” Id. 5 3.75(c); see 3 1 Tex. Reg. 3453,3455
(2006), adopted 31 Tex. Reg. 4855,4856 (2006) (codified at 1 TEX.ADMIN.CODE5 3.75(c)). To
date, the Governor’s Of&e has not construed subsection (c) vis-&vis subsection (a). Cf: Phillips
Petroleum Co. v. Tex. Comm’n OIZEnvtl. Quality, 121 S.W.3d 502,507 (Tex. App.-Austin2003,
no pet.) (stating that an administrative agency has the power to interpret its own rules, which
interpretation is controlling unless it is plainly erroneous).
Without the benefit of a construction by the Governor’s Office, we “construe the text of an
administrative rule under the same principles as if it were a statute.” BP Chems., Inc. v. AEP Tex.
Cent. Co., 198 S.W.3d 449, 455 (Tex. App.-Corpus Christi 2006, no pet.) (citing Phillips
Petroleunz Co., 121 S.W.3d at 507). A.court will harmonize statutes to give effect to each unless
the statutes are irreconcilable. See TEX.GOV’TCODEANN. $5 3 11.025(b), .026(a) (Vernon 2005);
see also In ye Univ. of Tex. Health Ctr., 198 S.W.3d 392, 397 (Tex. App.-Tyler 2006, no pet.)
(stating that two rules of civil procedure governing the same subject matter should be harmonized
so that bothmay be effectuated). Mere difference does not constitute an irreconcilable conflict. See
Garcia V.State, 669 S.W.2d 169, 171 (Tex. App.-Dallas 1984, pet. ref d). Irreconcilable conflict
involves a direct conflict such that a person cannot comply with both provisions at the same time.
See Tex. Att’y Gen. Op. No. GA-041 1 (2006) at 2; see also State v. Jackson, 370 S.W.2d 797,800
(Tex. Civ. App.-Houston [lst Dist.] 1963), uf’d, 376 S.W.2d 341’(Tex. 1964) (stating that statutes
cannot be harmonized “only when” they are “directly and irreconcilably in conflict”).
Both subsections (a)(3) and (c) apply to the use of JAG funds. Subsection (a)(3) prohibits
the use of JAG funds to compensate an elected or appointed government official, while subsection
(c)permits the use of JAG funds to pay overtime in certain circumstances. Compare 1 TEX.ADMIN.
CODE3 3.75(a)(3) (2006) (Office of the Governor, Criminal Justice Division, Personnel), with id.
5 3.75(c). They can be harmonized by construing subsection (a)(3) to apply to the use of JAG funds
‘JanuaryPeredaLetter,supranote 1,at I,
Mr. Carlos A. Pereda, Jr. - Page 4 (GA-0470)
for elected or appointed officials and subsection (c)to apply to the use of such funds for employees.
Thus, JAG funds may not be used to compensate sheriffs and constables.
You finally ask whether a constable who works as a deputy sheriff may be paid on an hourly
basis for work performed as a deputy sheriff. See Request Letter, supra note 1, at 1. This office
recently determined in Attorney General Opinion GA-0402 that neither article XVI, section 40 of
the Texas Constitution, which prohibits a person from simultaneously holding multiple civil offices
of emolument, nor the common-law doctrine of incompatibility precludes an elected constable from
simultaneously serving as a deputy sheriff. See Tex. Att’y Gen. Op. No. GA-0402 (2006) at 2; see
also TEX.CONST.art; XVI, 5 40. But Attorney General Opinion GA-0402 does not consider whether
a constable who simultaneously serves as a deputy sheriff may be paid for service as a deputy sheriff,
in addition to receiving a salary for service as constable. See generally Tex. Att’y Gen. Op. No.
GA-0402 (2006).
In our opinion, a constable working as a deputy sheriff may be compensated, over and above
the compensation the constable receives as a constable, for work as a deputy sheriff. A sheriff is free
to select persons to fill deputy positions that have been approved by the commissioners court. See
Abbottv. Pollock, 946 S.W.2d 513,517 (Tex. App.-Austin 1997, writ denied); Comm’rs Court of
Shelby County Y.Ross, 809 S.W.2d 754,756 (Tex. App.-Tyler 1991, no writ); see also TEX.LOC.
GOV'T CODE ANN. 3 151.003 (Vernon 1999) (directing that after a commissioners court has
approved an offtcer’s request for employees, the officer may appoint them). So long as the county’s
annual budget appropriates compensation, including overtime compensation, for the sheriffs
deputies, a deputy sheriff, including a deputy sheriff who is also a constable, may be compensated
for serving as a deputy sheriff.
Mr. Carlos A. Pereda, Jr. - Page ~5 (GA-0470)
SUMMARY
In accordance with title 1, section 3.75(a)(3) of the Texas
Administrative Code, a county may not use Justice Assistance Grant
funds to compensate its sheriff or constable for overtime.
A constable may be paid an additional amount, including
overtime, for serving as a deputy sheriff if the county budget provides
overtime compensation for deputy sheriffs.
Very truly yours,
/ GREWBOTT
Attorney General of Texas
KENT C. SULLIVAN
First Assistant Attorney General
ELLEN L. WITT
Deputy Attorney General for Legal Counsel
NANCY S. FULLER
Chair, Opinion Committee
Kymberly K. Oltrogge
Assistant Attorney General, Opinion Committee