Untitled Texas Attorney General Opinion ( 2014 )

GREG
0
ATTORNEY GENERAL OF TEXAS
ABBOTT
May 27,2014
The Honorable Richard N. Countiss Opinion No. GA-1062
San Jacinto County District Attorney
1 State Highway 150, Room #21 Re: Salary increases for assistant auditors
Coldspring, Texas 77331-0403 and administrative assistants after passage of
the county budget (RQ-1170-GA)
Dear Mr. Countiss:
You ask two questions concerning assistant county auditor salaries and amendments to
the county budget to increase those salaries. 1 You expJain a situation where the county auditor's
proposed annual budget designated an admini trative assjstant as an assistant auditor and
increased the salary of that position by $1,664.00. Request Letter at 2. Before passing the
annual county budget, the commissioners court "changed the title of the position back to
'Administrative Assistant' and reduced the salary to the original amount." !d. The district
judges in the county then "signed an order approving the Auditor's [proposed] budget" with the
redesignation and increased salary. !d. In your first question you ask:
Is the commissioners court under a duty to adopt a budget
amendment to reflect an increase in the salary of an Assistant
Auditor granted by the District Court Judges after the county's
budget has been adopted and where the adopted budget designated
the employee as an "Administrative Assistant" rather than an
"Assistant Auditor"?
!d. at 1.
Chapter 84 of the Local Government Code governs the appointment and compensation of
county auditors and assistant auditors. See TEX. Loc. Gov'T CODE ANN. §§ 84.001-.902 (West
2008 & Supp. 2013). Although a commissioners court generally manages the business of the
county, the county auditor is "an independent officer appointed and removed by the district
1
See Letter from Honorable Richard N. Countiss, San Jacinto Cnty. Dist. Att'y, to Honorable Greg Abbott,
Tex. Att'y Gen. at 1 (Nov. 19, 2013), http://www.texasattomeygeneral.gov/opin ("Request Letter").
The Honorable Richard N. Countiss - Page 2 (GA-1062)
judges" as "part of the 'delicate ·system of checks and balances' designed to protect county
funds." Tex. Att'y Gen. Op. No. GA-0618 (2008) at 2 (quoting Smith v. McCoy, 533 S.W.2d
457, 459 (Tex. Civ. App.-Dallas 1976, writ dism'd)); see TEx. Loc. Gov'T CODE ANN.
§ 84.003 (West 2008) (providing for appointment of county auditor by district judges). Section
84.021 authorizes the county auditor to request assistant auditors and establishes a procedure for
the district judges to appoint them. TEX. Loc. Gov ' T CoDE ANN. § 84.021(a) (West 2008).
Upon consideration of the application for appointment of assistants and inquiry into the
information included therein, the district judges "shall prepare a list of the appointees ... and the
salary to be paid each." Id. "The judges shall certify this list to the commissioners court, which
shall order the salaries to be paid on the performance of services." Id. (emphasis added).
"The power to make the appointments [of assistant auditors] and set the salaries . . . is
given solely to the district judges." Tex. Att'y Gen. Op. No. JC-0361 (200 1) at 3 (citing Duncan
v. Pogue, 759 S.W.2d 435 (Tex. 1988)). The fact that the increase in the salary ofthe assistant
auditor has occurred after the county' s budget adoption does not change the analysis. "[T]he
district judge may, during the course of the budget year, direct a change in the county budget [to
increase] the salaries ofthe assistants in the county auditor's office." Tex. Att'y Gen. Op. No.
JM-49 (1983) at 2 (citing article 1650 of the Revised Civil Statutes, the predecessor statute to
section 84.021 ). "Such change may be made: (1) upon a proper application made by the auditor
to the district court; (2) only if such action does not require county expenditures in excess of
anticipated revenue of the county for that year; and (3) only if amendment of the county budget
is made in compliance with the law." Id. Accordingly, provided that the auditor and district
judges have followed the appropriate statutory procedures, "the commissioners court is under a
ministerial duty" to pay the assistant auditor salaries designated by the district judges. Tex. Att'y
Gen. Op. No. JC-0361 at 3 (citing Mays v. Fifth Court of Appeals, 755 S.W.2d 78, 79 (Tex.
1988)).
In your second question, you ask:
Whether the Order signed by the District Court Judges that
changed the employee's designation to "Assistant Auditor" and
increased the salary for that position complied with section 84.021
of the Texas Local Government Code, and if said Order did not
comply with section 84.021, is the Order invalidated such that the
commissioners court does not have to pay the salary increase?
Request Letter at 1. You explain that the commiss ioners cour t believes that the district judges
did not comply with the requirements of section 84.02 1 because they "did not list the names of
'the appointees', but rather just their titles." Id. at 2. Whil the county auditor must include the
name" of an assistant auditor in its proposed list of appointees to the district judges, the express
language of section 84.021 does not similarly require the district judges to include the names of
appointees in the list they certify to the commissioners court. TEX. Loc. Gov T Coo ' Al\lN.
§ 84.021(a) (West 2008). Thus, an order from the district judges to the co unty commissioners
certifying the appointment of assistant auditors is not invalid merely because it does not include
the specific names of appointees.
The Honorable Richard N. Countiss - Page 3 (GA-1062)
SUMMARY
Section 84.021 of the Local Government Code requires a
commissioners court to order the salaries of assistant county
auditors, as properly certified by the district judges of the county,
to be paid on the performance of services.
Section 84.021 does not require district judges to include
the names of assistant auditors in the list of appointees they certify
to the county commissioners court under that provision.
EG ABBOTT
Attorney General of Texas
DANIEL T. HODGE
First Assistant Attorney General
JAMES D. BLACKLOCK
Deputy Attorney General for Legal Counsel
VIRGINIA K. HOELSCHER
Chair, Opinion Committee
Virginia K. Hoelscher
Assistant Attorney General, Opinion Committee