Untitled Texas Attorney General Opinion ( 1988 )

.
P
THE ATTOBZSEY GENERAL
OP TEXAS
Honorable Charles E. Lance Opinion No. JM-839
'County and District
Attorney Re: Whether a commissioners
Milam County Cou'rthouse court may reduce the salary
Cameron, Texas 76520 of a county attorney below
an amount previously approved
(RQ-1232)
Dear Mr. Lance:
you ask whether the commissioners court of Milam
County may eliminate or reduce the salary of the Milam
County Attorney below the amount approved in the annual
budget.
.Senate Bill 162 (now section 45.26b of the Government
Code) Acts 1987, 70th Leg., ch. 34, ~51, at 137, effective
September 1, 1987 provides:
(a) For rewresentina the state before the
district court in Milam Countv. the countv
attornev of Milam Countv is entitled to be
comwensated bv the state in the same manner
and amount as wrovided bv aeneral law for
district attornevs. The commissioners court
of Milam Countv mav also comwensate the
countv attornev in an amount it considers
advisable.
lb) The countv attornev of Milam Countv
is entitled to receive from the state an
amount for the wavment of staff salaries and
gffice exwenses eaual to the amount wrovided
in the General Awwrowriations Act to be waid
for those wurwoses to a district attornev
P who serves a sinale county.
_Ic) If the countv attornev of Milam
Countv receives compensation or exwenses
from the state under this Act, Milam Countv
p. 4044
Honorable Charles E. Lance - Page 2 (JM-839)
is not entitled to receive funds under
Subchawter C, Chawter 41. Government Code. -,_
The bill analysis to Senate Bill 162 (now section
45.266 of the Government Code) states:
BACKGROUND
Currently, the County Attorney of Milam
County is not funded by the state as a
felony prosecutor. The county attorney's
office does receive funds for staff and
expenses incurred when preparing cases for
district court, but no salary compensation
is included for the attorney.
PURPOSE .
S.B. 162 would correct a historical
oversight and would authorize the county
attorney of Milam County to be paid by the
State as all other felony prosecutors in the
state are paid.
SECTION-BY-SECTION ANALYSIS
SECTION 1. Amends Subchapter B, Chapter
45, Government Code by adding Section 45.266
which (a) allows the county attorney of
Milam County to be compensated by the state
when representing the state before the dis-
trict court in Milam County: (b) Entitles
the county attorney's office to receive from
the state payment for staff salaries and
office expenses equal to the amount paid to
a district attorney serving a single county;
(c) Prohibits Milam County from receiving
funds under Subchapter C, Chapter 41, Gov-
ernment Code if county attorney is compen-
sated under this Act.
Bill Analysis to S.B. No. 162, 70th Leg. (1987), on file
in Legislative Reference Library.
Subchapter C, chapter 41 of the Government Code
applies to a county attorney performing the duties of a
district attorney. It provides that on the first day of
September, January, and May of.each fiscal year an amount
is to be paid by the state into the officer's salary fund . -,
p. 4045
Honorable Charles E. Lance - Page 3 W-839)
of that county.1 The amount of payment is determined by
the population of the county.
Information furnished by you reflects that following
the annual budget hearing, held pursuantto section 2 of
former article 3912k, V.T.C.S. (now section 152.013 of the
Local Government Code), the budget approved by the
commissioners court of Milam County for 1987 provided for
a salary for the county attorney in the amount of
$24,798.66.2 You state thza; o;it;Iz;st 17, 1;:' y;;e
commissioners court met, notice
eliminated the salary for the' office and agreed to pay
$150.00 per month for travel expenses for the county
attorney.
You suggest that the commissioners court may not
reduce the salary of a county attorney below the amount
set at the annual budget hearing until the next annual
budget hearing.
In Attorney General Opinion H-643 (1975) it was
concluded that the commissioners court of Grayson County
could not reduce the salary of a county attorney below the
amount set at the.annual budget hearing until the follow-
ing fiscal year. The facts in that opinion are similar to
the scenario you have outlined in that the Grayson County
Attorney performed the duties of the district attorney and
received compensation from the state equal to the compen-
sation paid by the state to district attorneys under then
1. Under the General Appropriations Act, Acts 1987,
70th Leg., 2d C-S., ch. 78, art. IV, at 1037, district
attorneys not prohibited from practicing law (applies to
Milam County) are compensated by the state at $44,342
(1988) and $44,342 (1989). Milam County's population
(22,732) resulted in the county receiving a total of
$1,136.60 in payments from the state each year. (Section
41.203(b)(3), Government Code provides for 5 cents per
capita for a county with a population of more than 19,000
and not more than 75,000).
2. Under the General Appropriations Act, Acts 1987,
70th Leg., 2d C.S., ch. 78, art. IV, at 1037, district
attorneys not prohibited from practicing law (applies to
Milam County) are compensated by the state at $44,342
(1988). and $44,342 (1989).
p. 4046
Honorable Charles E. Lance - Page 4 W-839)
article 33233, V.T.C.S. (Grayson County Attorney is now
governed by the Professional Prosecutors Act under chapter -
46 of the Government Code). The statute also provided
that the county may pay "such additional amount which the
commissioners court of the county in its discretion fixes
as adequate compensation." Following the approval of the
annual budget, the commissioners court reduced the amount
of compensation the county was paying the county attorney.
In Attorney General Opinion JM-326 (1985), it was
stated that the commissioners court could not reduce the
salary Wichita County paid its county attorney pursuant to
then sections 1 and 2 of article 3912k, V.T.C.S. (now
sections 152.012 and 152.013 of the Local Government Code)
from the amount approved at the annual budget hearing and
budget adoption proceeding. In JM-326 it was stated:
In most counties, the commissioners court
must approve the yearly operating budget for
the county at an annual budget hearing and
may amend the budget to allow emergency
expenditures in times of grave public neces-
sity. V.T.C.S. art. 689a-11. The commis-
sioners court may also make 'changes in the
budget for coun~ty purposes.' V.T.C.S. art.
689a-20.
The general rule derived from the afore-
mentioned authorities was summarized in
Attorney General Opinion H-11 (1973):
In most situations amendments to a
county budget will have to meet the
requirements of Article 689a-11, V.T.C.S.
Whether circumstances exist which will
warrant an amendment to the budget will
be a question of fact in each case.
This rule, however, assumes a different
tenor when applied to the salaries of county
officers and employees contained in the
annual county budget:
[A]s to salaries of county officers and
employees, the rule has been impliedly
amended by the enactment, in 1971, of
Article 3912k. . . .
Attorney General Opinion H-11 (1973).
p. 4047
Honorable Charles E. Lance - Page 5 UM-839)
Article 3912k, V.T.C.S., establishes
guidelines to be observed by the
commissioners court when setting the
salaries of certain county officials and
employees. It contains the following
pertinent provisions:
Section 1. Except as otherwise
provided by this Act and subject to the
limitations of this Act, the commis-
sioners court of 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 from county funds, but in no event
shall such salaries be set lower than
they exist at the effective date of this
Act.
. . . .
,- Sec. 2. (a) The salaries, expenses,
and ether allowances of ~electnd co-
and sreci net officgrs~ shall be set.---GGh
mdurina the r*aular budact heam
and adootion wroced&s on aivino notice
as wrvcthis. (Emphasis
added.)
In Attorney General Opinion H-11 (1973), it
was stated that section 2 'applies only to
elected county and precinct officers, [and1
requires that their salaries be set during
the regular budget hearing.' (Emphasis
added.) The opinion further noted that
because section 1 oE article 3912k imposes
no similar limitation on the authority of
the commissioners court to fix salaries of
non-elected employees and officials, these
salaries
may be fixed at times @ther than during
the regular budget hearing. To the
extent that this is inconsistent with
Article 689a-11, Article 3912k furnishes
an implied exception thereto.
p. 4048
Honorable Charles E. Lance - Page 6 (JM-839)
Attorney General opinion H-11 (1973)
(citations omitted). It is clear that since
the county attorney is an elected official,
see Tex. Const. art. V, 521, the salary for
that office may be considered and adopted
only during the regular, annual budget
hearing and adoption proceedings. V.T.C.S.
art. 3912k, 52(a). Cf. Attorney General
Opinion JM-313 (1985).
The commissioners court of Milam County is without
authority to eliminate or reduce the salary of the county
attorney below the amount fixed at the regular budget
hearing for the year.
You also ask whether the commissioners court may
eliminate the amount of compensation paid by the county
for the county attorney. Subsection (a) of Senate Bill
162 provides that the commissioners court mav also
comwensate the county attorney in an amount it considers
advisable.
In Bloom v. Texas State Board of Examiners of
Psvcholoaists, 475 S.W.2d 374, 377 (T&x. Civ. APP. -
Austin 1972), rev'd on other arounds, 492 S.W.Zd 460 (Tex.
1973) the appellate court, in construing the word "may, "
stated:
The word 'may' ordinarily implies a
permissive and discretionary force.
Webster's New International Dictionary,
Second Edition. It'will not be treated as a
word of command unless there is something in
the context or subject matter of the act to
indicate that it was used in that sense.
Rains v. Herrinq, 68 Tex. 468, 5 S.W. 369
(1887).
There is nothing in subsection (a) of section 45.266
of the Government Code to suggest that the word *'may'* is
to be treated as a word of command. Whether the
commissioners court may eliminate the amount of
compensation paid the county attorney by the county is a
matter left to the discretion of the commissioners court
to be determined at the regular annual budget hearings for
the years following the effective date of this act.
p. 4049
Honorable Charles E. Lance - Page 7 (JM-839)
SUMMARY
The commissioners court is without
authority to reduce the salary of the county
attorney set pursuant to section 2 of
article 3912k, V.T.C.S. (now section 152.013
of the Local Government Code), from the
amount approved at the annual budget hearing
and budget adoption proceedings. Whether
the commissioners court of Milam County may
elminate the amount of compensation paid the
county attorney by the county is a matter
left to the discretion of the commissioners
court at the regular annual budget hearings
following'the effective date of Senate Bill
162 (now section 45.266 of the Government
Code) Acts 1987, 70th Leg., ch. 34, 51, at
137, effective September 1, 1987.
JIM MATTOX
Attorney General of Texas
MARY KELLER
Executive Assistant Attorney General
JUDGE ZOLLIE STEAKLEY
Special Assistant Attorney General
RICK GILPIN
Chairman, Opinion Committee
Prepared by Tom G. Davis
Assistant Attorney General
p. 4050