Do health insurance and a car allowance count as pay for a Texas city's mayor and council under the city charter?

TX AG Opinion GA-0449: Are health insurance and car allowances "compensation" for city officials?

Plain-English summary

The Cameron County District Attorney asked the Attorney General whether health insurance premium payments and car allowances given to the mayor and city commissioners of Brownsville count as "compensation" under the Brownsville City Charter. The charter provision at issue, dating to 1943, says the mayor and commissioners "shall each receive as compensation for their services" ten dollars for attending each regular or special meeting, capped at two regular and three special meetings a month. The practical worry was whether paying for officials' health insurance and giving them car allowances would run afoul of that provision.

The Attorney General split the question into two parts. On the general legal meaning of "compensation," the office gave a clear answer. Drawing on a prior opinion and Texas case law, it explained that "compensation" includes benefits like insurance, and that car allowances raise the related concept of an "emolument," which courts have defined as any pecuniary profit, gain, or advantage. The office has long treated fixed travel payments that exceed actual expenses as emoluments. So health insurance premium payments, and fixed-amount car allowances that go beyond reimbursing actual costs, do constitute "compensation."

On the part that mattered most for Brownsville, though, the office declined to decide. As a matter of consistent practice, the Attorney General does not construe city charters and ordinances, leaving that to the municipal officials who administer them. So whether providing these benefits actually contravenes the Brownsville charter "depends on how the charter provision is construed," and that interpretation is for Brownsville's officials, not the Attorney General. The office did lay out the two possibilities: if the charter is read as limiting the mayor's and commissioners' compensation to ten dollars per meeting, then the city may not provide any additional compensation in any form; if the charter is not read as a cap, the city may provide the additional benefits. Which reading is correct was left to the city.

Currency note

This opinion was issued in 2006. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

The Brownsville City Charter may have been amended since 2006, and the constitutional and statutory authorities the opinion cited may have changed. Anyone analyzing what a city may pay its elected officials should check the current charter text and current law rather than rely on the provisions described here.

Who this opinion affected (as of 2006)

Cities and their elected officials: The opinion told them that, as a general legal matter, employer-paid health insurance and fixed car allowances exceeding actual expenses count as "compensation" or "emoluments," not merely incidental perks.

Brownsville's mayor and city commissioners: The opinion did not resolve whether their charter allowed these benefits. It expressly left the interpretation of the $10-per-meeting charter provision to Brownsville's municipal officials.

The requesting district attorney and municipal officials generally: The opinion provided the framework (benefits are compensation; the charter question is the city's to construe) without making the charter determination for them.

Common questions

Do health insurance payments count as compensation for city officials?
Yes, as a general matter. The opinion stated that "compensation" includes benefits such as insurance, so paying an official's health insurance premiums is a form of compensation.

What about a car allowance?
The opinion explained that a fixed car allowance exceeding actual expenses is an "emolument," meaning a pecuniary gain or advantage, and therefore also constitutes compensation. Reimbursement limited to actual expenses is treated differently.

Did the Attorney General decide whether Brownsville could pay these benefits?
No. The office declined to interpret the Brownsville City Charter, explaining that it does not construe city charters and that the decision belongs to the appropriate municipal officials.

What turns on how the charter is read?
The opinion laid out two outcomes: if the charter limits compensation to $10 per meeting, the city may not add any compensation in any form; if the charter is not a cap, the city may provide the benefits. Choosing between those readings was left to the city.

Background and statutory framework

The charter provision sets the mayor's and commissioners' compensation at ten dollars per meeting, capped monthly (Brownsville, Tex., City Charter, art. V, § 13 (1943)). The office ordinarily defers to municipal officials on charter interpretation (Tex. Att'y Gen. Op. Nos. GA-0130 (2003) at 3, GA-0068 (2002) at 2 n.2). On the meaning of "compensation," it relied on prior analysis that the term includes benefits such as insurance (Tex. Att'y Gen. Op. No. GA-0130 (2003) at 2 (citing Friedman v. Am. Sur. Co., 151 S.W.2d 570, 578 (Tex. 1941)); Black's Law Dictionary 277 (7th ed. 1999)). For car allowances, courts construe "emolument" under Texas Constitution article XVI, section 40(a) to mean any pecuniary profit, gain, or advantage (Irwin v. State, 177 S.W.2d 970, 973 (Tex. Crim. App. 1944), rejected on other grounds by Angel v. State, 740 S.W.2d 727 (Tex. Crim. App. 1987)), and the office has treated fixed travel payments exceeding actual expenses as emoluments (Tex. Att'y Gen. Op. Nos. GA-0032 (2003) at 1-2, JC-0490 (2002) at 1, JM-1266 (1990) at 3). The office concluded these benefits are compensation but, applying the same approach as GA-0130, left the charter construction to Brownsville's officials.

Citations

Authorities:

• Brownsville, Tex., City Charter, art. V, § 13 (1943)
• Tex. Const. art. XVI, § 40(a)

Cases and prior opinions:

• Friedman v. Am. Sur. Co., 151 S.W.2d 570, 578 (Tex. 1941)
• Irwin v. State, 177 S.W.2d 970, 973 (Tex. Crim. App. 1944), rejected on other grounds by Angel v. State, 740 S.W.2d 727 (Tex. Crim. App. 1987)
• Tex. Att'y Gen. Op. Nos. GA-0130 (2003), GA-0068 (2002), GA-0032 (2003), JC-0490 (2002), JM-1266 (1990)
• Black's Law Dictionary 277 (7th ed. 1999)

Source

• Landing page: https://www.texasattorneygeneral.gov/opinions/greg-abbott/ga-0449
• Original PDF: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/2006/ga0449.pdf

Original opinion text

Best-effort transcription from a scanned PDF. Minor errors may remain - the linked PDF is authoritative.

ATTORNEY GENERAL OF TEXAS
GREG ABBOTT

August 15, 2006

The Honorable Armando R. Villalobos
Cameron County District Attorney
974 East Harrison
Brownsville, Texas 78520

Opinion No. GA-0449

Re: Whether premium payments for health insurance and car allowances provided to the mayor and city commissioners of Brownsville constitute "compensation" for purposes of the Brownsville City Charter (RQ-0445-GA)

Dear Mr. Villalobos:

You ask whether premium payments for health insurance and car allowances provided to the mayor and city commissioners of Brownsville constitute "compensation" for purposes of the Brownsville City Charter.

The charter provision in question states as follows:

The mayor and city commissioners elected after the adoption of this amendment shall each receive as compensation for their services during their term of office the sum of ten dollars ($10.00) for their attendance for the full duration of each regular or special meeting; provided, however, that in no event shall they be paid for more than two regular and three special meetings in any one calendar month.

BROWNSVILLE, TEX., CITY CHARTER, art. V, § 13 (1943); Request Letter, supra note 1, at 1. In deference to municipal officials' authority to interpret their charters and ordinances, this office does not ordinarily construe city charters or ordinances. See Tex. Att'y Gen. Op. Nos. GA-0130 (2003) at 3; GA-0068 (2002) at 2 n.2. We can, however, offer some general observations that may assist you in your interpretation.

In Attorney General Opinion GA-0130, we advised that the word "'compensation' includes benefits, such as insurance, provided to officers and employees." Tex. Att'y Gen. Op. No. GA-0130 (2003) at 2 (citing Friedman v. Am. Sur. Co., 151 S.W.2d 570, 578 (Tex. 1941)). "Compensation" has been defined as "[r]emuneration and other benefits received in return for services rendered." BLACK'S LAW DICTIONARY 277 (7th ed. 1999). With regard to car allowances, Texas courts have construed the word "emolument," for purposes of article XVI, section 40(a) of the Texas Constitution, to mean any "pecuniary profit, gain, or advantage." Irwin v. State, 177 S.W.2d 970, 973 (Tex. Crim. App. 1944), rejected on other grounds by Angel v. State, 740 S.W.2d 727 (Tex. Crim. App. 1987). This office has long and consistently construed the term "emolument" to embrace reimbursements that exceed actual expenses, including fixed payments for travel in privately-owned vehicles. See Tex. Att'y Gen. Op. Nos. GA-0032 (2003) at 1-2; JC-0490 (2002) at 1; JM-1266 (1990) at 3. Thus, premium payment for health insurance, as well as fixed-amount car allowances that exceed actual expenses, constitute "compensation."

With regard to the charter provisions at issue here, we adopt the same approach as we did in Opinion GA-0130. Whether the provision of health insurance benefits and car allowances not tied to actual expenses contravene the charter "depends on how the charter provision . . . is construed." Tex. Att'y Gen. Op. No. GA-0130 (2003) at 3. As we said there, if the city charter is construed to limit the mayor's and commissioners' compensation to the sum of ten dollars per meeting, the city may not provide any additional compensation in any form whatsoever. See id. at 2-3. If, on the other hand, the charter is not construed as a limit on their compensation, the city may provide the additional compensation of which you inquire. Because, as we have indicated, we do not construe city charters, the decision as to the proper interpretation of this particular charter provision must be left to the discretion of the appropriate municipal officials. See Tex. Att'y Gen. Op. No. GA-0130 (2003) at 3.

SUMMARY

Premium payments for health insurance and car allowances provided to municipal officials constitute "compensation." Because the attorney general does not construe city charters, the issue of whether such compensation may be provided to the mayor and city commissioners of Brownsville is within the discretion of municipal officials.

Very truly yours,

GREG ABBOTT
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

Rick Gilpin
Assistant Attorney General, Opinion Committee

Footnotes

1. See Letter from Honorable Armando R. Villalobos, Cameron County District Attorney, to Honorable Greg Abbott, Attorney General of Texas (Feb. 3, 2006) (on file with the Opinion Committee, also available at http://www.oag.state.tx.us) [hereinafter Request Letter].

2. Available at http://citysecretary.cob.us/city_charter.asp (last visited Aug. 3, 2006).