Who sets assistant county auditor salaries in Texas, the district judges or the commissioners court?

Plain-English summary

Richard Countiss, the San Jacinto County District Attorney, asked the Attorney General who controls the pay of an assistant county auditor when the commissioners court and the district judges disagree. The county auditor's proposed budget had re-designated an administrative assistant as an assistant auditor and raised that position's salary by $1,664. Before adopting the annual budget, the commissioners court changed the title back to "Administrative Assistant" and cut the salary to its original amount. The district judges then signed an order approving the auditor's proposed budget, with the new title and the higher salary. That left two competing versions, and the District Attorney wanted to know which one governed.

The AG explained that Chapter 84 of the Local Government Code sets up the county auditor as an independent officer appointed and removed by the district judges, part of a checks-and-balances design meant to protect county funds. Under section 84.021, the county auditor applies for assistant auditors, the district judges decide whom to appoint and what salary to pay, and the judges certify that list to the commissioners court, "which shall order the salaries to be paid on the performance of services." The power to appoint assistants and set their salaries belongs solely to the district judges. The AG added that this does not change just because the increase came after the budget was adopted: a district judge may, during the budget year, direct a change in the county budget to raise assistant auditor salaries, so long as the auditor properly applies to the district court, the change stays within the county's anticipated revenue, and any budget amendment follows the law. When those steps are met, the commissioners court has a ministerial duty to pay the salaries the district judges set.

On the second question, the AG looked at whether the judges' order failed because it listed only job titles, not the appointees' names. The statute requires the county auditor to include the name of an assistant auditor in the proposed list it sends up to the district judges, but section 84.021 does not impose that same naming requirement on the list the district judges certify down to the commissioners court. So an order certifying the appointment of assistant auditors is not invalid merely because it identifies positions by title instead of by name.

Currency note

This opinion was issued in 2014. Subsequent statutory amendments, court decisions, or later Attorney General 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.

What the opinion meant for those who asked

The San Jacinto County District Attorney (as the opinion described it): The opinion answered that section 84.021 requires the commissioners court to order the salaries of assistant county auditors, as properly certified by the district judges, to be paid on the performance of services, and that the judges' certification need not list the appointees by name.

Commissioners courts (as the opinion described it): The opinion described the commissioners court's role as ministerial once the auditor and district judges follow the statutory procedures: it must order the certified salaries paid, and a post-budget-adoption increase directed by the district judges does not change that, provided the change stays within anticipated revenue and complies with budget-amendment law.

County auditors and district judges (as the opinion described it): The opinion described the power to appoint assistant auditors and set their salaries as belonging solely to the district judges, with the auditor applying for assistants and including their names, and the district judges certifying the appointees and salaries to the commissioners court without a statutory duty to include names.

Common questions

Who decides how much an assistant county auditor is paid in Texas?
The district judges, under this opinion. The AG explained that the power to appoint assistant auditors and set their salaries is given solely to the district judges, not the commissioners court.

Does the commissioners court have to pay a salary increase the district judges approved after the budget passed?
Yes, if the steps were followed. The AG explained that a district judge may direct a budget change during the year to raise assistant auditor salaries, and the commissioners court then has a ministerial duty to pay, as long as the change stays within anticipated revenue and follows budget-amendment law.

Can the commissioners court override the district judges by changing a job title back?
The opinion treated the district judges' certified appointment and salary as controlling. It did not give the commissioners court power to set the assistant auditor's salary by re-designating the position; the court's duty was to pay what the judges properly certified.

Is the judges' order invalid if it lists only titles, not names?
No. The AG explained that section 84.021 does not require the district judges to include the names of appointees in the list they certify to the commissioners court, so an order is not invalid merely for omitting names.

What statute governs assistant county auditor appointments and pay?
Section 84.021 of the Local Government Code, part of Chapter 84, which the AG identified as governing the appointment and compensation of county auditors and assistant auditors.

Background and statutory framework

Chapter 84 of the Local Government Code governs the appointment and compensation of county auditors and assistant auditors (Tex. Loc. Gov't Code Ann. §§ 84.001-.902 (West 2008 & Supp. 2013)). The county auditor is an independent officer appointed and removed by the district judges as part of a checks-and-balances design to protect county funds (id. § 84.003 (West 2008); Tex. Att'y Gen. Op. No. GA-0618 (2008) at 2; Smith v. McCoy, 533 S.W.2d 457, 459 (Tex. Civ. App.-Dallas 1976, writ dism'd)). Section 84.021 lets the auditor apply for assistant auditors and has the district judges prepare a list of appointees and salaries, which they certify to the commissioners court, "which shall order the salaries to be paid on the performance of services" (id. § 84.021(a) (West 2008)).

The AG relied on prior opinions holding that the power to appoint assistant auditors and set their salaries is given solely to the district judges, and that a district judge may direct a mid-year budget change to increase those salaries, subject to a proper application, the anticipated-revenue limit, and budget-amendment law (Tex. Att'y Gen. Op. No. JC-0361 (2001) at 3; Duncan v. Pogue, 759 S.W.2d 435 (Tex. 1988); Tex. Att'y Gen. Op. No. JM-49 (1983) at 2 (citing article 1650 of the Revised Civil Statutes, the predecessor to section 84.021)). When the statutory procedures are followed, the commissioners court is under a ministerial duty to pay the certified salaries (Mays v. Fifth Court of Appeals, 755 S.W.2d 78, 79 (Tex. 1988)). The AG read section 84.021 to require the auditor, but not the district judges, to include appointees' names, so the judges' certification is not invalid for listing only titles (Tex. Loc. Gov't Code Ann. § 84.021(a) (West 2008)).

Citations

Statutory provisions:

• Tex. Loc. Gov't Code Ann. §§ 84.001-.902 (West 2008 & Supp. 2013) (Chapter 84, county auditors and assistant auditors)
• Tex. Loc. Gov't Code Ann. § 84.003 (West 2008) (appointment of county auditor by district judges)
• Tex. Loc. Gov't Code Ann. § 84.021(a) (West 2008) (appointment, certification, and payment of assistant auditors)
• Tex. Rev. Civ. Stat. art. 1650 (predecessor to section 84.021)

Cases:

• Smith v. McCoy, 533 S.W.2d 457, 459 (Tex. Civ. App.-Dallas 1976, writ dism'd)
• Duncan v. Pogue, 759 S.W.2d 435 (Tex. 1988)
• Mays v. Fifth Court of Appeals, 755 S.W.2d 78, 79 (Tex. 1988)

Prior Attorney General opinions:

• Tex. Att'y Gen. Op. No. GA-0618 (2008)
• Tex. Att'y Gen. Op. No. JC-0361 (2001)
• Tex. Att'y Gen. Op. No. JM-49 (1983)

Source

• Landing page: https://www.texasattorneygeneral.gov/opinions/greg-abbott/ga-1062
• Original PDF: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/2014/ga1062.pdf

Original opinion text

Best-effort transcription from the official PDF. Minor extraction artifacts were corrected; the linked PDF is authoritative.

ATTORNEY GENERAL OF TEXAS
GREG 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 explain a situation where the county auditor's proposed annual budget designated an administrative assistant 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." Id. The district judges in the county then "signed an order approving the Auditor's [proposed] budget" with the redesignation and increased salary. Id. 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"?

Id. 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 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 (2001) at 3 (citing Duncan v. Pogue, 759 S.W.2d 435 (Tex. 1988)). The fact that the increase in the salary of the 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 of the 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 commissioners court believes that the district judges did not comply with the requirements of section 84.021 because they "did not list the names of 'the appointees', but rather just their titles." Id. at 2. While 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 CODE ANN. § 84.021(a) (West 2008). Thus, an order from the district judges to the county commissioners certifying the appointment of assistant auditors is not invalid merely because it does not include the specific names of appointees.

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.

Very truly yours,

GREG 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

[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.texasattorneygeneral.gov/opin ("Request Letter").