Can a Texas county pay its commissioners different salaries, and can a commissioner give part of his salary back to the county?

Texas AG Opinion JM-1019: Can County Commissioners Be Paid Different Salaries?

Plain-English summary

The Uvalde County Attorney sent the Attorney General a tight list of five practical questions about paying county commissioners. Together they add up to one real-world problem: how much room does a commissioners court have to set, cut, or waive commissioner pay?

On the first question, whether all commissioners must be paid the same, the answer was no. A commissioners court may pay commissioners of different precincts different salaries, but only if unusual circumstances in each precinct reasonably require the difference and each salary is itself reasonable. The Attorney General leaned on cases about other precinct officers (justices of the peace and constables) and reasoned that the same standard applies to commissioners. He pointed out one realistic source of a genuine difference: in counties where commissioners serve as ex officio road commissioners for their precincts, the road-and-bridge workload can vary enough between precincts that a pay difference might be justified. In the end, though, what counts as a reasonable salary is a question of fact left to the court's discretion.

On lowering pay, the court can do it, but not whenever it likes. Section 152.013 of the Local Government Code bars the court from lowering the salary of a county or precinct officer until the regular annual budget hearing. So the court cannot vote midyear to cut commissioner pay and immediately amend the budget to match; it has to wait for the budget hearing. And there is a floor: section 152.012 says a salary cannot be set below the amount in effect on January 1, 1972.

The last two questions were about a commissioner voluntarily taking less. A commissioner cannot simply elect to be paid less than the court sets, because setting the compensation is the court's job, not the individual officer's. And a commissioner cannot take the full salary and then hand a portion back to the county as a gift. The reason is a bedrock rule of Texas county law: a county has only the powers the Constitution and statutes give it, and the Legislature never authorized a county to accept a donation from a commissioner. Without that authority, the county cannot accept the gift. (The opinion did note a separate statutory path, section 152.052, that lets an elected county officer file an affidavit electing not to be paid at all, which stops the paycheck at the source rather than routing money back to the county.)

Currency note

This opinion was issued in 1989. 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 core framework here (the commissioners court sets officer compensation, subject to a reasonableness limit and a floor tied to the salary in effect on January 1, 1972, and cannot lower an officer's pay except at the annual budget hearing) still lives in chapter 152 of the Local Government Code, but the specific section numbers and procedural details have been amended over the decades. A county weighing a commissioner pay change today should read the current chapter 152 text, including the notice and hearing rules for changing an elected officer's salary, rather than rely on the section numbers as they stood in 1989.

Who this opinion affected (as of 1989)

Commissioners courts: The opinion confirmed their discretion to set (and, within limits, differentiate) commissioner salaries by precinct, and it reminded them that a cut can happen only at the regular annual budget hearing and never below the January 1, 1972 floor.

Individual county commissioners: The opinion told them they could not unilaterally take a lower salary than the court set, and could not accept full pay and then gift part of it back to the county.

County auditors and budget officers: The opinion clarified the timing rule (no midyear salary reduction) and pointed to the section 152.052 affidavit route for an officer who wants to serve without pay.

Common questions

Must all county commissioners in a county be paid the same salary?
No. The commissioners court may pay commissioners of different precincts different salaries if unusual circumstances reasonably require the difference and each salary is itself reasonable. Whether a salary is reasonable is a question of fact within the court's discretion.

Can the commissioners court cut a commissioner's salary in the middle of the year?
No. Under section 152.013 of the Local Government Code the court cannot lower a county or precinct officer's salary until the regular annual budget hearing.

Is there a minimum a commissioner's salary cannot go below?
Yes. Section 152.012 provides that a salary may not be set below the amount that was in effect on January 1, 1972.

Can a commissioner choose to be paid less than the court decides?
No. Setting compensation for county and precinct officers is the commissioners court's function, and it is not within an individual commissioner's province to decide his own salary should differ from what the court set.

Can a commissioner take his full salary and then donate part of it back to the county?
No. A county has only the powers granted it by the Constitution and statutes, and the Legislature has not authorized a county to accept such a donation. (An officer who wants to serve without pay can instead file the affidavit described in section 152.052.)

Background and statutory framework

Setting the compensation of county and precinct officers is a function the Legislature has assigned to the commissioners court. Section 152.011 of the Local Government Code provides that "[t]he commissioners court of a county shall set the amount of the compensation . . . for county and precinct officers," consistent with article XVI, section 61 of the Texas Constitution. Section 152.012 caps how low pay can go, providing that an officer's salary may not be set at an amount less than the salary in effect on January 1, 1972.

On whether commissioners must be paid equally, the Attorney General drew on Attorney General Opinion JM-770 (1987), which found that a commissioners court may provide different salaries for constables in each precinct if the circumstances reasonably require it and each salary is itself reasonable. He also relied on White v. Comm'rs Court of Kimble County, 705 S.W.2d 322, 326 (Tex. App.-San Antonio 1986, no writ), which noted that "the case law is clear that the commissioners court is limited only to providing a reasonable salary within their discretion for county public officials," and on Vondy v. Comm'rs Court of Uvalde County, 620 S.W.2d 104, 108-109 (Tex. 1981). Although White concerned a justice of the peace and Vondy concerned a constable, the opinion saw no reason the same standard should not govern a county commissioner's salary. The opinion added that the duties of a constable or justice of the peace are more confined to a single precinct than a commissioner's, and that where commissioners serve as ex officio road commissioners for their precincts under section 3.001(a) of article 6702-1, V.T.C.S., a substantial variance in road-and-bridge responsibilities could conceivably justify different salaries. Article V, section 18 of the Constitution grants the commissioners court powers and jurisdiction over county business, and section 81.006 of the Local Government Code sets the quorum rules for conducting that business. In the final analysis, what constitutes a reasonable salary is a question of fact within the court's discretion.

On lowering pay, the opinion concluded the salary may be lowered at the court's discretion, but section 152.013 leaves the court without authority to lower a county or precinct officer's salary until the regular annual budget hearing (Attorney General Opinion JM-839 (1988)). The floor in section 152.012 continues to apply. On a commissioner electing a lower salary, the opinion concluded that because section 151.011 makes setting compensation the court's function, it is not within an individual commissioner's province to decide his salary should differ from the amount set.

On the gift-back question, the opinion started from article XI, section 1 of the Constitution, which makes counties legal subdivisions of the state, and the settled principle that a county has no powers except those set out in the Constitution and statutes. Citing Attorney General Opinion JM-684 (1987) (a state agency must be authorized by law before it may accept a gift) and Canales v. Laughlin, 214 S.W.2d 451 (Tex. 1948) (a county is not empowered to exercise a power not specifically authorized by the Legislature or reasonably inferred from one), the Attorney General concluded that, absent legislative authority permitting an official to donate part of his salary to the county, a county commissioner may not give a portion of his salary to the county. The opinion separately flagged section 152.052, which lets an elected county officer file an affidavit electing not to be paid, in which case the county payroll officer may not issue (and must stop payment on) the officer's paycheck.

Citations

Statutory and constitutional authority:

• Local Gov't Code § 152.011 (commissioners court sets compensation for county and precinct officers); § 152.012 (salary not below the January 1, 1972 amount); § 152.013 (no lowering of a county/precinct officer's salary until the regular annual budget hearing); § 152.052 (affidavit electing not to be paid); § 151.011 (compensation set by the court); § 81.006 (quorum for county business)
• Tex. Rev. Civ. Stat. art. 6702-1, § 3.001(a) (commissioner duties as ex officio road commissioner)
• Tex. Const. art. XVI, § 61 (compensation of county officers); art. V, § 18 (commissioners court's powers over county business); art. XI, § 1 (counties as legal subdivisions of the state)

Cases:

• White v. Comm'rs Court of Kimble County, 705 S.W.2d 322, 326 (Tex. App.-San Antonio 1986, no writ) (reasonable-salary standard for county public officials)
• Vondy v. Comm'rs Court of Uvalde County, 620 S.W.2d 104, 108-109 (Tex. 1981) (constable compensation)
• Canales v. Laughlin, 214 S.W.2d 451 (Tex. 1948) (a county has only powers authorized by, or reasonably inferred from, the Legislature)

Related opinions:

• Attorney General Opinions JM-770 (1987), JM-839 (1988), JM-684 (1987)

Source

• Landing page: https://www.texasattorneygeneral.gov/opinions/jim-mattox/jm-1019
• Original PDF: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1989/jm1019.pdf

Original opinion text

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

February 23, 1989

Honorable David R. White, Jr.
County Attorney
120 East North Street
Uvalde, Texas 78801

Opinion No. JM-1019

Re: Salary of commissioners in Uvalde County, and related questions (RQ-1585)

Dear Mr. White:

You ask the following questions:

1. Can the salary paid each [county] Commissioner be different or must each receive the same salary?

2. Can the salary of the Commissioners be lowered by a vote of the Commissioners Court? If so, can the Budget be amended, after proper hearing, immediately to reflect the vote of the Commissioners, or would the Court have to wait until their yearly budget hearings?

3. If the salary of the Commissioners can be lowered by the vote of the Commissioners Court, what is the lowest amount that can be paid each Commissioner as allowed by law?

4. Can a Commissioner elect to receive a salary lower than what is set by the Commissioners Court?

5. Can a Commissioner receive his full salary, and thereafter make a donation or gift back to the County of a portion thereof?

In your first question you ask whether all county commissioners must receive the same salary. Section 152.011 of the Local Government Code provides "[t]he commissioners court of a county shall set the amount of the compensation . . . for county and precinct officers." See article XVI, section 61 of the Texas Constitution. Section 152.012 of the Local Government Code provides that the salary of an officer may not be set at an amount less than the amount of the salary in effect on January 1, 1972.

In Attorney General Opinion JM-770 (1987), it was found that the commissioners court may provide for different salaries for constables in each precinct if the circumstances reasonably require different salaries and if each salary is itself reasonable.

In White v. Comm'rs Court of Kimble County, 705 S.W.2d 322, 326 (Tex. App. - San Antonio, 1986, no writ), it was noted that "the case law is clear that the commissioners court is limited only to providing a reasonable salary within their discretion for county public officials." See Vondy v. Comm'rs Court of Uvalde County, 620 S.W.2d 104, 108-109 (Tex. 1981).

While White addressed the salary of a justice of the peace and the issue in Vondy related to compensation for a constable, no reason is perceived why the same standard should not be applied in setting the salary of a county commissioner.

As to whether salaries of all commissioners must be the same, it should be noted that the duties of a constable or justice of the peace are more confined to the official's precinct than are the duties of a county commissioner and that therefore payment of different salaries to the former officials might reasonably correspond to some such officials' duties being more extensive than others'. Article V, section 18 of the Texas Constitution grants the county commissioners court "such powers and jurisdiction over all county business, as is conferred by this Constitution and the laws of the State." Section 81.006 of the Local Government Code requires three members of the court to be present for conducting county business except that a county tax may be levied only when at least four members are present. While the commissioners sit as a body in conducting the business of the county, in those counties where commissioners are ex officio road commissioner of their respective precincts, section 3.001(a) of article 6702-1, V.T.C.S., imposes duties on a commissioner for road and bridge construction and maintenance in his precinct. Conceivably, there could be a substantial variance in the responsibilities of the commissioners in connection with their duties as ex officio road commissioner. In such a rare instance it might be urged that a reasonable salary for one commissioner may differ from that of another depending upon a marked disparity in these duties. In the final analysis, as was concluded in Attorney General Opinion JM-770, what constitutes a reasonable salary is a question of fact within the discretion of the commissioners court.

In your second question you ask whether a salary can be lowered for a county commissioner. The salary may be lowered at the discretion of the court. However, under section 152.013 of the Local Government Code, the commissioners court is without authority to lower the salary of a county or precinct officer until the regular annual budget hearing. See Attorney General Opinion JM-839 (1988).

In response to your third question, the salary may not be lowered to an amount less than the amount of salary in effect on January 1, 1972. Local Gov't Code § 152.012.

In your fourth question you ask whether a commissioner may elect to receive a salary lower than that set by the commissioners court. Section 151.011 provides that the commissioners court shall set the amount of compensation for county and precinct officers. It is not within the province of a commissioner to determine that his salary differ from the amount set by the court.[1]

In your last question you ask if a commissioner after receiving his salary may make a gift to the county of a portion thereof.

Article XI, section 1 of the Texas Constitution states that counties are legal subdivisions of the state. The Interpretive Commentary notes that since counties are agents of the state, they have no powers except those which are set forth in the constitution and statutes. Id.

In Attorney General Opinion JM-684 (1987), it was stated that "in order that a state agency may accept a gift, it first must be authorized by law to do so; absent such authority, it may not accept gifts or donations."[2] The Legislature has not seen fit to confer authority upon a county to accept a donation from a county commissioner. Generally, a county is not empowered to exercise any power which is not specifically authorized by the legislature, or which may be reasonably inferred from a specific power. Canales v. Laughlin, 214 S.W.2d 451 (Tex. 1948).

We presume that all parties are acting in the public interest. Nevertheless, absent an authorization by the legislature permitting an official to donate a portion of his salary to the county, we conclude that a county commissioner may not give a portion of his salary to the county.

SUMMARY

Commissioners courts may prescribe different salaries for the commissioners of different precincts if unusual circumstances in each precinct reasonably require different salaries and each salary is in itself reasonable. What constitutes a reasonable salary is a question of fact within the discretion of the court. Section 152.012 of the Local Government Code provides that the salary of an official may not be set at an amount lower than the amount of the salary in effect on January 1, 1972. The commissioners court is without authority to lower the salary of a county or precinct officer until the regular annual budget hearing. It is not within the province of an individual commissioner to determine that his salary differ from the amount set by the commissioners court. A county commissioner may not make a donation of a portion of his salary to the county.

JIM MATTOX
Attorney General of Texas

MARY KELLER
First Assistant Attorney General

LOU MCCREARY
Executive Assistant Attorney General

JUDGE ZOLLIE STEAKLEY
Special Assistant Attorney General

RICK GILPIN
Chairman, Opinion Committee

Prepared by Tom G. Davis
Assistant Attorney General

Footnotes

[1] We call attention to section 152.052 of the Local Government Code regarding the decision of an official not to be paid.

(a) If an elected county officer files an affidavit with the county clerk stating that the officer elects not to be paid for the officer's services, the county payroll officer may not issue a paycheck to the officer.

(b) After the affidavit is filed, the county payroll officer shall take measures to stop payment of a paycheck that was issued to the officer before the affidavit was filed and that has not been presented for payment.

[2] In Attorney General Opinion JM-684, it was noted:

The legislature has explicitly conferred such authority on several state agencies. See, e.g., V.T.C.S. arts. 4413d-1 (Office of State-Federal Relations); 4413(32f) (Texas Closeup Board); 4413(35) (Commission on Fire Protection Personnel Standards and Education); 4413(44) (Governor's Commission on Physical Fitness); 4413(47d) (Texas National Research Laboratory Commission); 4413(49) (Criminal Justice Policy Council: Criminal Justice Coordinating Council); 4413(51) (Interagency Council on Sex Offender Treatment).