Could a Texas county pay new or replacement employees $1,000 less during their first six months?

Texas AG Opinion JM-599: New-Hire Salary Policy

Plain-English summary

Zavala County's 1984 personnel policy required a new or replacement employee to receive $1,000 less than a regular employee in the same position, followed by a $1,000 increase after six months. JM-599 understood the policy to require six months of service before the employee reached the salary level paid to existing employees in that position. Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1986/jm0599.pdf

The opinion concluded that the commissioners court had authority under article 3912k to reduce the compensation of new or replacement employees during the year, so long as the salary was not set below the amount in effect on January 1, 1972. Its summary stated that the court could make the decrease "at any time of the year" subject to that floor. Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1986/jm0599.pdf

JM-599 did not decide whether the posted agenda gave adequate notice under the Open Meetings Act. The opinion supplied the governing standards, including the requirement for full disclosure of the meeting's subject matter, but said the answer required facts the opinion process could not investigate and resolve. Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1986/jm0599.pdf

The salary policy could also apply to a deputy district clerk because the commissioners court fixed deputy-clerk salaries. The opinion separately noted that article 3902 prohibited the commissioners court from influencing whom the district clerk selected as a deputy. Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1986/jm0599.pdf

Currency note

This opinion was issued in 1986. 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.

Common questions

Did JM-599 approve a six-month lower salary for county new hires?

Yes. The opinion said the commissioners court had authority to reduce compensation for new or replacement employees, provided the pay was not lower than the salary in effect on January 1, 1972. Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1986/jm0599.pdf

Did the lower-salary policy have to wait for the next annual budget?

No. Relying on Attorney General Opinion H-11, JM-599 treated article 3912k as an implied exception to the ordinary county-budget restriction for fixing nonelected employees' salaries. Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1986/jm0599.pdf

Was the agenda item "Adoption of 1984 County Personnel Policy and County Holidays" adequate notice?

The AG did not decide. JM-599 said substantial compliance depended on the facts of the particular case and that the office lacked enough information to give a definitive answer. Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1986/jm0599.pdf

Could the commissioners court choose the deputy district clerk?

No. The opinion distinguished salary authority from appointment authority: the commissioners court could fix a deputy clerk's salary, but article 3902 prohibited it from influencing the district clerk's selection of a deputy. Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1986/jm0599.pdf

Background and statutory framework

Article 3912k authorized each commissioners court to fix compensation and allowances for county and precinct employees paid wholly from county funds. The statute barred setting salaries below their level on its effective date. JM-599 read that authority as permitting midyear salary changes for nonelected employees despite the general budget-compliance language in article 689a-11. Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1986/jm0599.pdf

The Open Meetings Act required written notice of each meeting's subject. JM-599 quoted Cox Enterprises for the rule that general notice could sometimes substantially comply, but "less than full disclosure is not substantial compliance." The opinion stopped at that legal standard because deciding whether Zavala County's notice was sufficient required a fuller factual record. Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1986/jm0599.pdf

Citations and references

Statutes:

• Article 6252-17, V.T.C.S. (Open Meetings Act)
• Article 3912k, V.T.C.S. (county compensation authority)
• Article 689a-11, V.T.C.S. (county budget compliance and emergency amendments)
• V.T.C.S. art. 689a-20
• Article 3902, V.T.C.S. (deputy selection)

Cases:

• Lower Colorado River Authority v. City of San Marcos, 523 S.W.2d 641 (Tex. 1975)
• Coates v. Windham, 613 S.W.2d 572 (Tex. Civ. App. - Austin 1981, no writ)
• McConnell v. Alamo Heights Independent School District, 576 S.W.2d 470 (Tex. Civ. App. - San Antonio 1978, writ ref'd n.r.e.)
• Stelzer v. Huddleston, 526 S.W.2d 710 (Tex. Civ. App. - Tyler 1975)
• Cox Enterprises, Inc. v. Board of Trustees of the Austin Independent School District, 706 S.W.2d 956 (Tex. 1986)
• Texas Turnpike Authority v. City of Fort Worth, 554 S.W.2d 675 (Tex. 1977)
• Rains v. Mercantile National Bank at Dallas, 188 S.W.2d 798 (Tex. Civ. App. - El Paso 1945), aff'd, 191 S.W.2d 850 (Tex. 1946)
• Renfro v. Shropshire, 566 S.W.2d 688 (Tex. Civ. App. - Eastland 1978, writ ref'd n.r.e.)

Source

• Landing page: https://www.texasattorneygeneral.gov/opinions/jim-mattox/jm-0599
• Original PDF: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1986/jm0599.pdf

Original opinion text

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

December 29, 1986

Honorable Pablo Avila
Zavala County Attorney
Zavala County Courthouse
Crystal City, Texas 78839

Opinion No. JM-599

Re: Validity of Zavala County personnel policy concerning salary of new employees

Dear Mr. Avila:

You request advice on a provision of the 1984 Zavala County Personnel and Operating Policies adopted by the Commissioners Court of Zavala County at their January 9, 1984 meeting. The Personnel and Operating Policies is a five-page document which includes provisions on working conditions of county employees such as sick leave, annual leave, holidays, and travel expenses. It also covers purchasing and budgeting procedures, vehicle and equipment repair and other county operating policies. You question the validity of the underlined provision on new employees:

NEW EMPLOYEES: No vacancy in any department may be filled without prior Commissioners' Court approval. Any new/replacement employee hired during year salary to be $1,000 less than regular employee with a $1,000 increase in salary after six (6) months employment.

(Emphasis added).

We understand this policy to require new or replacement employees to work for six months before achieving the salary level of existing county employees in the same position.

You first suggest that the commissioners court did not give adequate notice that its meeting would consider the above provision and, therefore, the provision was adopted in violation of the Open Meetings Act, article 6252-17, V.T.C.S. Section 3A of the Open Meetings Act requires that written notice be given of the subject of each meeting held by a governmental body. Actions taken by a governmental body on a matter not stated in the notice are subject to judicial invalidation. V.T.C.S. art. 6252-17, § 3A(a); Lower Colorado River Authority v. City of San Marcos, 523 S.W.2d 641, 646 (Tex. 1975).

The agenda posted to give notice of the January 9, 1984 meeting includes the following item, under which the commissioners court adopted the Personnel and Operating Policies which included the provision on new employees:

9. Adoption of 1984 County Personnel Policy and County Holidays.

Notice of a public meeting should "alert a reader to the fact that some action would be considered" with respect to the subject in question. Lower Colorado River Authority v. City of San Marcos, 523 S.W.2d 641, 646 (Tex. 1975). The courts have also said that the notice provisions of the Open Meetings Act are subject to substantial compliance. See, e.g., Coates v. Windham, 613 S.W.2d 572, 577 (Tex. Civ. App. - Austin 1981, no writ); McConnell v. Alamo Heights Independent School District, 576 S.W.2d 470 (Tex. Civ. App. - San Antonio 1978, writ ref'd n.r.e.); Stelzer v. Huddleston, 526 S.W.2d 710 (Tex. Civ. App. - Tyler 1975); Cox Enterprises, Inc. v. Board of Trustees of the Austin Independent School District, 706 S.W.2d 956 (Tex. 1986). The Supreme Court has recently made the following statement on substantial compliance:

We have held that general notice in certain cases is substantial compliance even though the notice is not as specific as it could be. See Lower Colorado River Authority v. City of San Marcos, 523 S.W.2d 641 (Tex. 1977), and Texas Turnpike Authority v. City of Fort Worth, 554 S.W.2d 675 (Tex. 1977). However, less than full disclosure is not substantial compliance. Our prior judgments should have served as notice to all public bodies that the Open Meetings Act requires a full disclosure of the subject matter of the meetings. The Act is intended to safeguard the public's interest in knowing the workings of its governmental bodies.

(Emphasis added).

Cox Enterprises, Inc. v. Board of Trustees of the Austin Independent School District, supra. See also Texas Turnpike Authority v. City of Fort Worth, 554 S.W.2d 675 (Tex. 1977) (it is unnecessary to post copies of proposed resolutions or to state all of consequences which may flow from consideration of subject).

Whether a governmental body has substantially complied with the notice provisions of the Open Meetings Act requires an application of the law to the facts of the particular case. We have set out the legal standards pertaining to notice, but have not been provided with enough information to answer your question definitively. We cannot investigate and resolve fact questions in the opinion process, and accordingly, do not answer your first question.

Assuming that the provision on new employees' salaries was adopted in substantial compliance with the notice requirements of the Open Meetings Act, you ask whether the commissioners court has authority to enact and implement this policy. Article 3912k, V.T.C.S., provides as follows:

Section 1. Except as otherwise provided by this Act and subject to the limitations of this Act, the commissioners 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 other allowances of elected county and precinct officers shall be set each year during the regular budget hearing and adoption proceedings on giving notice as provided by this Act.

Attorney General Opinion H-11 (1973) determined that the commissioners court had authority under article 3912k, V.T.C.S., to amend its budget to increase employees' salaries at any time of the year, without going through the budgeting procedures required by article 689a-11, V.T.C.S. This article provides in part:

When the budget has been finally approved by the Commissioners' Court . . . no expenditure of the funds of the county shall thereafter be made except in strict compliance with the budget as adopted by the Court. Except that emergency expenditures, in case of grave public necessity, to meet unusual and unforeseen conditions which could not, by reasonably diligent thought and attention, have been included in the original budget, may from time to time be authorized by the Court as amendments to the original budget.

(Emphasis added).

V.T.C.S. art. 689a-11. Article 3912k, section 1, V.T.C.S., provides an implied exception to article 689a-11 for the fixing of non-elected employees' salaries. Attorney General Opinion H-11 (1973). Thus, we need not consider whether article 689a-11, V.T.C.S., even applies to actions by the commissioners court which reduce expenditures from the county budget. See V.T.C.S. art. 689a-20; Rains v. Mercantile National Bank at Dallas, 188 S.W.2d 798 (Tex. Civ. App. - El Paso 1945), aff'd, 191 S.W.2d 850 (Tex. 1946). The commissioners court has authority under article 3912k, V.T.C.S., to reduce the compensation of new or replacement employees as long as the salaries are set no lower than they were on the January 1, 1972 effective date of the statute. V.T.C.S. art. 3912k, § 1. See Attorney General Opinion H-39 (1973).

You finally ask whether the county policy, assuming that the county had authority to adopt it, can be applied to a deputy district clerk appointed by the district clerk. The commissioners court has authority to fix the salaries of deputy clerks under article 3912k, section 1, V.T.C.S. See Renfro v. Shropshire, 566 S.W.2d 688 (Tex. Civ. App. - Eastland 1978, writ ref'd n.r.e.). Article 3902, V.T.C.S., however, prohibits the commissioners court from influencing the selection of any person as a deputy clerk. Id.; see also Attorney General Opinions H-1113 (1978); H-697 (1975).

SUMMARY

A commissioners court has authority under article 3912k, V.T.C.S., to decrease the salaries payable to new or replacement county employees at any time of the year, as long as the salaries are set no lower than they were on January 1, 1972.

Very truly yours,

JIM MATTOX
Attorney General of Texas

JACK HIGHTOWER
First Assistant Attorney General

MARY KELLER
Executive Assistant Attorney General

RICK GILPIN
Chairman, Opinion Committee

Prepared by Susan L. Garrison
Assistant Attorney General