If a Texas county employee who receives longevity pay is elected to a county office, does that longevity pay continue?

Plain-English summary

Webb County had given longevity pay to employees with more than fifteen years of service, and one of those long-time employees later ran for office and won, becoming the Webb County Clerk. That raised an awkward payroll question: does the longevity pay she earned as an employee follow her into elected office? The Webb County Attorney put the question to the AG, along with a second question about salary grievances.

On the first question, the AG concluded that the employee longevity-pay order did not carry over. The reason is a line the law draws between an employee and an officer. A county clerk is an elected constitutional officer, not an employee, so once the clerk took office she was no longer covered by a policy written for employees. The AG pointed out that a commissioners court can provide longevity pay to officers too, but it has to do that deliberately, through the separate compensation process in section 152.013 of the Local Government Code: setting the pay at the regular budget hearing, publishing proposed increases in a newspaper before the meeting, and notifying officers before the budget is filed. And there is a hard limit. Article III, section 53 of the Texas Constitution bars a commissioners court from granting extra compensation to a public officer after the service has already been performed, so any new officer longevity pay could only run forward, not backward.

The second question was about the salary grievance committee under section 152.016. An elected county officer who is unhappy with the salary the commissioners court sets can request a hearing before that committee, but only by following the statute's procedure and tight deadlines. The AG concluded that an officer who does not challenge the proposed salary in the way and by the deadline section 152.016(a) requires has effectively waived any salary grievance for the upcoming fiscal year.

Currency note

This opinion was issued in 2016. 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 Local Government Code provisions on county compensation, longevity pay, and salary grievances cited here may have been amended since 2016, so confirm the current statutes before relying on these specifics.

What the opinion meant for those who asked

Webb County and county commissioners courts (as the opinion described it): The opinion described an order granting longevity pay to qualified employees as not continuing in effect for someone who later becomes a county officer. It described section 152.013 as the route a commissioners court would use to set longevity pay for officers, and article III, section 53 as barring any such pay for service already rendered.

A county employee who is elected to office (as the opinion described it): The opinion described an elected county clerk as an officer rather than an employee, and therefore no longer covered by the county's employee longevity-pay policy.

County officers and the salary grievance process (as the opinion described it): The opinion described an officer who does not challenge the proposed salary through the section 152.016 procedure and its deadlines in a given year as having waived any salary grievance for the upcoming fiscal year.

Common questions

If I receive longevity pay as a county employee and then get elected to a county office, do I keep it?
The AG concluded that you do not. Once elected, you are a county officer rather than an employee, so an employee longevity-pay policy no longer covers you. The AG reasoned that a county clerk is an elected officer, not an employee, and pointed to a prior opinion reaching the same result for a sheriff who had been a deputy.

Can a county give longevity pay to its elected officers at all?
Yes. The AG concluded a commissioners court could provide longevity pay to officers under section 152.013 of the Local Government Code, by setting the compensation at the regular budget hearing, publishing the proposed increase in a general-circulation newspaper before the meeting, and notifying officers before the budget is filed with the county clerk.

Can the county pay an officer longevity pay for years already worked?
No. The AG concluded that article III, section 53 of the Texas Constitution prohibits extra compensation to a public officer after the service has been rendered, so any new officer longevity-pay policy could operate only prospectively.

If an officer never raised the salary issue in the grievance process, did the officer lose it?
The AG concluded that an officer who does not challenge the proposed salary in accordance with the procedure and deadline in section 152.016(a) has effectively waived any salary grievance for the upcoming fiscal year.

How quickly does a county officer have to file a salary grievance?
The opinion noted that the written request must be delivered to the chair of the salary grievance committee within five days after the officer receives notice of the salary or personal expenses to be included in the budget, and it must state the desired change.

Background and statutory framework

A commissioners court sets the compensation, expenses, and allowances for county officers and employees, and that compensation can include longevity pay (Tex. Loc. Gov't Code § 152.011). A county may provide longevity pay to both employees and officers, and a statute separately authorizes counties of 190,000 or more to provide longevity pay to employees (Tex. Loc. Gov't Code § 152.906). The distinction that decided this opinion is the one between an officer and an employee: a county clerk is an elected constitutional officer (Tex. Const. art. V, § 20; Aldine Indep. Sch. Dist. v. Standley, 280 S.W.2d 578), so an employee-only longevity policy does not reach the clerk.

To create longevity pay for officers, a commissioners court would follow section 152.013, which sets officer compensation at the regular budget hearing, requires newspaper publication of proposed increases before the meeting, and requires notice to officers before the budget is filed (Tex. Loc. Gov't Code § 152.013). Any such pay is bounded by the constitutional bar on extra compensation for service already rendered (Tex. Const. art. III, § 53), so it must be prospective. On the second question, the salary grievance committee process gives an aggrieved officer a hearing only on a timely written request, and the AG read a failure to use that process within the statutory deadline as a waiver of the grievance for the coming fiscal year (Tex. Loc. Gov't Code § 152.016).

Citations

Statutory and constitutional provisions:

• Tex. Loc. Gov't Code § 152.011 (commissioners court sets compensation and allowances for county officers and employees)
• Tex. Loc. Gov't Code § 152.013 (setting compensation for county officers; budget hearing, publication, and notice)
• Tex. Loc. Gov't Code § 152.016 (salary grievance committee; request, deadlines, and authority)
• Tex. Loc. Gov't Code § 152.906 (counties of 190,000 or more may provide longevity pay to employees)
• Tex. Const. art. V, § 20 (office of county clerk; elected for a four-year term)
• Tex. Const. art. III, § 53 (no extra compensation to a public officer after service is rendered)

Cases:

• Aldine Indep. Sch. Dist. v. Standley, 280 S.W.2d 578, 583 (Tex. 1955)

Source

• Landing page: https://www.texasattorneygeneral.gov/opinions/ken-paxton/kp-0060
• Original PDF: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/2016/kp0060.pdf

Original opinion text

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

KEN PAXTON
ATTORNEY GENERAL OF TEXAS

February 2, 2016

The Honorable Marco A. Montemayor Opinion No. KP-0060
Webb County Attorney
1110 Washington Street, Suite 301 Re: Questions regarding the continuation of
Laredo, Texas 78040 longevity pay after a county employee is
elected to a county office (RQ-0042-KP)

Dear Mr. Montemayor:

You ask two questions about longevity pay granted to a county employee who later became an elected county official. [1] As background, you explain that in 2001, the Webb County Commissioners Court granted longevity pay to employees with more than fifteen years of county service. See Request Letter at 1. [2] According to documentation you provide, the commissioners court later passed a motion in 2003 to "allow 15 year employees that benefited from this increase in salary to transfer the amount of the increase should they be hired at another county department." [3] You tell us that a long-time county employee who received the longevity pay increase subsequently ran for office and was elected as the Webb County Clerk, a position which she currently holds. Id. at 1. Against this background, your first question is whether an order granting longevity pay to an individual as a county employee continues in effect for the individual if he or she becomes an elected official. Id. at 2.

The commissioners court is required to "set the amount of the compensation, office and travel expenses, and all other allowances for county ... officers and employees." TEX. LOC. GOV'T CODE § 152.011. Compensation in this regard includes longevity pay. See Tex. Att'y Gen. Op. No. JC-0026 (1999) at 1 (acknowledging the discretion of the commissioners court to prospectively provide longevity pay to an officer); Tex. Att'y Gen. LO-96-007, at 2 (concluding that a county may provide longevity pay to employees); see also TEX. LOC. GOV'T CODE § 152.906 (authorizing counties with a population of 190,000 or more to provide longevity pay to employees). A county is thus authorized to provide longevity pay to both employees and officers. The longevity pay policy about which you inform us appears to apply only to qualified employees.

See Request Letter at 1; Exhibit 1 at 2; Exhibit 2 at 2. The county clerk, however, is no longer an employee but an officer. See TEX. CONST. art. V, § 20 (establishing the office of county clerk "for each county" and providing that the clerk is "elected . . . by the qualified voters" for a four-year term); see also Aldine Indep. Sch. Dist. v. Standley, 280 S.W.2d 578, 583 (Tex. 1955) (explaining the difference between an officer and an employee). Consequently, the county clerk is no longer covered by the county's employee longevity pay policy. See Tex. Att'y Gen. Op. No. JC-0026 (1999) at 2 (noting that "[s]ince having taken office" a sheriff was "an officer and not an employee, and therefore [was] not entitled to the longevity pay rate" applicable to deputies).

You do not tell us that Webb County currently provides longevity pay for county officers, and thus we assume it does not. If it so desires, the commissioners court could provide longevity pay for officers pursuant to section 152.013 of the Local Government Code. See TEX. LOC. GOV'T CODE § 152.013 (governing the setting of compensation for county officers). Under that section, the commissioners court would set an officer's compensation "at a regular meeting of the court during the regular budget hearing and adoption proceedings" each year. Id. § 152.013(a). Section 152.013 would also require the commissioners court to publish "any salaries, expenses, or allowances" of officers "that are proposed to be increased ... and ... the amount of the proposed increases" in a general circulation newspaper "[b]efore the 10th day before the date of the meeting." Id. § 152.013(b). Finally, section 152.013 would require the commissioners court to notify county officers of their "salary and personal expenses to be included in the budget" before the annual budget is filed with the county clerk. Id. § 152.013(c). Longevity pay could not, however, be granted retroactively. This is because article III, section 53 of the Texas Constitution prohibits the commissioners court from paying "any extra compensation, fee or allowance to a public officer ... after service has been rendered." TEX. CONST. art. III, § 53; see also Tex. Att'y Gen. Op. Nos. JC-0026 (1999) at 2 (concluding that while a commissioners court has the discretion to increase an officer's rate of longevity pay, it may not do so "for services already rendered" because of article III, section 53); JC-0123 (1999) at 2 (noting that if a commissioners court adopts a policy allowing unused leave to follow an employee if the employee becomes an officer, the policy "must operate prospectively, not retrospectively" for the same reason). Thus, to the extent Webb County adopts a new longevity pay policy for officers, it may do so only prospectively.

Your second question involves the salary grievance procedure described by section 152.016 of the Local Government Code. See Request Letter at 2. Under that provision, "[a]n elected county ... officer who is aggrieved by the setting of the officer's salary or personal expenses may request a hearing before the salary grievance committee before the approval of the county's annual budget." TEX. LOC. GOV'T CODE § 152.016(a); see also id. § 152.016(c)-(d) (setting forth the functions and authority of the salary grievance committee). If a county official has "never raised the issue" in the salary grievance process during the previous twelve years, you ask whether the county official "waive[s] the issue of longevity pay." Request Letter at 2. The statute provides that a written request for a hearing must be delivered to the chair of the salary grievance committee "within five days after the date the officer receives notice of the salary or personal expenses" that will be included in the annual budget and must "state the desired change in salary or personal expenses." TEX. LOC. GOV'T CODE § 152.016(a)(1)-(3); see also id. § 152.013(a) (providing that the commissioners court sets the compensation for elected officers "each year"). Furthermore, the deadline for the grievance committee to hold a public hearing on the grievance is within ten days of the request being received or within ten days of the commissioners court selecting the public members of the committee, whichever is later. Id. § 152.016(b). Accordingly, a county officer who does not challenge the officer's proposed salary in accordance with the procedure and deadline specified by subsection 152.016(a) of the Local Government Code has effectively waived any salary grievance for the upcoming fiscal year.

SUMMARY

A commissioners court order granting longevity pay to certain qualified employees and allowing employees to transfer the longevity pay to another county department if they are hired there does not continue in effect for an individual who later becomes a county officer.

A county officer who does not challenge the officer's proposed salary in accordance with the procedure and deadline specified by subsection 152.016(a) of the Local Government Code in any given year has effectively waived any salary grievance for the upcoming fiscal year.

Very truly yours,

KEN PAXTON
Attorney General of Texas

CHARLES E. ROY
First Assistant Attorney General

BRANTLEY STARR
Deputy Attorney General for Legal Counsel

VIRGINIA K. HOELSCHER
Chair, Opinion Committee

BECKY P. CASARES
Assistant Attorney General, Opinion Committee

[1] Letter from Honorable Marco A. Montemayor, Webb Cty. Att'y, to Honorable Ken Paxton, Tex. Att'y Gen. at 2 (Aug. 6, 2015), https://www.texasattorneygeneral.gov/opinion/requests-for-opinion-rqs ("Request Letter").

[2] See also Exhibit 1 at 2, attached to Request Letter (Webb Cty. Comm'rs Ct. Regular Meeting Agenda dated Aug. 13, 2001) ("Exhibit 1").

[3] See also Exhibit 2 at 2, attached to Request Letter (Official Minutes for Webb Cty. Comm'rs Ct. Meeting of Apr. 14, 2003) ("Exhibit 2").