Can a Texas county give the sheriff's office a pay raise in the middle of the budget year?

Plain-English summary

San Jacinto County's commissioners court wanted to raise the pay of everyone in the sheriff's office partway through the budget year, but the adopted budget set aside no money for it. The court asked whether it could pull from a fund balance or special designated funds to do that without declaring an emergency. The San Jacinto County District Attorney (his predecessor actually sent the request) put the question to the AG.

The starting rule is strict. A commissioners court sets county compensation as part of the budget process, and once the budget is finally approved, the court "may spend county funds only in strict compliance with the budget, except in an emergency" (Local Government Code section 111.010(b)). So a blanket midyear raise for sheriff's office employees generally cannot happen by amending the regular budget unless the court finds an emergency. The AG cited a 1951 case (Guerra v. McClellan) holding that an order raising salaries without any recitation or finding of an emergency was not a valid budget amendment.

There is one non-emergency option built into the same statute: the court may amend the budget to transfer funds from one already-budgeted item to another, subject to other applicable law (section 111.010(d)). That is different from creating new spending; it is moving money between existing line items.

On the emergency question itself (whether turnover and understaffing from low wages qualify), the AG would not decide it. Section 111.010(c) allows an emergency expenditure only for a "grave public necessity to meet an unusual and unforeseen condition that could not have been included in the original budget through the use of reasonably diligent thought and attention." Whether specific facts meet that bar is for the commissioners court to determine in the first instance, subject to judicial review for abuse of discretion (GA-0620; Bexar Cnty. v. Hatley).

Finally, on grant money: section 111.0106 lets a county adopt a special budget, outside the regular process, to spend public or private grant or aid money that became available during the fiscal year but was not in the budget, after the county auditor (or county judge where there is no auditor) certifies its receipt. The point is to keep grant money received after the budget is adopted from sitting frozen. But it can be spent only for the grant's "intended purpose." The request apparently referenced the CARES Act, a large program with many different grants for many purposes, so whether any particular grant can fund a prospective raise for sheriff's office employees depends on that grant's intended purpose and its terms and conditions. The AG told the county to direct those questions to the agency administering the grant.

What this means for you

If you sit on a commissioners court

Based on this opinion, a midyear blanket raise for sheriff's office employees generally is off the table unless you find an emergency under section 111.010(c) and put that finding on the record, or unless you fund it through a lawful transfer between already-budgeted items under section 111.010(d). The AG stresses that the emergency determination is yours to make in the first instance, and a court can review it for abuse of discretion.

If you are a county auditor or budget officer

Note the certification step for grant money. Before a special budget under section 111.0106, the county auditor (or county judge if there is no auditor) must certify the receipt of grant or aid money that is available this fiscal year but was not in the budget. And section 111.0106 spending is limited to the grant's intended purpose.

If you work in the sheriff's office

The opinion is about employees, not the elected sheriff. The AG noted in a footnote that an elected official's salary like the sheriff's can be set only during the regular budget hearing and adoption proceedings, so a sheriff's own salary cannot be adjusted midyear (citing section 152.013(a) and KP-0012).

Common questions

Q: Can the county give sheriff's office staff a raise in the middle of the year?
A: Generally only if the commissioners court finds an emergency, or funds it by transferring money between already-budgeted items. After final budget approval, the court may spend only in strict compliance with the budget except in an emergency.

Q: Does staffing trouble from low pay count as an "emergency"?
A: The AG would not say. Whether facts amount to a "grave public necessity to meet an unusual and unforeseen condition" is for the commissioners court to decide first, subject to court review for abuse of discretion.

Q: Can we use CARES Act or other grant money for the raises?
A: Maybe, depending on the grant. Section 111.0106 lets a county adopt a special budget to spend grant or aid money not in the budget, but only for the grant's intended purpose. Check the specific grant's terms with the administering agency.

Q: Can the sheriff's own salary be raised midyear?
A: No. The AG noted an elected official's salary is set only during the regular budget hearing and adoption proceedings, so it cannot be changed at other times.

Background and statutory framework

A commissioners court sets the compensation of county officers and employees through the budget process (Local Government Code sections 152.011, 152.013), and an elected official's salary may be set only during the regular budget hearing and adoption proceedings (section 152.013(a); KP-0012 (2015)). Chapter 111, subchapter A governs budgeting for counties with a population of 225,000 or less (section 111.001), like San Jacinto County. After final approval, the court "may spend county funds only in strict compliance with the budget, except in an emergency" (section 111.010(b)). A midyear amendment without an emergency is allowed only to transfer funds between budgeted items, subject to other law (section 111.010(d); Gattis v. Duty; KP-0052 (2015)); otherwise a salary raise requires an emergency finding (Guerra v. McClellan).

An emergency expenditure is authorized only "in a case of grave public necessity to meet an unusual and unforeseen condition that could not have been included in the original budget through the use of reasonably diligent thought and attention" (section 111.010(c)). Whether facts meet that standard is for the commissioners court to decide first, subject to judicial review for abuse of discretion (GA-0620 (2008); Bexar Cnty. v. Hatley). Separately, section 111.0106 requires a county to adopt a special budget to spend public or private grant or aid money available for disbursement in a fiscal year but not in that year's budget, after the county auditor (or county judge without an auditor) certifies its receipt, and only "for the limited purpose of spending the grant or aid money for its intended purpose." Whether a particular grant (here, possibly the CARES Act, 42 U.S.C. section 801) can fund a prospective raise depends on the grant's intended purpose and terms.

Citations and references

Statutes:

• Tex. Loc. Gov't Code § 111.010 — strict compliance with the budget, emergency expenditures, and transfers between items
• Tex. Loc. Gov't Code § 111.0106 — special budget for grant or aid money not in the budget
• Tex. Loc. Gov't Code § 152.013 — setting elected officials' salaries during budget proceedings

Key cases:

• Guerra v. McClellan, 243 S.W.2d 715 (Tex. Civ. App.—San Antonio 1951, no writ) — a salary-raising order without an emergency finding was not a valid budget amendment
• Bexar Cnty. v. Hatley, 150 S.W.2d 980 (Tex. 1941) — commissioners court's budgetary discretion over "grave public necessity"
• Gattis v. Duty, 349 S.W.3d 193 (Tex. App.—Austin 2011, no pet.) — analogous transfer authority between budgeted items

Source

• Landing page: https://www.texasattorneygeneral.gov/opinions/ken-paxton/kp-0416
• Original PDF: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/2022/kp-0416.pdf

Original opinion text

KEN PAXTON
ATTORNEY GENERAL OF TEXAS

September 20, 2022

The Honorable Todd Dillon
San Jacinto County District Attorney
1 State Highway 150, Room 21
Coldspring, Texas 77331-0403

Opinion No. KP-0416

Re: A commissioners court's authority to increase salaries of employees in a sheriff's department in the middle of the budget year (RQ-0451-KP)

Dear Mr. Dillon:

Your predecessor asked about the authority of a commissioners court to increase the salaries of employees in a sheriff's department in the middle of the budget year.¹ He told us that earlier this year the commissioners court of San Jacinto County ("County") considered a proposal to give a pay raise to all members of the sheriff's office, but the current county budget does not allocate funds for that purpose. Request Letter at 1. Your predecessor stated that the commissioners court was concerned whether it could use "a fund balance or other special designated funds" to provide such a raise without declaring an emergency. Id. He asked first whether the "Commissioners Court could grant a blanket raise to every Sheriff's Office employee in the middle of a budget year in the absence of an emergency."² Id.

Budget Amendments and Transfers Between Budgeted Items

As the county governing body, a commissioners court sets the amount of compensation of county officers and employees as part of the county budget approval process. See TEX. LOC. GOV'T CODE §§ 152.011, .013. Chapter 111, subchapter A of the Local Government Code governs county spending for counties the size of San Jacinto County (the "County").³ Section 111.010 of the Local Government Code generally requires a county to adhere to its final budget when it spends county money: "After final approval of the budget, the commissioners court may spend county funds only in strict compliance with the budget, except in an emergency." TEX. LOC. GOV'T CODE § 111.010(b). The statute also allows a midyear amendment without an emergency to transfer funds from one budgeted item to another, subject to other applicable law. See id. § 111.010(d); see also Gattis v. Duty, 349 S.W.3d 193, 207 (Tex. App.—Austin 2011, no pet.) (discussing analogous transfer authority under subchapter C); Tex. Att'y Gen. Op. No. KP-0052 (2015) at 3 (noting that transfer authority may be subject to other law). But outside of a valid transfer between budgeted items, a commissioners court may not amend the regular budget midyear to raise salaries of employees of the sheriff's office without finding the existence of an emergency. See Guerra v. McClellan, 243 S.W.2d 715, 717 (Tex. Civ. App.—San Antonio 1951, no writ) (holding that order raising salaries without "recitations or findings as to the existence of an emergency" was not a valid budget amendment).

Emergency Amendment

Your predecessor's second question asked whether "high turnover and subsequent low staffing levels at the Sheriff's Office due to low wages constitute an emergency." Request Letter at 1. Subsection 111.010(c) authorizes an "emergency expenditure as an amendment to the original budget only in a case of grave public necessity to meet an unusual and unforeseen condition that could not have been included in the original budget through the use of reasonably diligent thought and attention." TEX. LOC. GOV'T CODE § 111.010(c). Whether particular circumstances constitute a "grave public necessity" under the statute requires resolution of fact questions outside the scope of the attorney general opinion process. See Tex. Att'y Gen. Op. No. GA-0620 (2008) at 5. Rather, the statute requires a commissioners court to determine in the first instance whether the facts satisfy the statutory requirements that warrant an emergency expenditure, subject to judicial review for abuse of discretion. See id.; see also Bexar Cnty. v. Hatley, 150 S.W.2d 980, 987 (Tex. 1941) (discussing the commissioners court's budgetary discretion with respect to "grave public necessity").

Special Budget for Grant or Aid Money

Finally, your predecessor asked whether the County can use federal grant funds to provide a raise in the middle of a budget year. See Request Letter at 1. Separate from the regular budget process, section 111.0106 of the Local Government Code requires a county subject to chapter 111, subchapter A to "adopt a special budget for the limited purpose of spending" public or private grant or aid money for its intended purpose "that is available for disbursement in a fiscal year but not included in the budget for that fiscal year."⁴ TEX. LOC. GOV'T CODE § 111.0106. The county auditor, or county judge in a county without a county auditor, must first "certify to the commissioners court the receipt of all public or private grant or aid money that is available for disbursement in a fiscal year but not included in the budget for that fiscal year." Id. The purpose of this provision is to prevent grant or aid money received after adoption of the current year's annual budget from remaining frozen until the following fiscal year. See House Comm. on Cnty. Affairs, Bill Analysis, Tex. H.B. 1481, 68th Leg., R.S. (1983) (explaining the purpose of an identical provision for larger counties). Thus, section 111.0106 does not apply unless the grant or aid money was not included in the regular budget. TEX. LOC. GOV'T CODE § 111.0106. Moreover, a county may adopt a special budget only "for the limited purpose of spending the grant or aid money for its intended purpose." Id.

Because your predecessor did not provide any information about a specific grant, we assume his reference to the CARES Act to mean the Coronavirus Aid, Relief, and Economic Security Act of 2020, known as the "CARES Act," a multifaceted program providing different grants for myriad purposes. See Request Letter at 1; 42 U.S.C. § 801. Whether funds from a particular grant may be used to give a prospective raise to employees of the sheriff's office will depend on the "intended purpose" of the grant itself, as well as its terms and conditions. See TEX. LOC. GOV'T CODE § 111.0106. Thus, you should direct questions about the permissible uses of specific grant funds to the agency administering the grant.

S U M M A R Y

A county commissioners court generally may not amend its budget to grant a salary increase to the employees in the sheriff's office in the middle of a budget year in the absence of a finding of an emergency. But a commissioners court may amend the budget without an emergency to transfer funds from one budget item to another, subject to limitations in other law.

To adopt a midyear budget amendment due to an emergency, the commissioners court must make a finding of fact about the existence of a "grave public necessity to meet an unusual and unforeseen condition that could not have been included in the original budget through the use of reasonably diligent thought and attention."

Section 111.0106 of the Local Government Code authorizes a commissioners court to adopt a special budget for grant or aid money that is available for disbursement in the fiscal year but was not included in the budget for that fiscal year, for the limited purpose of spending the grant or aid money for its intended purpose. Whether funds from a particular grant may be used to give a prospective raise to employees of the sheriff's office will depend on the "intended purpose" of the grant itself, as well as its terms and conditions.

Very truly yours,

KEN PAXTON
Attorney General of Texas

BRENT E. WEBSTER
First Assistant Attorney General

LESLEY FRENCH
Chief of Staff

D. FORREST BRUMBAUGH
Deputy Attorney General for Legal Counsel

CHARLOTTE M. HARPER
Acting Chair, Opinion Committee

¹ See Letter from Honorable Robert H. Trapp, San Jacinto Cnty. Dist. Att'y, to Honorable Ken Paxton, Tex. Att'y Gen. at 1 (rec'd Mar. 24, 2022), https://texasattorneygeneral.gov/sites/default/files/request-files/request/2022/RQ0451KP.pdf ("Request Letter").

² By asking only about employees, your predecessor's question does not appear to include the sheriff, an elected official. Request Letter at 1. Each year, the commissioners court must set the salary of elected officials such as the sheriff only "at a regular meeting of the court during the regular budget hearing and adoption proceedings." TEX. LOC. GOV'T CODE § 152.013(a). Thus, a sheriff's salary may not be adjusted in the middle of the budget year. See Tex. Att'y Gen. Op. No. KP-0012 (2015) at 2–3 (explaining the procedure required to set elected officials' salaries does not permit changes at other times).

³ See TEX. LOC. GOV'T CODE § 111.001 (stating chapter 111, subchapter A applies to counties with a population of 225,000 or less); see also UNITED STATES CENSUS BUREAU, Quick Facts, https://www.census.gov/quickfacts/fact/table/sanjacintocountytexas/PST045221 (last visited June 9, 2022) (stating 2020 census population of San Jacinto County as 27,402).

⁴ See TEX. LOC. GOV'T CODE §§ 111.001–.014 (providing for budget preparation in counties with a population of 225,000 or less that do not operate under subchapter C).