Untitled Texas Attorney General Opinion

The Attorney General of Texas April 26, 1983 JIM MATTOX Attorney General

Mr. Wilburn C. Rust Opinion No. m-27 Supreme Court Building P. 0. Box 12546 Travis County Auditor Austin. TX. 76711. 2546 Travis County Courthouse Rs: Salaries of Travis County 5121475-2501 Austin, Texas 78701 officers for 1983 Telex 9101674-1367 Telecopier 5121475.0266 Dear Mr. Rust:

1607 Main St.. Suite 1400 You advise that Travis County recently adopted a new fiscal year Dallas. TX. 75201.4709 which begins October 1, 1982, and ends September 30, 1983. See 2141742-6944 V.T.C.S., art. 1644e. Previously, the county's fiscal year extended from January 1 to December 31 of each year, and the 1982 budget was 4624 Alberla Ave.. Suite 160 adopted on that basis. You ask how the 1983 salaries of county El Paso, TX. 799052793 officers will be affected by the change. 9151533-3464 Section 2 of article 3912k. V.T.C.S., provides that the commissioners court shall set the salaries, expenses, and other -20 Dallas Ave., Suite 202 Houston, TX. 77002-6966 allowances of elected county and precinct officers during the regular 7131650-0666 budget hearing and adoption proceedings. Section 6 of that statute requires that the commissioners court exercise such authority only after 10 days notice "of the intended salaries, expenses, and 606 Broadway. Suite 312 allowances to be raised and the amount of the proposed raises." Lubbock, TX. 79401-3479 6061747-5236 A notice was published by Travis County stating that adjustments to salaries and allowances for elected officials were to be considered 4309 N. Tenth. Suite S on October 29, 1982, which would "include a cost of living adjustment McAllen. TX. 76501-1665 of eleven (11) percent" and that the adjustments would not exceed 512,662.4547 certain "proposed 1983 amounts." The notice said nothing of "annualizing" the cost of living adjustments. It did, however, list a 200 Main Plaza, Suite 400 "1982 salary" and a "proposed increase," as well as a "proposed 1983" San Antonio, TX. 76205.2797 salary for each position, and it specified that the "effective date 51212254191 for any and all of the above considerations which might be approved is January 1, 1983." After adoption of an order giving elected officials An Equal Opportunity/ a "cost of living increase on an annualized basis of 11% effective Affirmative Action Employer January 1, 1983." you were informally requested by the conmissioners court to pay the 1982 salaries until January 1, 1983, but thereafter to pay the full 11% increase for twelve months during the next nine months to each officer named in the notice. This would result in an additional 3 2/3X for each of the nine months from January 1 through September 30.

The payment schedule informally requested would not comport with the notice given the public. The notice made no mention of the fact that the 1982 fiscal year was to be cut short or that the new 1983

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salaries with a January 1 "effective date" were not intended to comensate the named officers for a full _vear from that date. A misleading notice is no notice. See Colorado County v. J.M. English Truck Line, 265 S.W.2d 865, 868 (Tz Civ. App. - Galveston 1954, writ ref'd n.r.e.). Therefore, in the absence of proper notice of such salary increases, any attempted increase is i&aiid. -See Attorney General Opinion MW-516 (1982).

In our opinion, the notice given would authorize the payment of the "proposed 1983" salaries on a pro-rata basis for the nine months remaining in the new October-to-September 1983 fiscal year after January 1, 1983, but would not authorize the payment of the 11% increase attributable to the last three months of 1982. The commissioners court &, as opposed to the informal request made of YOU, appears to adopt a pro-rata approach. It states in pertinent part:

It is here ordered by the Commissioners Court of Travis County that all Elected Officials be given a cost-of-living increase on an annualized basis of 11% effective January 1, 1983. (Emphasis added).

The order does not .tie the increase to the new fiscal year, but rather makes the increase effective at the beginning of a calender year. Under such circumstances the phrase "on an annualized basis," as used in the order, can and should be construed as referring to the period from January 1, 1983 to December 31, 1983, and to indicate a pro-rata adjustment for the applicable portion of the fiscal year in compliance with budgetary laws and notice provisions. _See V.T.C.S. art. 1666a, 3912k. See generally 53 Tex. Jur. 2d Statutes 9157. at 223.

SUMMARY

The 1983 salary increases for Travis County elected officials are not invalid, but in view of the fiscal year change by the county, such officers are entitled during the new fiscal year

J& to only a pro-rata part of the 1983 annual salaries established.

Very truly you I

JIM MATTOX Attorney General of Texas

TOM GREEN First Assistant Attorney General

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DAVID R. RICHARDS Executive Assistant Attorney General

Prepared by Bruce Youngblood Assistant Attorney General

APPROVED: OPINION COMMITTEE

Susan L. Garrison, Chairman Rick Gilpin Jim Moellinger Nancy Sutton Bruce Youngblood

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