Recent Texas Attorney General Opinions of Interest to Cities

Note:  Included opinions are from September 11, 2022 through October 10, 2022.

KP-413 (ARPA Funds): A court could conclude that “premium pay” funds given to elected county officials by Tyler County in 2021 through the federal American Rescue Plan Act under an interim final rule were akin to hazard pay and thus did not constitute salary increases requiring advance public notice under section 152.013 of the Local Government Code.

KP-414 (Incompatibility): Article XVI, subsection 40(b) expressly permits a state employee or an individual who receives compensation from the state to serve as a member of the governing body of a city but prohibits the person from receiving a salary for the latter unless the person receives compensation from the state for work performed in certain capacities. Because of the multiple possible meanings of these terms, we cannot predict with certainty whether a court would conclude the Legislature equates the term “salary” with “compensation” in subsection 40(b).

Whether the per meeting payment provided under section 3.04 of the Hutto City Charter may be construed to constitute the reimbursement of expenses rather than “salary” for purposes of subsection 40(b) is left to the discretion of the appropriate City officials in the first instance, subject to judicial review.

KP-416 (Budget Amendments): 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.

KP-417 (Magistrates): A court would likely conclude that a magistrate who issued an arrest warrant executed in another county may, until charges are filed in the appropriate court, modify a bond set by a magistrate from the arresting county pursuant to article 17.09, section 3, of the Code of Criminal Procedure. Article 17.09 does not expressly condition the authority to modify bonds on whether new bond conditions sought are mandatory or discretionary under the law.

KP-418 (Incompatibility): The common-law doctrine of incompatibility bars a councilmember of the City of Freeport from simultaneously serving as a member of the City’s police reserve force.