Office of the Attorney General — State of Texas John Cornyn The Honorable Michael G. Mask Jack County Attorney Courthouse, Third Floor Jacksboro, Texas 76458
Re: Whether a county may pay the employer's share of employment taxes on state "supplemental salary compensation" paid to a county attorney pursuant to section
Dear Mr. Mask:
The Seventy-sixth Legislature adopted a new statute, section
As you note, the Seventy-sixth Legislature enacted several bills supplementing the salaries of certain county judges1 and county attorneys.2 See Letter from Honorable Michael G. Mask, to Honorable John Cornyn, Texas Attorney General, at 1 (Dec. 21, 1999) (on file with Opinion Committee) [hereinafter "Request Letter"]. Your first question is as follows:
May a county commissioners court regard a state legislated and appropriated salary supplement directed to a county or precinctelected official or employee as being inclusive of the matching cost associated with county benefit[s] and related payroll matching expenses when the legislation authorizing the supplement does not specify otherwise?
Id. We gather you are concerned about whether such state-provided supplements may be used to pay the employer's share of employment taxes that are paid for by both the employee and the employer, such as Federal Insurance Contributions Act ("FICA") taxes for social security coverage.See generally 26 U.S.C. ch. 21 (1994) (FICA); see also Tex. Gov't Code Ann. ch. 606, subch. B (Vernon 1994 Supp. 2000) (authorizing political subdivision to make FICA contributions under an agreement to obtain social security coverage). Although the introduction to your query mentions the county judge supplement and your first question speaks generally of state supplements for "a county or precinct elected official or employee," most of your letter focuses on House Bill 804 and, more particularly, its provisions establishing a state supplement for county attorneys. See Request Letter at 1-2. For this reason, we limit our analysis to the state supplement for county attorneys.
The Seventy-sixth Legislature amended chapter 46 of the Government Code in House Bill 804 to provide state supplemental salary compensation for a "county prosecutor," i.e. "a constitutional county attorney who does not have general felony jurisdiction and who is not a state prosecutor." Tex. Gov't Code Ann. §
(a) Except as provided by Subsection (b), each county that has a county prosecutor is entitled to receive from the state supplemental salary compensation to be paid by the county to the county prosecutor. . . . A county with no county prosecutor is not entitled to receive the salary supplement funds provided by this section.
. . . .
(c) If the receipt of compensation under this section causes the gross salary of a county prosecutor to exceed the benchmark salary, or if any amount of the compensation is waived by the prosecutor, the excess or waived amount shall be used for expenses of the county prosecutor's office.
(d) At least annually the comptroller shall pay to the salary fund of each county that is entitled to receive funds under this section an amount authorized under this section to supplement the salary of the county prosecutor.
(e) A county attorney who does not have criminal prosecution duties or who has criminal prosecution duties only upon request of the district attorney is entitled to receive from the state supplemental salary compensation that is equal to one-half the amount the county attorney would be eligible for under Subsection (a) or (b). The remainder of the supplement shall be used for expenses of the county attorney's office. This subsection does not apply to a county attorney who is responsible for the prosecution of juvenile justice cases under Title 3, Family Code.
Id. § 46.0031. In addition, House Bill 804 amended section 46.006 to provide:
(a) It is the purpose of this chapter to increase the effectiveness of law enforcement in this state and to increase the funds available for use in prosecution at both the felony and misdemeanor levels.
(b) The commissioners court in each county that has a prosecutor subject to this chapter may not reduce the county funds provided for the salary or office of the prosecutor as a result of the funds provided by this chapter.
Id. § 46.006.
Section 46.0031 does not expressly address whether the county must pay the employer's share of employment taxes on this "supplemental salary compensation" from county funds or whether it may use the state-provided funds to pay the taxes. Furthermore, the section 46.006(b) limitation on reducing county funding for the salary or office of the county attorney falls short of a mandate that the county increase such funding. It does not resolve whether the state-provided funds may be used to pay the employer's share of employment taxes on the state supplement or whether county funds must be used for this purpose.
Texas courts do not appear to have addressed the issue of whether a state-provided supplement of this kind may be used to pay the employer's share of employment taxes. Although this office has addressed whether employer FICA contributions are included in an officer's salary on several occasions, in each case a statute specifically resolved the issue. See Tex. Att'y Gen. Op. No.
We resolve your question by reference to the general statutory scheme and the legislative history of section 46.0031. Federal law provides that both the employer and the employee pay a share of the tax for old-age, survivors, and disability insurance. See
The effect of using state funds appropriated for the state salary supplement to pay for the employer's share of employment taxes on the supplement would be to shift the burden of those taxes from the employer to the employee. Given the presumption in state and federal law that a public employer will pay the employer's share of employment taxes, we believe an express legislative statement is necessary to shift responsibility for the employer's share of the employment taxes on a state salary supplement from the employer to the employee. Section 46.0031 contains no such express statement. Therefore, we conclude that the legislature did not intend the state funds provided for the county attorney salary supplement to be used to pay the employer's share of employment taxes on the salary supplement and that other funds must be used to pay those taxes.
Furthermore, we note that the legislative history supports the conclusion that the legislature did not intend for the state-provided funds to be used to pay for the county's share of employment taxes on the salary supplement. As you point out, the House Committee on Judicial Affairs amended the introduced version of House Bill 804 to insert the term "salary" in the phrase "state supplemental compensation" to create the phrase "state supplemental salary compensation" in the house committee report. Compare Tex. H.B. 804, 76th Leg., R.S. (1999) (as Introduced, Jan. 20, 1999), with Tex. H.B. 804, 76th Leg., R.S. (1999) (House Committee Report, Apr. 20, 1999). We agree that this amendment is significant. The terms "salary" and "compensation" have different meanings in certain contexts. As a general rule, "compensation" is a more comprehensive term than "salary," see Tex. Att'y Gen. Op. Nos.
Given the special, more limited meaning of the term "salary," we believe that the legislature's insertion of this term into House Bill 804 indicates that the legislature intended that the state-provided funds be used for salary and not for non-monetary benefits such as the county's share of employment taxes. The legislative testimony and debates do not indicate a contrary intent. See Hearings on Tex. H.B. 804 Before theHouse Comm. on Judicial Affairs, 76th Leg., R.S. (Apr. 12, 1999); Debateon Tex. H.B. 804 on the Floor of the House, 76th Leg., R.S. (May 7, 1999); Debate on Tex. H.B. 804 on the Floor of the House, 76th Leg., R.S. (May 8, 1999); Hearings on Tex. H.B. 804 Before the Senate Comm. onFinance, 76th Leg., R.S. (May 12, 1999); Debate on Tex. H.B. 804 on theFloor of the Senate, 76th Leg., R.S. (May 21, 1999). Furthermore, the fiscal notes on House Bill 804 prepared by the Legislative Budget Board do not address the issue of employment taxes. Although two early fiscal notes stated that the bill would have "[n]o fiscal implication to units of local government," Fiscal Note, Tex. H.B. 804, 76th Leg., R.S. (Apr. 8, 1999); Fiscal Note, Tex. H.B. 804, 76th Leg., R.S. (Apr. 14, 1999), the third and final fiscal note stated that the bill would have "[n]osignificant fiscal implication to units of local government," Fiscal Note, Tex. H.B. 804, 76th Leg., R.S. (May 11, 1999) (emphasis added), thus indicating that the bill might have some minor fiscal implication for counties.
In sum, section
You also ask whether it is within the constitutional authority of the legislature "to grant salary supplements to county elected or appointed officials or county employees that would increase the count[y's] payroll matching cost of benefits and other payroll expenses." Request Letter at 1. Article
Yours very truly,
JOHN CORNYN Attorney General of Texas
ANDY TAYLOR First Assistant Attorney General
CLARK KENT ERVIN Deputy Attorney General — General Counsel
ELIZABETH ROBINSON Chair, Opinion Committee
Mary R. Crouter Assistant Attorney General — Opinion Committee