Q The county resolved to pay the employer portion of PERS on constable fees, under Section 25-11-106(1) (b) (iii). Since that time, in accordance with PERS rules and written and verbal instructions, the county withholds 11% of the constable’s gross fees, reported as both employer and employee contributions. May the county now directly pay the employer portion and withhold only the employee portion? If, upon filing the annual financial report (“AFR”), the constable is determined to have paid some part of the employer contributions, may the county reimburse that to the constable?

A If the county has passed a resolution spread upon the minutes to be responsible for the employer contribution on the constables’ net fee income, and then the county may determine which portion of the 11% constitutes the employer portion and pay that portion directly to PERS. If under these circumstances it is determined, upon filing of the constable’s AFR, that the constable has paid some portion of the employer part, the county may refund that amount to the constable. However, the county is not authorized to refund amounts for prior periods in which the county had not authorized payment of the employer contribution pursuant to Section 25-11-106. (Attorney General’s Opinion to Houston, April 3, 2015)