P
May 13, 1987
Mr. 3. F. Flack - opinion No. JM-695
Harris County Auditor
800 County Administration Bldg. Re: Compensation for criminal
1001 Preston district judges while sitting
Houston, Texas 77002 as magistrates
Dear Mr. Flack:
We are in receipt of a copy of a letter from the Harris County
Attorney in which he declines to answer your questions. See Govt.
Code 541.007. We accept your request for an opinion on thrissues
presented as fklows:
(1) The District Judges trying criminal cases
in Elarris Cqunty are currently sitting as magis-
trates, on a rotating basis, during all weekends
an&holidays. Those judges are not receiving any
additional compensation for that service. Can
Harris County pay those judges additional ccm-
pensation and/or benefits for that service, and if
so.'would the state reduce the compensation to the
District Judges under the authority of article 4
of the Appropriation Bill?
(2) Can the District Judges trying criminal
cams be allowed additional compensation for per-
forming judicial magistrate functions during non-
scheduled district court hours seven days a week?
Section 32.101 of the Government Code.states:
(a) The Commissioners Court of Earris County
shall budget for and pay the judges of the
district courts having jurisdiction in that county
an annual salary of not less than $12.000 nor more
than $25,000 for judicial and administrative
services.
(b) The salary shall be paid in equal monthly
installments from the county general fund or
officers' salary fund.
p. 3220
Mr. J. F. Flack - Page 2 (JM-695)
(c) The salary is in addition to the salary
paid by the state.
Section 1 of article 6813b, V.T.C.S., "Salaries of state officers
and empioyees for biennium; exceptions," provides:
All salaries of all State officers and State
employees, including the salaries paid any
-individual out of the General Revenue Fund, shall
be in such sums or amounts as may be provided for
by the Legislature in the biennial Appropriations
Act. It is further provided that in instances
vhars the biennial Approprxations Act does not
specify or regulate the. salaries or 'compeusa-
tion of a State official or employee, the law
specifying or regulating the salary or compensa-
tion of such official or employee is not suspended
by this Act. (Emphasis added).
The biennial appropriations act for the period beginning
September 1, 1985 and, ending August 31, 1987 (Acts 1985, 69th Leg.,
ch. 980, art. IV, at budget 437) sets the salary to be paid a district
judge at $54,500 per year.
In your letter you state that "Barris County District Judges
currently receive $1.000.00 less annually than the appellate court
justices."
The General Appropriations Act (Acts 1985. 69th Leg., ch. 980.
art. IV, at budget 442) contains the following:
Sec. 2. Salary Differential for District Court
Judges and Justices of Courts of Appeals. District
Court Judges may receive a combined yearly salary
rate from state and county sources which is One
Thousand Dollars ($1,000) less than the combined
yearly salary rate from state and county sources
received by Justices of the Courts of Appeals
in whose district the District Court is located.
Justices of the Courts of Appeals may receive a
combined yearly salary rate from state and county
sources which is One Thousand Dollars ($1,000) less
than the yearly salary provided in this Act for an
Associate Justice of the Supreme Court and the
Court of Criminal Appeals. In the case of Chief
Justices of the Courts of Appeals, the differential
shall be five hundred dollars ($500).
In order that the differential set out above be
maintained. each District Court Judge and Justice
of the Courts of Appeals shall file a sworn
p. 3221
Hr. J. F. Flack - Page 3 (JM-695)
statement with the Comptroller of Public Accounts
setting forth the yearly amounts co be received
from state and county as salary payments during the
ensuing fiscal year. Amended statements shall be
filed setting forth any change in the salary rate
which occurs during a fiscal year.
For the purpose of salary payments by the state;
the Comptroller of Public Accounts shall determine
from the filed statements that the required salary
differential set out above is maintained. In the
event a salary is in excess of the On.e Thousand
Dollars ($1.000) differentiai. the Comptroller is
directed to reduce the state's portion of that
salary by the amount of excess, except in the case
of the Chief Justictis in thl h Courts of Appeals
where the differential shall be Five Hundred
, Dollars ($500).
The appropriations for salaries of District
Court Judges and Justices of courts of Appeals are
made contingent upon strict compliance with the
provisions of this section and the Comptroller
shall have- no authority to issue a warrant for
salaries which violate these provisions. (Emphasis
added).
Since Harris County judges are currently receiving a combined
salary from the state and county which is $1.000.00 less than that of
the appellate court justices, it is our opinion that Harris County may
not pay the district judges any additional salary or compensation for
sitting as magistrates during weekends, holidays and nonscheduled
district court hours that would not result in a corresponding reduc-
tion in the state's' portion of the salary. In the event that the
judges' salaries rise above the $1.000.00 differential, we are of the
~opinion that the comptroller is required to reduce the state's portion
of the salaries by the amount of the excess.
You call our attention to section 32.303 of the Government Code,
which authorizes:
The commissioners courts of Bexar. Dallas,
Harris, and Tarrant coupties may pay the judges of
the district courts in their counties an auto-
mobile allowance in an amount set by the commis-
sioners court for automobile expenses incurred in
performing official duties.
We are of the opinion that you are correct in concluding the
automobile allowance would not be considered supplemental salary paid
p. 3222
Mr. J. F. Flack - Page 4 (JM-695)
by Harris County, but would be an amount for an expense incurred in
performing official duties.
SUMMARY
Since the District Judges of Harris County
are currently receiving a combined yearly salary
(from the state and the county) which is only
$1.000.00 less than the combined yearly salary
received by the Justices of the Courts of Appeals
(in whose district the district courts are
located). Harris County may not pay the district
judges additional compensation or salary for sit-
ting as magistrates during weekends, holidays and
nonscheduled district court hours under the
appropriations act (Acts 1985, 69th Leg., ch. 980,
art. IV, at budget 442) that would not result in a
corresponding reduction in the state's portion of
-the salary. In the event the salary or compenea-
tion rises above the $l,OOO.OO differential, it is
the duty of the comptroller, under the biennial
appropriations act. to reduce the state's portion
of that salary or compensation by the amouut of
the excess.
g---h
MATTOX
Attorney General of Texas
JACKHTGHTOWHH
First Assistant Attorney General
MARY XELLER
Executive Assistant Attorney General
JUDGE ZOLLIE STEANLEY
Special Assistant Attorney General
RICX GILPIN
Chairman, Opiaiou Committee
Prepared by Tom G. Davis
Assistant Attorney General
p. 3223