*-rrogPNEB- C;ENEi?L‘uL
November 1, 1962 Affirmed
by~....~...~~
\ _~~~
..~- - I
Honorable Robert B. McLealsh, Jr.
County Auditor
Hldalgo County
Edinburg, Texas
Oplhion No. WW-1466
Re: Questions relative to
proper funds to be used
to pay the traveling ex-
pense of a presiding
judge and his court re-
porter under the stated
Dear Mr. McLeaish: facts.
Your request for an opinion reads as follows:
"As you are well aware, citizens of the
Lower Rio Grande Valley have for a number of
years been involved in litigation of the~,now
famous 'water suit,' Cause No. ~-20576 and
styled THE STATE OF TEXAS vs. HIDALGO COUNTY
WATER cC)NTKOLAND-NT EsRfCT NO. 18,
AL Thl it h become a good bit
sex as EhFyearE'have gone by and at"%:
present time is complicated by a number of
factors. Among those factors which make the
'water suit' unique are the following:
"1. The suit is one In which there
are numerous litigants hailing from four
counties: Hidalgo, Cameron, Starr and
Wlllacy Counties.
"2. The presiding judge of the 93rd
Judicial District of the State of Texas,
which court Is trying the water suit, was
disqualified by both the Court of Appeals
and the Supreme Court of Texas.
“3. Chief Justice Calvert, rather
than the administrative judge of the Fifth
Judicial Administrative District, appointed
Hon. Robert B. McLealsh, Jr., page 2 (~~-1466)
a judge to try this case. Judge J. H.
Starley, of Pecos, was appointed by
Chief Justice Calvert to preside over
the water suit. Judge Starley has
found it necessary to bring this court
reporter with him when traveling to
this county in connection with his judi-
cial duties here.
“4.. Administrative as well as judi-
cial problems are Involved In the trial
of the water suit.
“5. To aid In administration ~of the
water use from time to time, a fund has
been created by contribution of the water
users which enables them to pay for the
services of a water master, various employ-
ees under the water master, various profes-
sional fees and other expenses. The users
are charged as follows: Farmers pay 3#
per acre quarterly or 54 per acre foot
used quarterly, whichever is greater; each
city has a specific weekly water allotment
and pays 654 per acre foot quarterly on
this weekly water allotment or 5q! per acre
foot on the water used during the quarter,
whichever is greater.
"As a result of these unique features of the
water case that is now being tried in the 93rd
Judicial District Court of the State of Texas,
which Court is located in Hidalgo County, Texas,
several questions have arisen:
"1. Since the presiding judge of
the water suit, Judge Starley, finds it
necessary to travel great distances and
live away from home for extended periods
of time, is It legal to pay Judge Starley
from the fund that has been created by
contributions from the various users? If
it is legal to pay Judge Starley's expenses
and the expenses of his reporter from this
fund, exactly what procedure would be fol-
lowed in providing for these expenses?
"2. If it is not legal to pay Judge
Starley and his reporter from the water
Hon. Robert B. McLeaish, Jr., page 3 (~~-1466,)’
users' fund, must Hidalgo County bear
the entire cost of travel expenses of
Judge Starley and his reporter? If it
is not necessary for Hidalgo County to
bear this entire cost and the costscan
be spread among the other counties in-
volved In the water suit, what procedure
and what basis of proration must be made
to allow the other countles,to pay their
prorated share of the cost of the water
suit?"
Subdivisions 3 and 4 of Section 2a and Section 10 of
Article 200a, Vernon's Civil Statutes, provide as follows:
“(3) In addition to the method set forth
In this Act for the assignment of judges by the
Presiding Judges of the Administrative Judicial
Districts, the Chief Justice shall have the power
to designate and assign judges of one or more
Administrative Judicial Districts for service in
other Administrative Judicial Districts whenever
he deems such assignment necessary tomthe prompt
and efficient admin,istrationof j,ustlce. Judges
so assigned by the Chief Justice shall perform
all the duties and functions authorized In this
Act the same as If they had been so designated
and assigned by the Presiding Judges of the Ad-
ministrative Judicial Districts.
"(4) In addition to, and cumulative of, all
other compensation and expenses authorized by law
and this Act, judges who are required to hold
court outside their own districts and out of 'their
own counties under the provisions of this Act,
shall receive a per diem of Twenty-five ($25.00')
Dollars for each day, or fraction thereof, which
they spend outside their said districts and
counties in the performance of their duties; such
additional compensation to be paid In the same
manner as their salaries are paid by the State upon
certificates of approval by the Chief Justice or
by the Presiding Judge of the Administrative Judl-
cial D1strii.tin which they reside."
"Sec. 10. When the district judges are as-
signed under the provisions of this Act to dls-
tricts other than their own district, and out
of their own counties, they shall, in addition
Hon. Robert B. McLeaish, Jr., page 4 (~~-1466)
to all other compensation permitted or au-
thorized by law, receive their actual ex-
penses in going to and returning from their
several assignments, and their actual living
expenses while in the performance of their
duties under assignments, which expenses
shall be paid out of the General Fund of
the county in which their duties under as-
signments .are performed, upon accounts certi-
fied and approved by the Presiding Judge of
the Administrative District."
In view of the foregoing provisions and under the facts
submitted, the presiding judge is entitled to $25.00 per day
for each day or fraction thereof spent outside of his district,
in addition to and cumulative of all other compensation and
expenses authorized by law, and is entitled to his actual ex-
penses in going to and returning from and his actual living
expenses while in the performance of his duties under the as-
signment.
We know of no constitutional or statutory authoriza-
tion which would permit a judge hearing a case to be paid from
a fund consisting of contributions made by parties interested
in the outcome of a particular suit. You are therefore advis-
ed in answer to your first question that the presiding judge
cannot be paid traveling expenses or compensation from,the fund
?!hichhas been created by contributions of various water users.
In answer to your second question, the presiding judge is to
be paid his actual expenses outlined above from the General
l%nd of Hidalgo County (Section 10 of Article 20Ca, V.C.S.),
and Is to be paid the $25.00 per diem by the State (Section 2a
of Article 200a).
We know of no provision either in the Consti.tutlonor
statutes of this Sta,tewhich authorizes the payment of travel-
ing expenses of a court reporter. His compensation consists
of salary and fees for the preparation of statements of fact.
You are therefore advised that the traveling expenses incurred
by the court reporter may not be paid by the State or County.
The preceding sentence is not to be construed as passing on
the authority of the parties to contract with the court reporter
to perform services for the use and benefit of parties seeking
the services of a court reporter.
SUMMARY
A judge on an assignment to hold court
outside his own district pursuant to the
Hon. Robert B. McLeaish, Jr., page 5 (~~-1466)
nrovisions of Article 200a, Vernon's
Civil Statutes is entitled to receive
a per diem of $25.00 for each day or
fraction thereof which he spends out-
side his district and his actual liv-
ing expenses, together with his actual
traveling expenses going to and return-
ing from his assignment. All of the
foregoing is in addition to and cumu-
lative of all other compensation au-
thorized by law.
Yours very truly,
WILL WILSON
Attorney General of Texas
JR:ms
APPROVED:
OPINION COMMITTEE
W. V. Geppert, Chairman
Iola Wilcox
W. 0. Shultz
Dudley McCalla
Scranton Jones
REVIEWED FOR THE ATTORNEY GENERAL
By: Leonard Passmore