Hon. Douglas A. Newton Opinion No. C-110

DistrictAttorney 63rd JudicialDistrict Courthouse Del Rio, !J!exae Re:

Dear Mr. Newton:
You have requested the opinion of this office aa to the Amount of salary due retired judges called to active duty under the provisionsof' Article 2OOa, V.C.S.

correct amount of salary that 1s payable to a retlred district judge who Is called to active duty on the bench by the Preeldlng Judge of an Admln$straflve JudicialDistrict,unaer the provisionsof Article 2OOa, Vernon's Civil Statutes. Section 5a.of Article 200a, V.C.S., reads in part a8 follows:

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'IThe compensation,salariesand expenses of such (retired) judges wh&le 80 assigned or reassigned shall be paid ln accordancewith the laws of the state, except that the salary of such retired judges shall be paid out of moneys appropriated from the Qeneral Revenue Fund for such purpose in an amount repreeentlngthe differencebetween~allof the retirementbenefits of such judge as a retired district judge and the salary and compenaatlonfrom all sources of the judge of the court wherein he Is amlgned, and determlnedpro-rata for the period of time he actually sits a8 such assigned judge. Added Acte 1957# 55th Leg., plied) p. 1.236; ch. 408, sec. 1." ,(FimphaslssupSince the pa&age of thls Act, the Comptrollerof Public Accountshas Interpretedthe above provision to mean that the payment6 from the General Revenue Fund shall bk made for only iztepart of the regular judge's salary that Is paid by the

The Comptroller'sconstructionoperates to exclude from the c&nputationany salary that la.recelvedby the regular judge from the county because of admlnletratlve duties or memherehip on a juvenileboaxd.~ A county la, authorizedor directed to make

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Hon. Douglas A. Newton, Page 2.

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these payments to a regular judge by virtue of statute,and these paymentsbecome part of the salary of the regular districtjudge. Holland v. Harris County, 129 Tex. 118, 102 S.W.2d 196 (1937). The Comptrollerviews the Holland case, supra, as authority for Ns position that the State l-red to pay only the pro rata part of the regular district judge's salary that Is received from the State, relying on the fact that the Holland case held that Harris County was required to pay to Ju&ge Holfand a pro rata share of what it normallypaid to the regular district judge for Ns activitiesIn connectionwith the juvenileboard of the county. Holland does not support the position of the ComptrollerIn this regard, for the followingreasons: (1) Holland was concernedwith a special judge appointedunder the iTFGZ%Tons of Article 6821, V.C.S.; (2) Article 6821, V.O.S., provides that a special judge shall receive the "ssme pay" as a regular district judge, but makes no specialprovisionas to the source of that pay. It seems quite olear then, and the Holland case so assumed, that the pay for the special judge was to from the same sources a8 the pay of the regular judge. Insofar as an Interpretation of Article 2OOa la concerned,the Holland case Is authority only for the propositionthat statutory compensationfor admlnlstratlve duties or juvenileboard duties Is consideredto be part of a judge's 'Pegular salary.
It should be noted that In 1961, the Legislatureenacted Articles 6819a-19b, 6819a-25aand 681ga-26: These statutes apply respectivelyto Harris County, Bexar and Dallas Counties, and to Tarrant County. each statute,we will Since the phraseologyIs similar In

one of them, Article 68 uote the pertinentportion from only 19a-19b: "Section 1. (a)

. . . Any district judge of the State who may be assigned to sit for the judge of any district court In such countiesunder the provisions of Article 200-A, Revised Civil Statutes,may, while 80 serving,receive In addition to Ns necessaryexpenses, additionalcompensationfrom county funds In an amount hot to exceed the differencebetween the pay of such visiting judge from all sources and that pay received from all sourcesby district judges In the counties affectedby the provisionsof this Act, such amount to be paid by the county upon approval of the presiding judge In which said court Is located."
It is the contentionof the Comptrollerthat the above cited statutesbuttress their constrmotlonof the language of Artlcle 2OOa, In that here the Legislaturehas clearly expressed an Intentionto impose upon the counties the burden of paying their share of the costs of assigninga retired judge to sit.

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We do not agree with that view of the action taken by the Leglslature In the above cited statutes.

6819a-2z the enactmentof Articles 6819a-lgb,6819a-25a,and

the Legislaturehas clearlyplaced upon the particular counties concernedthe burden of paying the compensation bf retired judges calledunder the provisions of Article 2OOa. The counties concernedwith these enactmentsare the largest In this State, &nd presumablythe ones most able to meet any unexpeoted financialoutlay, euch as the salary of,sn additionaldlstrlct court judge. We must further note that, at the same session of the Legislaturethat ,enacted the three statutes above referred to, granting additionalcompensationto district judges of certain counties,the Legislatureenacted five other similzix statutes, 'affectingsmaller oountles , and excluded the provision for county payment of expenditures necessitatedb the calling of a.retlred 8% under Article 2OOa. (Articles6&a-lga, 681ga-27, 6819a-, lga-29, 6819a-30).This Is compellingevidence of the Leglslailve Intent, and must override the Departmentalconstruction placed upon It by the Comptroller.

In view of the foregoing,we must hold that' the plain languageof Article 2OOa, sectlon 5a, V.C.S., Is controlling. A retired judge assignedunder the provisions of the Act Is entitled to have his compensation based upon the total~statutory salary of the district judge for whom he Is assigned,regardless of whether such salary comes from the State or from the county and shall be paid out of moneys approprlated,from the GeneralRevenue Fund for such purpose.

SUMMARY' When a retired district judge Is assigned under the provlslons of Article 2OOa, V.C.S., his compensatlon~ls to be baaeU upon the total,statuto??ysalary of the dlstrlot judge for whom he Is assigned,regardlessof whether such salary comes from the Sta$e or from the county and shall be paid out of

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moneys appropriatedfrom the General Revenue Fund for such purpose.
Yours very truly,
WAGGONER CARR AttorneyGeneral

MLQ:jh:zt

APPROVED: OPINION COMMITPEE
W. V. Geppert, Chairman Pat Bailey Frank Booth Cecil Rotsch HowardMaya
'APPROVEDFOR THE ATpORNi%MNEFiAL By: Stanton Stone

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