# THE ATITORNEY GENERAL OF TEXAS

The Honorable Robert S. Calvert Comptroller of Public Accounts State Finance Building Austin, Texas Opinion No. H-12 3
Re: Supplementation of salaries of district court judges and justices ofthe Courts of Civil Appeals under House Bill 139, 63rd Legislature,
Dear Mr. Calvert: the General Appropriations Bill
You have requested our answers to a series ofquestions concerning the Judiciary Article of House Bill 139 ofthe 63rd Legislature, the General Appropriations Bill for fiscal 1974-1975. The questions involve the maximum rates of compensation of district court judges andjustices ofthe courts of civil appeals, The Constitution, inArticle 5, $$ 2, 6and 7, generally authorizes the Legislature to fix the salaries ofjudges ofthe Supreme Court, the courts of civil appeals and the district courts. Article 6819, Vernon’s Texas Civil Statutes, derived from laws in effect prior to the 1925 codification, set the salaries ofthose jurists,at $6,506, $5,000 and $4,000, respectively. While neither has ever been expressly repealed, Article 6819 with Article 6813, -which sets the annual salaries of numerous other state officers at’sums ranging from $1,250 for members ofthe Live Stock Sanitary Commission to $6, 000 for the Banking Commissioner (the Governor was to get only $4, 000). ,was impliedly repealed by the enactment ofArticle 6813b, V. T. C. S., and other similar acts dating back to 1933. Article 6813b provides thsrtall salaries of all state officers and employees will be set by the biennial appropriations bill. “All laws and parts oflaws fixing the salaries of all state officers and employees

. . . are hereby specifically suspended insofar as they are in conflict with this Act

. . . . ”

p. 593The Honorable Robert S. Calvert, page 2(H-123)

Article 6819a-18a provides that commissioners courts in counties comprising each ofthe fourteen supreme judicial districts may supplement the salaries ofthejustices ofthe courts of civil appeals residing inthat district upto $8, 000 per year but not to exceed “the total additional compensation authorized to be paid to a2 District Judge residing within such affected Supreme Judicial District. ”
Various other subdivisions ofArticle 6819a provide for the supplementation ofthe salaries of district court judges by county commissioners courts within their districts for varying amounts and for varying purposes. For example, Article 6819a-22, V. T. C. S., applicable to Travis County, authorizes its commissioners court to pay the district judges or the districts within the county “a reasonable sum not to exceed Six Thousand Dollars”

“for services rendered to Travis County, and for performing administrative duties. ” Supplements are authorized as high a~8$12,000 per annum. Articles 6819a-19b and 6819a-25a, V. T. C. S.
House Bill 139 app<ropriates, as annual salaries, $40, 500 for Chief Justice ofthe Supreme Court, $40, 000 for each associate justice ofthat court, $35, 500 for the chief justice of each court of civil appeals, $35,000 for each as’sociate justice ofthose courts , and $25,000 for each judge of each district court. Itthen provides, as $2ofthe Judiciary Article (p. I-17):

“Sec. 2. Salary Differential for District Court Judges and Judges of Courts of Civil 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 Judges ofthe Courts of Civil Appeals’ inwhose district the District Court is located. Judges of the Courts of Civil 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 inthis Act for an Associate/ Justice ofthe Supreme Court and the Court of Criminal Appeals.

p. 594The Honorable Robert S. Calvert, page 3 (H-123)

“In order that the differential set out above be maintained, each District Court Judge and Judge ofthe Courts of Civil Appeals shall file a sworn statement with the Comptroller of Public Accounts setting forth the yearly amounts to be received from state and county as salary payments during thenensuing fiscal year. Amended statements shall be filed setting forth any change inthe salary rate which occurs during afiscal 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 maintaine’d. Inthe event a salary is in excess ofthe one thousand dollar ($1, 000) differential, the Comptroller is directed to reduce the state’s portion ofthat salary by the amount of excess. “The appropriations for salaries of. District Court Judges and Judges of Courts of Civil Appeals are made contingent upon strict compliance with the ‘provisions of this section and the Comptroller shall have ‘noauthority to issue awarrant for salaries which violate these provisions. ” The foregoing statutory provisions (including those ofthe Appropria- .tions Act) lead to some general observations which will help in answering your questions:
1. There is no statutory provision for supplementing the State salaries of Supreme Court justices with m funds. Therefore, the maximum salaries of Supreme Court associate justices, is that fixed in the Appropriations Bill - $40,000.
2. Justices ofthe courts of civil appeals may receive no more than $39,000 from state and county sources. Any county supplement which results in a larger total salary than $39, 000 would result ina corresponding reduction in the amount appropriated out of,state funds.

p. 595The Honorable Robert S. Calvert, page 4 (H-123)

3. The salaries payable tojustices of courts of civil appeals are further limited by Article 6819a, V. T. C. S., not to exceed the supplement authorized tobe received byw district judge within their district. We construe this to mean the highest supplement authorized tobe received by any district judge inthe district.
4. Even though authorized to receive a greater supplement from the counties comprising his district, a district judge may receive no more from combined state and county sources than $1,000 less than is received from thosecombined sources by ajustice ofthe court of civil appeals of the supreme judicial district or districts inwhich the district court is located;
Your first question asks:

“Which ofthe rates of salary appropriated to the Court of Civil Appeals would be used in [computing the maximum salary ofa district judge], the $35,000 for the twojudges, or the $35,500 rate for the Chief Justice ofthe Court of Civil Appeals? ” The formula established by the Appropriations Bill has,a theme of insuring that membership on an appellat’e court will result in compensation ofatleast $1,000 more than the salary provided ajudge on alower court inthejudicial hierarchy.
Itis our opinion that the salary ofan associate justice ofthe appropriate court of civil appeals, including any supplementation, is the relevant benchmark against which the supplementation ofthe salary of a district judge is to be measured in order to accomplish the apparent object and policy ofthe Legislature adopting the salary differentials. Counts v. hiitchell, 38 S.W. 2d 770 (Tex. 1931). Therefore, ,inansv.e r toyour first question, the salary ofajudge of a district court located inthe district of a court of civil appeals whose justices receive no salary supplementation from counties may not be more than $34, 000 per year. Ifthe district court is located inthe district ofa court of civil appeals whose justices receive a salary supplement from counties, the maximum .salary for the district judge would be $1,000 less,than the combined yearly salary received from state and county sources by the associate justices ofthe court of civil appeals inthat district.

p. 596The Honorable Robert S. Calvert. page 5(H-123)

Your second and third questions ask:

“Section 2also reads inpart, ’

. . . Judges ofthe Courts of Civil Appeals may receive a combined yearly salary rate from State and County sources vhich is one,thousand dollars (1,000) less than the yearly salary pr.ovided inthis Act for an Associate Justice of the Supreme Court and the Court of Criminal Appeals

. . . ’

“2. Would the Chief Justice ofa Court of Civil Appeals be .limited in salary by this provision?

“3.~ Ifyour answer to Question 2is inthe affirmative, would the Chief Justice be limited to a combined salary not to exceed $1,000 less than $40,000 for Associate Justices of the Supreme Court or not to exceed $1,000 less than $40, 500 which is the salary ofthe Chief Justice ofthe Supreme Court? ” The language ofthe Appropriations Bill refers to “Judges ,ofthe Courts of Civil Appeals”

. Throughout the Judiciary Article, the term

“judges” is used generically and should be construed to include chief justices -ofthe courts of civil appeals as well as associate justices. To exclude chief justices from the group ofjudges Dfthe courts of civil appeals would result in an omission of any mention of chief justices from the salary supplementation section ofthe Bill, a result which would ‘beillogical and clearly contrary to legislative intent. A statute will not be construed in such away as to produce an absurd result. Oriental Hotel Co. v. Griffiths, 33 S.W. 652 (Tex. 1895).
Itis our opinion that all judges ofthe courts ,ofcivil appeals, including chief justices as well as associate justices, are limited to a salary not to exceed $1,000 less than the yearly salary of an associate justice ofthe Supreme Court. See Attorney General Letter Advisory No. 26 (1973).
Your fourth and fifth questions ask:

p. 597The Honorable Robert S. Calvert, page 6(H-123 )

“4. Brazos County composes the 85th Judicial District alone and is in the 10th Court of Civil Appeals as well as the 1st and 14th Courts of Civil Appeals. Could the District Judge ofthe 85th Judicial District choose which Court of Civil Appeals he is under for the salary limitation?

“5. District Court No. 1is composed ofJasper, Newton, Sabine, and San Augustine counties. Newton andJasper counties are in the 9th Court of Civil Appeals, and Sabine and San Augustine Counties are in the 12th Court of Civil Appeals. Would the district Judge be limited to the supplemental pay from the counties, [i]f any, as that paid by the counties ofthe 9th Court of Civil Appeals or that paid by the counties ofthe 12th Court of Civil Appeals? Would the county of residence ofthe District Judge have abearing onthis question?” The Bill requires a district judge’s salary tobe $1,000 less than “the combined yearly salary rate from state and county s~ources received by Judges ofthe Courts of Civil Appeals inwhose district the District Court is located” andthe fourth paragraph of $2 calls for strict compliance with the provisions ofthe section. One apparent purpose ofthe statutory scheme is to insure that no district judge receives a greater salary than ajustice of a court of civil appeals embracing the same district. A district judge’s salary from all sources must, therefore, be measured against the lowest salary ofanyjustice ofany court of civil appeals whose jurisdiction includes that district. The judge ofthe 85th Judicial District may receive a salary which is not more than $1,000 less than the lowest salary of.ajustice of the courts of civil appeals for the lst, 10th or 14th districts. The judge of the First Judicial District is limited to a salary measured against theslowest salary paid to anyjustice of either ofthe courts of civil appeals for the 9th orl2th districts.
Your final question is:

“6. Incertain Courts of Civil Appeals only one c,ounty supplements the salaries ofthe Judges of said courts, would this supplementation regulate the salary to be. paid to aDistrict Judge whose district is in the Civil Judicial District, butwhose county or counties do not supplement the salaries ofthe.Civil Appeals Judges?”
p. 598The Honorable Robert S. ~Calvert, page 7(H-123)

The Act does not require that aparticular county supplement the salaries ofjustices ofa court of civil appeals before it may supplement the salary of a district judge. The only requirements are that,the district.judge’s salary be at least $1,000 less than the lowest salary of a member of any court of civil appeals inwhose district the district court is wholly or partially located and that the total salary supplement paid ,a, justice of a court of civil appeals not exceed the total additional compensation authorized to be paid to any district judge residing inthe affected supreme judicial district. Article 6819a-18a, V. T. C.S. Provided.the Legislature has authorized supplementation ofthe salary ofthejudge of aparticular district court, it may be supplemented regardless ofwhether the county also contributes to supplement the salaries ofjustices.of the court of civil appeals.
Inconnection with your request, District Attorney Robert 0. Smith ofTravis County has asked “whether or not compensation received as a member ofthe Travis County Juvenile Board is properly included inthe total amount paid the District Judges in Travis County for the purpose of determining their entitlement to an increase under the General Appropriations Bill ofthe 63rd Legislature? ‘I Section 2ofArticle 5139KK, V. T. C.S., applicable to Travis County, creates a County Juvenile Board.composed of the county judge and thejudges ofthe civil and criminal district courts of the county. Itprovides in 02:

“As compensation for the added duties imposed upon the members ofthe Juvenile Board, each member thereof shall receive the sum of Forty-eight Hundred Dollars ($4, 800.00) annually, to be paid in equal monthly installments out ofthe general fund of said county. Such compensation shall be for all judicial and administrative services thereafter to be assigned to them as members ofthe Juvenile Board, and shall be in addition to all,other compensation allowed or hereafter to be allowed by law for County Judges and District Judges. I’ (Emphasis added) A district judge is not “entitled” to.salary supplementation by a county under the terms ofthe General Appropriations Bill, although other statutes may require a county toprovide additional compensation. The General Appropriations Bill merely establishes a ceiling for the “combined yearly salary rate from state and county sources” which a district judge may receive. Article 5139KK, $2, V. T. C. S., provides that the $4,800 is

p. 599The Honorable Robert S. Calvert, page 8(H-123)

compensation for added duties required ofmembers ofthe Juvenile Board and is “in addition to all other compensation allowed or hereafter to be allowed by law for

. . . District Judges. ” Inour’ opinion, however, it is for services rendered as ajudge. See Jones v. Alexander, 59 S.W. 2d 1080 (Tex. 1933). To permit judges to hold two offices, for each ofwhich they were compensated, would run counter to 5$ 33 and 40 ofArticle 16 ofthe Constitution ofTexas.
We are ofthe opinion, therefore, that the additional $4, 800. 00paid to district judges of Travis County for service Dnthe Juvenile Board is a part oftheir “combined yearly salary rate from state and county sources” and enters< into the determination ofthe amount of salary they may receive from the State under the General Appropriations Bill. Ifthe ,justices of thecourt of civil appeals for the Third Supreme Judicial District, which embraces Travis County, receive $39,000 per annum, then the district judges may receive the $4, 800 required by Article 5139KK, and the full $6,000 authorized by Article 6819a-22 or atotal of $35, 800 including the State appropriation. Ifthejustices ofthat court of civil appeals receive less than atotal of $36,800, then the district judgesof Travis County will be limited inthe amount their salaries may be supplemented. Compare Attorney General Opinion H-96 (1973).
SUMMARY Chief justices and associate justices of courts of civil appeals receive from the State as ,their salary $35, 500 and $35, 000, respectively, Inaddition, their salaries may be supplemented by the counties intheir, respective districts by no

### more than $8,000 limited by the provision that the combined salary may not exceed $39, 000 and the,added provision that the supplemental pay may not exceed that authorized to be.paid for s district judge residing within the district.

p. 600The Honorable Robert S. Calvert, page 9(H-123)

The state salary paid to district judges is $25, 000 per year. Their salaries may be supplemented by the counties comprising their districts as provided inthe various statutes applicable to different districts. In any event, the combined salary from all state and county sources must be at least $1,000 less than the salary of any associate justice ofa court of civil appeals whose district encompasses the district court. Very truly yours,

JOHN L. HILL Attorney General of Texas APTROVED:

DAVID M. KENDALL, Chairman Opinion Committee

p. 601