OFFICE OF THE ATTORNEY GENERAL . STATE OF TEXAS 

JOHN CORNYN 

December 3,200l 

The Honorable Susan D. Reed 

Bexar County Criminal District Attorney 

300 Dolorosa, Fifth Floor 

San Antonio, Texas 78205-3030 

Opinion No. JC-0438 

Re: Longevity pay for certain assistant 

prosecutors (RQ-0397-JC) 

Dear Ms. Reed: 

You have asked this office several questions regarding a recent amendment to chapter 41 of 

the Government Code, which adds subchapter D thereto mandating longevity pay for assistant 

prosecutors who have accrued at least four years of service.’ We conclude that the statute in 

question requires the county to make this payment whether or not the legislature has appropriated 

enough for the county to be reimbursed, that the payments may not be offset against any other 

portion of an employee’s compensation, and that the first four years of accrued service are counted 

in the calculation of the longevity pay. 

House Bill 178, enacted by the 77th Texas Legislature, adds subchapter D to chapter 41 of 

the Government Code. See Act ofMay 15,2001,77th Leg., R.S., ch. 378 Tex. Sess. Law Serv. 663 . 

(to be codified at TEX. GOV’T CODE ANN. $4 41.251-.257). House Bill 178 is effective on January 

1,2002, see id. at 665, and we will hereinafter refer to it as it will appear codified in the Government 

Code. Pursuant to this statute, an assistant prosecutor who has accrued at least four years of lifetime 

service is entitled to receive a longevity supplement. See TEX. GOV’T CODE ANN. 8 41.252(a). “The 

monthly amount of longevity pay is $20 for each year of lifetime service credit.” Id. 6 41.253(a) 

(emphasis added). The county “shall pay” this supplement out of its general fund and “may not 

reduce the salary ofthe assistant prosecutor to offset the longevity pay supplement.“Id. 5 41.255(a), 

(b). “The state shall reimburse a county for amounts expended for longevity pay supplements under 

this subchapter.” Id. 5 41.255(d). 

You ask first whether the county is obligated to pay the supplement whether or not the 

legislature has allocated sufficient funds to reimburse it. See Request Letter, note 1, at 1. Based 

upon your reading of the fiscal note accompanying the bill, you believe that there are not sufficient 

funds allocated for this purpose. See id. To decide whether in fact there were not sufficient funds 

so allocated would require factual determinations of a sort this office does not make in the opinion 

‘Letter from Honorable Susan D. Reed, Bexar County Criminal District Attorney, to Honorable John Cornyn, 

Texas Attorney General, at 1 (June 25,200l) (on file with Opinion Committee) [hereinafter Request Letter]. 
The Honorable Susan D. Reed - Page 2 (JC-0438) 

process. See Tex. Att’y Gen. Op. Nos. JC-0020 (1999) at 2; M-187 (1968) at 3; O-291 1 (1940) at 

2. In the event the legislature has not appropriated sufficient funds to recompense the counties for 

such payments, the counties have no claim against the state for them. See Mutchler v. Tex. Dept. of 

Pub. Safety, 681 S.W.2d 282,284-85 (Tex. App.-Austin 1984, no writ); Socorro Indep. Sch. Dist. 

v. State Bd. of Educ., 968 S.W.2d 547,553 (Tex. App.-Austin 1998, pet denied) (“If the Legislature 

did not see fit to provide funding for this mandate, [the court] cannot do it for them.“). 

On the other hand, the statute does not, as you correctly point out, “make a county’s 

obligation to pay a longevity supplement contingent on reimbursement from the state.” Request 

Letter, supra note 1, at 1. Rather, it requires that “the county shall pay [the supplement] . . . out of 

the county general fund.” TEX. GOV’T CODE ANN. 5 41.255(a). It is a well-established principle of 

statutory interpretation that “while the word ‘shall,’ when used in a statute may be and frequently 

is directory, the word is generally construed to be mandatory . . . .” Mutchler, 681 S.W.2d at 284. 

Moreover, the bill analysis for House Bill 178 confirms that the language is so intended: “The bill 

requires the county to pay a longevity pay supplement out of the county general fund and prohibits 

the county from reducing the salary of the assistant prosecutor to offset the longevity pay 

supplement.” HOUSE COMM. ON JUDICIAL AFFAIRS, BILL ANALYSIS, Tex. H.B. 178,77th Leg., R.S., 

(2001) (emphasis added). As this office has recently reiterated, duties imposed on local officials by 

the legislature must be performed regardless of whether sufficient resources are made available. See 

Tex. Att’y Gen. Op. No. JC-413 (2001) at 1: see also Tex. Att’y Gen. Op. No. H-595 (1975) at 2 

(statute imposing duty on sheriff to execute process “is absolute in its terms and an inadequate 

operating budget will not excuse a sheriffs failure” to comply with statutory duties). 

You next ask whether you may credit longevity pay currently provided pursuant to a county 

program to county employees generally to the $20 per month per service year payment to assistant 

prosecutors mandated by House Bill 178. See Request Letter, supra note 1, at 1. You may not. 

Section 41.253(a) requires that the county supplement assistant prosecutors’ pay by $20 per month 

for each year of lifetime service credit. See TEX. GOV’T CODE ANN. 0 41.253(a). Section 41.255(b) 

forbids the county to reduce the salary of an assistant prosecutor “to offset the longevity pay 

supplement.” Id. 8 41.255(b). Longevity pay is not merely a benefit, but is an element of salary. 

See Tex. Att’y Gen. LO-96-007, at 2 (“Longevity pay, an incremental increase in salary based on 

length of service, has been held to be a part of compensation.“) (emphasis added) (citation omitted); 

Tex. Att’y Gen. LO-97-010, at 4 (longevity pay of Texas Youth Commission teachers included 

within salary rate). Reading sections 41.253(a) and 41.255(b) together, the statute requires the 

county to pay each assistant prosecutor who has accrued sufficient service time $20 per month more 

for each year of service time; that $20 per month is over and above the assistant prosecutor’s present 

rate of compensation. Any crediting of some part of the prosecutor’s present compensation is in our 

view indistinguishable from the offsetting the statute by its terms forbids. 

Finally you ask whether “the first four years of a prosecutor’s service count in the calculation 

of longevity pay.” Request Letter, supra note 1, at 1. They do. The statute provides that “[tlhe 

monthly amount of longevity pay is $20 for each year of lifetime service credit.” TEX. GOV’T CODE 

ANN. 5 41.253(a). N o such phrase as “excluding the first four years” is to be found here, and this 
The Honorable Susan D. Reed - Page 3 (JC-0438) 

office has no power to supply such an emendation. “The courts will not read into a statute 

exceptions which are not embodied therein.” Stubbs v. Lowrey’s Heirs, 253 S.W.2d 312,313 (Tex. 

Civ. App.-Eastland 1952, writ ref d n.r.e.). Nor is it the case, as your letter suggests, that “[a] 

prosecutor can’t receive the supplement until after the fifth year,” by which we assume you mean 

after the accrual of five, rather than four full years. See Request Letter, supra note 1, at 2. The 

statutory directive is clear and unambiguous: “The increase is effective beginning with the month 

following the month in which the fourth year of lifetime service credit is accrued.” TEX. GOV’T 

CODE ANN. $41.253(b) (emphasis added). 
The Honorable Susan D. Reed - Page 4 (JC-0438) 

SUMMARY 

Subchapter D of chapter 41 of the Government Code, 

effective January 1, 2002, requires a county to pay a longevity 

supplement of $20 per month for each year of lifetime service credit 

to assistant prosecutors who have accrued four years of such credit, 

regardless ofwhether the legislature has appropriated sufficient funds 

to recompense the county for such payments. Such payments may 

not be offset against any other portion of an employee’s 

compensation. The first four years of service time are to be counted 

in the calculation of the longevity pay. 

T 

JOHN CORNYN 

Attorney General of Texas 

HOWARD G. BALDWIN, JR. 

First Assistant Attorney General 

NANCY FULLER 

Deputy Attorney General - General Counsel 

SUSAN D. GUSKY 

Chair, Opinion Committee 

James E. Tourtelott 

Assistant Attorney General, Opinion Committee