OFFICE OF THE ATTORNEY GENERAL

. STATE OF TEXAS

JOHN CORNYN

August 14,2002

The Honorable Clyde Herrington Angelina County District Attorney P.O. Box 908 Lufkin, Texas 75902-0908 Opinion No. JC-0543
Re: Whether a county that collects fees and costs under section 51.702 of the Government Code must, under section 25.0005 of the same code, “set” anincreased salary for statutory county court judges, and related questions (RQ-05 13-JC)

Dear Mr. Herrington:
You ask whether Angelina County (the “County”) complied with the statutory county court judge’s salary scheme that sections 25.0005 and 51.702 of the Government Code establish.’ See TEX. GOV’T CODEANN. $9 25.0005, 51.702 (Vernon Supp. 2002). We paraphrase your three questions:
1. Whether the County set its statutory county court judges’

salaries consistently with section 25.0005 of the Government Code in 1997 and 1998.
2. Whether the County, which began collecting fees under section 51.702 of the Government Code in November 1996, should have met the statutory salary requirements of section 25.0005 as of September I, 1996, rather than in 1997.
3. If the County failed to comply with section 25.0005(e), whether it must pay its judges for the years 1997 and 1998 in accordance with section 25.0005(a).
See Request Letter, supra note 1. Based on the facts asyou state them, we conclude that the County did not comply with section 25.0005(a) in 1997 or 1998 because it did not “set” thejudges’ salaries at the proper level. Nor did the County comply with section 25.0005(e) because it did not increase the judges’ salaries in the amount that subsection (e) requires. Failing to comply with subsection (e), the County should have complied with section 25.0005(a), but, again, itdid not. Because section

‘See Letter from Honorable Clyde Herrington, Angelina County District Attorney, to Honorable John Comyn, Texas Attorney General (Feb. 15,2002) (on 1 f 1 e with Opinion Committee) [hereinafter Request Letter].The Honorable Clyde Herrington - Page 2 (JC-0543)

25.0005(a) does not specify adate by which aparticipating county must increase itsjudges’ salaries, the County need not have increased the judges’ salaries by September 1, 1996. Finally, given the County’s failure to comply with section 25.0005(e) in 1997 and 1998, we conclude that the County must pay itsjudges the difference between the amounts they were due for those years under section 25.0005(a) and the compensation they actually received. Although we believe that the amount each judge received under section 25.0016 of the Government Code should be subtracted from any additional monies owed under section 25.0005(a), we do not determine what amounts may be due the judges.
The County has two statutory county court-at-law judges. See TEX. GOV’T CODE ANN. 025.0051 (Vernon Supp. 2002) (providing for Angelina County statutory county courts). During “late 1996,” you explain, the County decided to participate in the program established under sections 25.0005,25.0015,25.0016, and 51.702 of the Government Code, which provide ameans by which
aparticipating county may increase statutory county court judges’ salaries in lieu ofpermitting the judges to practice law privately. See id. $3 25.0005,25.0015,25.0016,5 1.702; see Request Letter, supra note 1, at 1. “The 1996 budgeted salary ofeach County Court atLaw Judge was” $57,939.75. Id. In 1997 and 1998 each judge was “budgeted to receive” $59,939, id., an increase of approximately $2,000. We understand that when the County received its share of the excess monies distributed at the end of the state’s fiscal year under section 25.0016 of the Government Code, each judge received half of the money (in addition to the budgeted amount each judge received). See id. at 2. Thus, in 1997, each judge received $22,107.62 “in addition to [a]budgeted salary of’ $59,939 “for atotal salary,” you say, of $82,046.62. Id. In 1998, you continue, eachjudge received $26,939 in addition to the budgeted salary, “for a total salary of’ $86,878. Id. The County also “paid the retirement match on the excess funds [that] were divided between the twojudges out ofcounty funds independent of the funds” the county received under section 25.0016. Id. Because you believe the two judges “ultimately received more” than the amounts required under section 25.0005(e), you contend that the County should not now “be required to pay additional money to the judges as outlined in section 25.0005(a) for either or both 1997 and 1998.” Id.
To participate in the salary-supplement program under sections 25.0005,25.0015,25.0016, and 51.702 of the Government Code, a commissioners court authorizes the statutory county court clerk to collect special filing fees and court costs under section 51.702: “a $40 filing fee in each civil
case in the statutory county court and a court cost of $15 from” certain persons who are convicted of criminal offenses in a statutory county court. Tex. Att’y Gen. Op. No. JC-0305 (2000) at 2; see TEX.GOV’TCODE

ANN.851.702(a), (b) (Vemon Supp. 2002). Section 51.702(f) generally requires
a commissioners court to inform the comptroller that it will participate in the program by June 1of the initial year and the statutory county court clerk to begin collecting the fees and costs on July 1. See TEX.GOV’T CODE ANN. 0 51.702(f) (Vernon Supp. 2002); Tex. Att’y Gen. Op. No. JC-0305 (2000) at 2. Then, under section 25.0015 of the Government Code, the state compensates a participating county “in an amount equal to $35,000 for each statutory county court judge in the county” in monthly installment payments beginning on September 1 of that year. TEX. GOV’T CODE ANN. 8 25.0015(a) (Vernon Supp. 2002). Nevertheless, a county “that is not eligible to participate under [section 51.702(f)] but” that becomes eligible “later in the year may submit aThe Honorable Clyde Herrington - Page 3 (JC-0543)

resolution.

. .to the comptroller,” who determines “the date the county may begin to collect fees and costs under this section.” Id. 0 51.702(i). “A county that begins to collect fees and costs under this section after July 1is not eligible for apayment” from the state “until the 60th day after the date the comptroller determines the county may begin to collect fees and costs under this section.” Id.
In addition to the $35,000 per year that the state compensates aparticipating county for each statutory county court judge in that county, see id. 025.0015, at the end of the state’s fiscal year the comptroller divides among participating counties excess collections, see id. 825.0016(a). “At the end of each state fiscal year the comptroller shall determine the amounts [collected] under [slection 51.702 and the amounts paid to the counties under [slection 25.0015.” Id. If the total amount the counties paid to the state under section 51.702 “exceeds the total amount” the state paid to the participating counties under section 25.0015, “the state shall remit the excess to the counties” in proportion to the percentage of the total each county paid. Id. The amount the state remits to a county is paid “to the county’s general fund to be used only for court-related purposes for the support of the judiciary.” Id. 8 25.0016(b). The salaries of statutory county court judges “are a subset of

‘court-related purposes for the support of thejudiciary.“’ Tex. Att’y Gen. Op. No. JC-0158 (1999) at 2 (quoting TEX.GOV’TCODE AN-N. 025.0016(b)).
Section 25.0005 requires a county that collects fees and costs under section 51.702 to increase a statutory county court judge’s salary if the judge does not practice law privately:

(a) A statutory county court judge, other than a statutory county court judge who engages in the private practice of law or ajudge in whose court fees and costs under Section 51.702 are not collected, shall be paid a total annual salary set by the commissioners court at an amount that is at least equal to the amount that is $1,000 less than the total annual salary received by a district judge in the county on August 31’1999. A district judge’s or statutory county court judge’s total annual salary includes contributions and supplements, paid by the state or a county, other than contributions received as compensation under Section 74.05 1.

(c) The salary shall be paid in equal monthly installments.

(e) A county is not required to meet the salary requirements of Subsection (a) for aparticular court if: (1) not later than September 1ofthe year in which the county initially begins collecting fees and costs under Section 51.702, theThe Honorable Clyde Herrington - Page 4 (JC-0543)

county increases the salary of each statutory county court judge in the county to an amount that is at least $28,000 more than the salary the judge was entitled to on May 1ofthe year the county initially begins collecting fees and costs under Section 51.702; (2) the county pays at least the salary required by Subdivision (1) . 7 (3) the county collects the fees and costs as provided by Section 51.702; (4) the court has at least thejurisdiction provided by Section 25.0003; and (5) except as provided by Subsection (f), the county uses at least 50 percent of the amount the county receives each state fiscal year under Section 25.0016 for salaries for the statutory county court judges. (f) Subsection (e)(5) does not require acounty to pay asalary that exceeds the minimum salary under Subsection (a).
Id. 8 25.0005 (Vernon Supp. 2002); see Tex. Att’y Gen. LO-95-074, at 4 (defining term “salary” generally as compensation for services rendered).
Over the course of the time period that is the subject ofthis request, the legislature amended both subsections (a) and (e) of section 25.0005, changing the amount that aparticipating county must pay a statutory county court judge, and this may affect the amount thejudges should have received. Compare TEX.GOV’TCODE ANN. 8 25.0005 (Vernon Supp. 2002) with Act of June 1,1997,75th Leg., R.S., ch. 1119, $0 1, 5(b), 1997 Tex. Gen. Laws 4262, 4263. Prior to January 1, 1998, subsection (a) required a county to set a county judge’s salary in an amount that is “$1,000 less than the total annual salary” adistrict judge receives. Act ofJune 1,1997,75th Leg., R.S., ch. 1119, $9 1, 5(b), 1997 Tex. Gen. Laws 4262, 4263. Between January 1, 1998, and October 1, 1999, subsection (a) required a county to pay a statutory county court judge a salary at least $4,000 less than district judges’ salaries. See id. Subsection (a) reverted to requiring a salary that is at least $1,000 less than a district judge’s salary effective October 1, 1999. See Act of May 30, 1999,76th Leg., RX, ch. 1572, $0 1, 11, 1999 Tex. Gen. Laws 5404, 5404. The legislature also amended subsection (e) over the course of the relevant time period. Prior to October 1, 1999, subsection (e) required a county to pay a county judge “$20,000 more than the salary the judge was entitled to on May 1”ofthat year. Act of June 1,1997,75th Leg., R.S., ch. 1119,§ 1,sec. 25.0005(e)(l)(A), 1997 Tex. Gen. Laws 4262,4263. Subsection (e)( 1)now requires a county to pay a salary that is at least $28,000 “more than the salary the judge was entitled to on May 1 of the year the county” began collecting fees and costs under section 51.702 of the Government Code. TEX.GOV’TCODE ANN.§The Honorable Clyde Herrington - Page 5 (JC-0543)

25.0005(e)( 1) (Vemon Supp. 2002); see also Act ofMay 31’1999’76th Leg., R.S., ch. 1572, $3 1, 11, 1999 Tex. Gen. Laws 5404,5405 (amending section 25.OOOS).

To answer your first question, we conclude that the County did not pay statutory county court-at-law judges’ salaries consistently with section 25.0005(a) or (e). Although the County has participated and collected fees and costs under section 51.702 since November 1996, it has neither “set” statutory county court-at-law judges’ salaries as section 25.0005(a) requires, nor has it increased and paid the salary as section 25.0005(e) requires. First, the County did not comply with subsection (a), which requires a county to pay its judges “a total annual salary set by the commissioners court.” TEX.GOV’TCODE ANN.825.0005(a) (Vernon Supp. 2002) (emphasis added). We presume that the County, which has apopulation of 80,130, see http://Quickfacts.census.~ov/qf~states/48/48005.html, adopts its budget, and hence sets the judges’ annual salaries, in accordance with chapter 111, subchapter A of the Local Government Code. See TEX.LOC.GOV’T CODE ANN. 8 111.OOl (Vernon 1999) (providing that subchapter A applies only to county with population of 225,000 or less); see also Tex. Att’y Gen. Op. No. JC-0159 (1999) at 4 (stating that commissioners court sets county court-at-law judge’s salary annually for succeeding fiscal year). In addition, acommissioners court must “set” an elected county officer’s “salary, expenses, and other allowances

. . . at a regular meeting

. . . during the budget hearing and adoption proceedings.” TEX.Lot. GOV’TCODE ANN. 3 152.013(a) (Vernon 1999); see also TEX.GOV’TCODE ANN.0311.Ol 1 (Vernon 1998) (requiring statutory interpreter to
. read words “in context” and consistently with “rules of grammar and common usage”); XV OXFORD ENGLISH

DICTIONARY

54,56 sense III, 57, senses 2 1a & 22 (2d ed. 1987) (defining “set” as recording fact in writing). Thus, a county must, during a regular meeting conducted as part of the budget hearings and adoption proceedings, fix, in its budget, county court-at-law judges’ salaries in an amount that complies with subsection (a) and that does not depend upon the amount the county receives atthe end of the state’s fiscal year under section 25.0016 ofthe Government Code. Further, the County did not pay the judges’ salaries in “equal monthly installments,” as section 25.0005(c) requires. See TEX.GOV’TCODE ANN.825.0005(c) (Vernon Supp. 2002). Second, the County did not comply with subsection (e), which in 1996 through October 1’1999, required a commissioners court to increase a statutory county court judge’s salary “to an amount that is at least

. . . $20,000 more than the salary the judge was entitled to on May 1 of [the] year” that the county initially began collecting fees and costs under section 5’1.702. Act of June 1,1997,75th Leg., R.S., ch. 1119, sec. 25“.“0005(e), 1997 Tex. Gen. Laws 4262,4263. You report that the County increased the judges’ salaries in 1997 and 1998 approximately two thousand dollars, see Request Letter, supra note 1, at 1,but that amount is insufficient under subsection (e). Moreover, again, the County did not pay the judges’ salaries “in equal monthly installments,” as section 25.0005(c) requires. TEX.GOV’TCODE ANN.825.0005(c) (Vernon Supp. 2002). Subsection (c) applies to salary received under subsection (e) as well as to salary received under subsection (a). As we stated in Attorney General Opinion JC-0159, “a county’s compliance with” section 25.0005(e) is “determined according to the actions it takes during each year in which it attempts to set the judges’ salaries under that provision.” Tex. Att’y Gen. Op. No. JC-0159 (1999) at 4. AThe Honorable Clyde Herrington - Page 6 (JC-0543)

county “may not bring a salary within that section by disbursing section 25.0016 funds after [its] fiscal year” has ended. Id. A county may disburse section 25.0016 funds in a subsequent fiscal year, but we do not understand that this was done here. Having determined that the County complied with neither subsection (a) nor subsection (e),
we conclude that the County was required to comply with subsection (a). A county that opts to participate in the program established under section 51.702 of the Government Code must pay its statutory county court judges the minimum salary section 25.0005(a) requires, unless the county complies “with the salary

. . . setting provision found in subsection 25.0005(e).” Tex. Att’y Gen. Op. No. JC-0159 (1999) at 2. Conversely, a participating county that does not comply with one or more of subsection (e)‘s requirements must comply with subsection (a). See id. at 3.
We consequently consider whether, under section 25.0005(a), the County should have increased the judges’ salaries effective September 1, 1996, although the County did not begin collecting fees and costs under section 51.702 until November ofthat year. Typically, acounty that resolves to collect fees and costs under section 51.702 begins collecting on July 1. See TEX.GOV’T CODEANN. 8 51.702(f) (Vernon Supp. 2002). The participating county then receives its first installment payment from the state the following September, approximately sixty days after instituting the collection. Here, however, the County began collecting fees and costs under section 51.702 in November 1996 and received its first installment payment from the state under section 25.0015 in January 1997. See Request Letter, supra note 1,at 2. You consequently believe that the county need not have increased thejudges’ salaries “by September 1’1996.” Id. Thejudges counter that the county should have increased their salaries by September 1,1996, consistently with section 25.0005(e). See id?
We conclude that section 25.0005(a) did not require the County to increase the judges’ salaries by September 1’1996. The County, by failing to comply with subsection (e), was required to comply with subsection (a). See discussion supra pp. l-2. Subsection (a) does not facially require that the judges’ salaries have been increased by September 1of the year a county begins collecting fees and costs. See TEX.GOV’TCODE ANN.825.0005(a) (Vernon Supp. 2002). Section 25.0005(e), by contrast, plainly requires a participating county to increase each statutory county court judge’s salary “not later than September 1ofthe year inwhich the county initially begins collecting” the fees and costs. Id. 925.0005(e)( 1); see also Tex. Att’y Gen. Op. No. JC-0157 (1999) at 3 (defining term “initially” to mean first year that county “began collecting fees and costs under section 51.702”).
You ask finally whether the County’s judges are entitled to penalties under section 25.0005(a) because the County failed to budget the proper amounts under subsection (e). See Request Letter, supra note 1, at 3. You believe that, because the County paid the judges “the appropriate portion of the excess payment” the county received under section 25.0016, “it has substantially complied with the statute and should not be penalized.” Id. Because no statute imposes

2See also Letter from Joseph E. Martin, III, Attorney at Law, to Susan Denmon Gusky, Chair, Opinion Committee, Texas Attorney General (Apr. 22,2002) (on file with Opinion Committee).The Honorable Clyde Herrington - Page 7 (JC-0543)

a“penalty” upon acounty that fails topay the requisite amount, we consider whether, presuming that the County failed to increase the judges’ salaries as section 25.0005(e) required, the County must now pay the difference between the salaries the County set and the salaries to which thejudges were entitled under section 25.0005(a). We have already determined that the County was required to comply with subsection (a).
Each county judge should receive from the County the difference between the amount he or she received and the amount the judge should have received under subsection (a). In a similar fact situation, this office concluded in 1999 that acounty that did not comply with “at least one provision of [Isection 25.0005(e)” in fiscal years 1997 and 1998 was governed by section 25.0005(a). Tex. Att’y Gen. Op. No. JC-0159 (1999) at 3-4. Further, subsection (a) provides the minimum salary a statutory county court judge in aparticipating county may receive. See TEX.GOV’TCODE ANN.8 25.0005(f) (Vernon Supp. 2002). Section 25.0005(a) bases the amount aparticipating county must pay a statutory county court judge upon the amount adistrict judge receives as salary from the state. See id. 8 25.0005(a). A fact finder thus will need to consider the amounts that a state district judge received in the appropriate year. For your guidance, we summarize this information in a table: 

# I District judge’s salary in state FY ending 8/3l/96 I $85,2173 I 

# I...ending 8131

I97 I $85,2174 I 

# I... ending 8/3 1

I98 I $92,217’ I 

# I...ending 8131

I99 I $92,2176 I (We have included the state fiscal years ending in 1996 and 1999 because of the disparity between the dates of the state’s fiscal year and the County’s.).

In calculating any additional monies owed thejudges under section 25.0005(a), the amount each judge received under section 25.0016 of the Government Code should be included in determining the amount each judge was paid in the fiscal years at issue. Put another way, the amount eachjudge received under section 25.OO 16should be subtracted from the difference between the total amount each judge actually received and the amount he or she should have received under section 25.0005(a). Under section 25.0005(a), ajudge is entitled to aminimum “total annual salary,”

3SeeGeneral Appropriations Act, 74th Leg., R.S., ch. 1063, art. IV, 1995 Tex. Gen. Laws 5242,5736 (Judiciary Section, Comptroller’s Department).

4See id.; accord Tex. Att’y Gen. Op. No. JC-0159 (1999) at 4.

‘SeeGeneral Appropriations Act, 75thLeg., R.S., ch. 1452, art. IV, 1997 Tex. Gen. Laws 5535,6017 (Judiciary Section, Comptroller’s Department); accord Tex. Att’y Gen. Op. No. JC-0159 (1999) at 4.

6SeeGeneralAppropriationsAct, 75thLeg., R.S., ch. 1452, art. IV, 1997 Tex. Gen. Laws 5535,6016 (Judiciary Section, Comptroller’s Department).The Honorable Clyde Herrington - Page 8 (JC-0543)

which includes “contributions and supplements, paid by the state or a county, other than contributions received as compensation under [slection 74.05 1.” TEX. GOV’T CODEANN. 8 250005(a) (Vernon Supp. 2002). Thus, aside from compensation under section 74.051, all state and county contributions and supplements paid to ajudge are included in “total annual salary” under section 25,0005(a). Calculating aspecific amount due eachjudge depends upon the resolution of fact issues and is beyond the scope of this opinion. See, e.g., Tex. Att’y Gen. Op. Nos. JC-0032 (1999) at 4 (stating that question of fact isbeyond purview ofthis office); JC-0027 (1999) at 3 (stating questions of fact cannot be addressed in attorney general opinion); JC-0020 (1999) at 2 (stating that investigation and resolution of fact questions cannot be done in opinion process).The Honorable Clyde Herrington - Page 9 (JC-0543)

SUMMARY Assuming that the requestor’s statement of facts is true, Angelina County, which began collecting fees and costs under section 51.702 of the Government Code in November 1996, did not “set” increased salaries for its statutory county court judges as required under section 25.0005(a) or (e) of the same code in 1997 or 1998. See TEX. GOV’T CODE AN-N.§§ 25.0005(a), (e), 51.702(i) (Vernon Supp. 2002). Under section 25.0005(a), Angelina County need not have increased thejudges’ salaries beginning September 1ofthe year itbegan collecting the fees and costs. To the extent Angelina County did not pay its judges the amount they were due under section 25.0005(a), eachjudge should receive from the County the difference between the total amount he or she received and the amount thejudge should have received under that subsection.

Attorney General of Texas

HOWARD G. BALDWIN, JR. First Assistant Attorney General
NANCY FULLER Deputy Attorney General - General Counsel
SUSAN DENMON GUSKY Chair, Opinion Committee Kymberly K. Oltrogge Assistant Attorney General, Opinion Committee