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May 13, 1987

Mr. 3. F. Flack - Harris CountyAuditor 800 CountyAdministrationBldg. 1001Preston Houston,Texas 77002 opinionNo. JM-695
Re: Compensationfor criminal district judges while sitting as magistrates
DearMr. Flack:
We are in receipt of a copy of a letter from the Harris County Attorney in which he declines to answer your questions. See Govt. Code 541.007. We accept your request for an opinion on thrissues presentedas fklows:

(1) The District Judges trying criminal cases in ElarrisCqunty are currently sitting as magistrates, on a rotating basis, during all weekends an&holidays. Those judges are not receiving any additional compensation for that service. Can Harris County pay those judges additional ccmpensationand/orbenefits for that service,and if so.'would the statereduce the compensationto the District Judges under the authority of article 4 of theAppropriationBill? (2) Can the District Judges trying criminal cams be allowed additional compensation for performing judicialmagistrate functions during nonscheduleddistrict courthours sevendays aweek? Section 32.101 of theGovernmentCode.states:

(a) The Commissioners Court of Earris County shall budget for and pay the judges of the district courtshaving jurisdiction in that county an annual salaryof not less than $12.000normore than $25,000 for judicial and administrative services. (b) The salary shall be paid in equalmonthly installments from the county general fund or officers' salary fund.

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(c) The salary is in addition to the salary paid by the state. Section 1 of article 6813b,V.T.C.S., "Salaries of state officers and empioyees forbiennium; exceptions,"provides:

All salaries of all State officers and State employees, including the salaries paid any -individual out of the General Revenue Fund, shall be in such sums or amounts as may be provided for by the Legislature in the biennial Appropriations Act. It is further provided that in instances vhars the biennial Approprxations Act does not specify or regulate the. salaries or 'compeusation of a State official or employee, the law specifying or regulating the salary or compensation of such official or employee isnot suspended by thisAct. (Emphasisadded). The biennial appropriations act for the period beginning September 1, 1985 and,ending August 31, 1987 (Acts 1985, 69th Leg., ch. 980, art. IV, at budget 437) sets the salary tobe paid a district judge at $54,500per year.
In your letter you state that "Barris County District Judges currently receive $1.000.00 less annually than the appellate court justices." The General Appropriations Act (Acts 1985. 69th Leg., ch. 980. art. IV, at budget 442) contains the following:

Sec. 2. Salary Differential for District Court Judges and Justices of Courts ofAppeals. 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 Justices of the Courts of Appeals inwhose district the District Court is located. Justices of the Courts of Appeals may receive a combined yearly salary rate from state and county sourceswhich is One ThousandDollars ($1,000)less than theyearly salary provided in thisAct for an Associate Justice of the Supreme Court and the Court of Criminal Appeals. In the case of Chief Justices of theCourts of Appeals, thedifferential shallbe fivehundred dollars ($500).
In order that the differential set out abovebe maintained. each District Court Judge and Justice of the Courts of Appeals shall file a sworn

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statement with the Comptroller of Public Accounts setting forth the yearly amounts co be received from state and county as salarypaymentsduring the ensuing fiscal year. Amended statements shall be filed setting forth any change in the salary rate which occursduring a fiscalyear. For thepurpose of salarypaymentsby the state; the Comptroller of Public Accounts shall determine from the filed statements that the required salary
event a salary is in excess of the On Dollars ($1.000) di differential set out above is maintained. In the .eThousand fferentiai. the Comptroller is directed to reduce the state's portion of that salaryby the amount of excess, except in the case of the Chief Justictisin thl h Courts of Appeals where the differential shall be Five Hundred

, Dollars ($500). The appropriations for salaries of District Court Judges and Justices of courts of Appeals are made contingent upon strict compliance with the provisions of this section and the Comptroller shall have-no authority to issue a warrant for salarieswhichviolate theseprovisions. (Emphasis added). Since Harris County judges are currently receiving a combined salary from the state and countywhich is $1.000.00 less than that of the appellatecourt justices, it is our opinion thatHarris Countymay not pay the district judges any additional salary or compensation for sitting as magistrates during weekends, holidays and nonscheduled district court hours thatwould not result in a correspondingreduction in the state's'portion of the salary. In the event that the judges' salariesrise above the $1.000.00differential,we are of the ~opinionthat the comptrolleris required to reduce the state'sportion of the salariesby the amountof the excess. You call our attention to section 32.303 of the Government Code, which authorizes:

The commissioners courts of Bexar. Dallas, Harris, andTarrant couptiesmay pay the judges of the district courts in their counties an automobile allowance in an amount set by the commissioners court for automobile expenses incurred in performingofficialduties.
We are of the opinion that you are correct in concluding the automobile allowancewould not be considered supplemental salarypaid

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by Harris County, but would be an amount for an expense incurred in performing officialduties.
SUMMARY

Since the District Judges of Harris County are currently receiving a combined yearly salary (from the state and the county) which is only $1.000.00 less than the combined yearly salary received by the Justices of the Courts of Appeals (in whose district the district courts are located). Harris County may not pay the district judges additional compensation or salary for sitting as magistrates during weekends, holidays and nonscheduled district court hours under the appropriationsact (Acts 1985, 69thLeg., ch. 980, art. IV, at budget 442) thatwould not result in a corresponding reduction in the state's portion of -thesalary. In the event the salary or compeneation rises above the $l,OOO.OOdifferential, it is the duty of the comptroller, under the biennial appropriations act. to reduce the state'sportion of that salary or compensation by the amouut of the excess. 

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MATTOX AttorneyGeneral ofTexas
JACKHTGHTOWHH First AssistantAttorneyGeneral
MARY XELLER ExecutiveAssistantAttorney General
JUDGE ZOLLIE STEANLEY SpecialAssistant **Attorney** General
RICX GILPIN Chairman,Opiaiou Committee Preparedby Tom G. Davis Assistant Attorney General

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