P 

May 13, 1987 

Mr. 3. F. Flack - 

Harris County Auditor 

800 County Administration Bldg. 

1001 Preston 

Houston, Texas 77002 

opinion No. JM-695 

Re: Compensation for criminal 

district judges while sitting 

as magistrates 

Dear Mr. 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 

presented as fklows: 

(1) The District Judges trying criminal cases 

in Elarris Cqunty 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 ccmpensation and/or benefits for that service, and if 

so.'would the state reduce the compensation to the 

District Judges under the authority of article 4 

of the Appropriation Bill? 

(2) Can the District Judges trying criminal 

cams be allowed additional compensation for performing judicial magistrate functions during nonscheduled district court hours seven days a week? 

Section 32.101 of the Government Code.states: 

(a) The Commissioners Court of Earris County 

shall budget for and pay the judges of the 

district courts having jurisdiction in that county 

an annual salary of not less than $12.000 nor more 

than $25,000 for judicial and administrative 

services. 

(b) The salary shall be paid in equal monthly 

installments from the county general fund or 

officers' salary fund. 

p. 3220 
Mr. J. F. Flack - Page 2 (JM-695) 

(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 for biennium; 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 is not suspended 

by this Act. (Emphasis added). 

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 to be paid a district 

judge at $54,500 per 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 of 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 Justices of the Courts of Appeals 

in whose district the District Court is located. 

Justices of the Courts of 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 in this Act for an 

Associate Justice of the Supreme Court and the 

Court of Criminal Appeals. In the case of Chief 

Justices of the Courts of Appeals, the differential 

shall be five hundred dollars ($500). 

In order that the differential set out above be 

maintained. each District Court Judge and Justice 

of the Courts of Appeals shall file a sworn 

p. 3221 
Hr. J. F. Flack - Page 3 (JM-695) 

statement with the Comptroller of Public Accounts 

setting forth the yearly amounts co be received 

from state and county as salary payments during the 

ensuing fiscal year. Amended statements shall be 

filed setting forth any change in the salary rate 

which occurs during a fiscal 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 

event a salary is in excess of the On 

Dollars ($1.000) di 

differential set out above is maintained. In the 

.e Thousand 

fferentiai. the Comptroller is 

directed to reduce the state's portion of that 

salary by the amount of excess, except in the case 

of the Chief Justictis in thl hCourts 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 

salaries which violate these provisions. (Emphasis 

added). 

Since Harris County judges are currently receiving a combined 

salary from the state and county which is $1.000.00 less than that of 

the appellate court justices, it is our opinion that Harris County may 

not pay the district judges any additional salary or compensation for 

sitting as magistrates during weekends, holidays and nonscheduled 

district court hours that would not result in a corresponding reduction in the state's' portion of the salary. In the event that the 

judges' salaries rise above the $1.000.00 differential, we are of the 

~opinion that the comptroller is required to reduce the state's portion 

of the salaries by the amount of the excess. 

You call our attention to section 32.303 of the Government Code, 

which authorizes: 

The commissioners courts of Bexar. Dallas, 

Harris, and Tarrant coupties may 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 

performing official duties. 

We are of the opinion that you are correct in concluding the 

automobile allowance would not be considered supplemental salary paid 

p. 3222 
Mr. J. F. Flack - Page 4 (JM-695) 

by Harris County, but would be an amount for an expense incurred in 

performing official duties. 

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 

appropriations act (Acts 1985, 69th Leg., ch. 980, 

art. IV, at budget 442) that would not result in a 

corresponding reduction in the state's portion of 

-the salary. In the event the salary or compeneation rises above the $l,OOO.OO differential, it is 

the duty of the comptroller, under the biennial 

appropriations act. to reduce the state's portion 

of that salary or compensation by the amouut of 

the excess. 

g---h 

MATTOX 

Attorney General of Texas 

JACKHTGHTOWHH 

First Assistant Attorney General 

MARY XELLER 

Executive Assistant Attorney General 

JUDGE ZOLLIE STEANLEY 

Special Assistant Attorney General 

RICX GILPIN 

Chairman, Opiaiou Committee 

Prepared by Tom G. Davis 

Assistant Attorney General 

p. 3223