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                                 May 13, 1987




    Mr. 3. F. Flack    -                     opinion No. JM-695
    Harris County Auditor
    800 County Administration Bldg.          Re: Compensation for criminal
    1001 Preston                             district judges while sitting
    Houston, Texas 77002                     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 magis-
               trates, 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 ccm-
               pensation 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 per-
               forming judicial magistrate functions during non-
               scheduled 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.




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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 'compeusa-
             tion of a State official or employee, the law
             specifying or regulating the salary or compensa-
             tion 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




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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
          differential set out above is maintained. In the
          event a salary is in excess of the On.e Thousand
          Dollars ($1.000) differentiai. 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 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
            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 reduc-
tion 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 auto-
            mobile allowance in an amount set by the commis-
            sioners 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




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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 sit-
          ting 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 compenea-
          tion 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




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