        OFFICE OF THE ATTORNEY    GENERAL.   STATE OF TEXAS

        JOHN CORNYN
-




                                                     December 16, 1999



    The Honorable Edwin E. Powell, Jr.                        Opinion No. JC-0158
    Coryell County Attorney
    P.O. Box 796                                              Re:     Allocation by county of fees and costs
    Gatesville, Texas 76528                                   collected pursuant to section 51.702 of the
                                                              Government Code (RQ-0094)


    Dear Mr. Powell:

             You ask us to advise Coryell County on how to comply with sections 25.0005 and 25.0016
    of the Government Code. Both provisions are part of a statutory scheme for raising the salaries of
    county-court-at-law judges through the collection of fees and costs from civil litigants and convicted
    criminal defendants pursuant to section 5 1.702 of the Government Code. Both provisions also
    prescribe how revenues Tom the fees must be spent. Your letter suggests that the spending
    requirements conflict irreconcilably. However, we conclude that sections 25.0005 and 25.0016 do
    not conflict and that a county may comply with both provisions in accordance with their terms.

            Section 25.0005, subsection (a), ofthe Government Code sets out a formula for determining
    the minimum salaries of statutory county court judges in counties that opt to collect fees and costs
    under section 5 1.702. See TEX. GoV’T CODE ANN. 5 25.0005(a) (Vernon Supp. 2000). Generally,
    the formula ties the salaries of statutory county court judges to the salaries of district judges in the
    county. Id. A county is not required to use the salary formula set out in subsection (a) if the county
    commissioners court raises the judge’s salary within a certain period of time and complies with
    several other requirements:

                        (e) A county is not required to meet the salary requirements           of
                     Subsection (a) for a particular court if:

                              (1) not later than September 1 of the year in which the county
                     initially begins collecting fees and costs under Section 5 1.702, the
                     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 1 of the year the county initially begins
                     collecting fees and costs under Section 5 1.702;

                                 (2) the county pays at least the salary required by Subdivision
                     (1);
The Honorable   Edwin E. Powell, Jr. - Page 2             (X-0158)




                        (3) the county collects the fees and costs as provided         by
                Section 5 1.702;

                        (4) the court has at least the jurisdiction   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.

Id. Thus, a county is excepted from the salary formula of subsection           (a) if it complies with the
requirements of subsection (e).

         Subsection (e) requires, among other things, that the county use for judges’ salaries at least
fifty percent of the amount received from the state pursuant to section 25.0016 of the Government
Code. Id. Section 25.0016 of the Government Code deals with the redistribution by the state to
counties of fees and costs collected under section 51.702. Fees and costs collected by a county
pursuant to section 5 1.702 are sent to the state Comptroller and deposited in the state judicial fund.
TEX. GOV’T CODE ANN. 5 51.702(d) (Vernon 1998). The Comptroller collects the fees and costs
from all the counties, then disburses the funds back to the counties. For each judge participating in
the scheme, and who is not otherwise excluded, the Comptroller sends $35,000 to the county. Id.
3 25.0015(a) (Vernon Supp. 2000). If the total fees and costs collected from all of the counties in
the state exceeds the total amount distributed to all ofthe counties (in $35,00Operjudge increments),
then the excess is distributed to each county in proportion to the amount of fees and costs received
from the county. Id. 5 25.0016 (Vernon Supp. 2000). In other words, ifthe state has an excess of
fee and cost receipts after all of the $35,000 disbursements are made to the counties, then the
counties get a proportion of the excess on top of the $35,000 payments they have already received.

         Section 25.0016 of the Government Code provides that the excess receipts distributed to a
county must be paid to the county’s general fund “to be used only for court-related purposes for the
supportofthejudiciaryasprovided       by Section 21.006 [ofthe Government Code].” Id. 4 25.0016(b).
At the same time, section 25.0005 provides that a county may use the salary formula of subsection
(e) if, among other things, “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.” Id.
5 25,0005(e). You ask whether a county must comply with section 25.0005(e), that is, use at least
fifty percent of the excess for judges’ salaries, in light ofthe requirement of section 25.0016 that the
excess be used only for court-related purposes for the support of the judiciary. We conclude that
“salaries for the statutory county court judges, ” id. 5 25.0005(e), are a subset of “court-related
purposes for the support of the judiciary as provided by Section 21.006 [of the Government Code],”
id. 5 25.0016(b). Thus, a county that opts to use the salary formula of section 25.0005(e) can
comply with both section 25.0005(e) and section 25.0016.
The Honorable   Edwin E. Powell, Jr. - Page 3          (X-0158)




         Section 25.0016 of the Government Code requires the excess fees distributed to a county to
be paid to the county’s general fund to be used for court-related purposes for the support of the
judiciary “as provided by section 21.006 [of the Government Code].” Id. 5 25.0016(b). Section
 2 1.006 creates a judicial fund as a separate fund in the state treasury to be administered by the
 Comptroller.    See id. 5 21.006 (Vernon 1988). “The fund shall be used only for court-related
purposes for the support ofthe judicial branch of this state.” Id. The statute does not define “court-
 related purposes for the support of the judicial branch,” but we think such purposes include salaries
 and other expenses related to the operation of the courts.

         The law’s restriction on the use of the judicial fund to court-related purposes reflects, we
believe, the principle that fees charged to litigants may be used only for the support of the judiciary.
Court fees used for general purposes of government violate the constitutional promise that the courts
of the state shall be open. See TEX. CONST.art. I, 5 13. Court fees that are used for general purposes
are characterized as taxes, and a tax imposed on a litigant interferes with access to the courts in
violation ofthe constitution. See LeCroy v. Hanlon, 713 S.W.2d 335, 341-43 (Tex. 1996); Dallas
County v. Sweitzer, 881 S.W.2d 757, 765-66 (Tex. App.-Dallas 1994, writ denied). The Texas
Supreme Court has cited with approval a case upholding a court fee that was used for maintaining
a county law library. See LeCroy, 713 S.W.2d at 342 (citing Farabee v. Board of Trustees, 254
So.2d 1,5 (Fla. 1971)). Thus, we believe that “court-related purposes” under section 21.006 of the
Government Code include not only judges’ salaries, but any other costs necessary to support the
operation and maintenance of the courts and the administration of justice.

         In sum, section 25.0016 of the Government Code requires excess fees and costs collected
under section 5 1.702 and distributed to counties to be used for court-related purposes. If a county
wishes to use the salary formula of section 25.0005(e) of the Government Code, the county must use
at least fifty percent of the excess distribution for judges’ salaries. Since judges’ salaries are a court-
related purpose, a county can comply with both section 25.0016 and section 25.0005(e).

          We note that section 25.0016 of the Government Code requires the excess fees and costs
distribution to be deposited in a county’s general fund as opposed to a county’s salary fund. We do
not think this provision means that the funds may not be used for salaries in accordance with section
25,0005(e).    A county may establish a salary fund separate from its general fund, but it is not
required by state law to do so. See TEX. LOC. GOV’T CODE ANN. $ 154.007 (Vernon 1999). If a
county does have a salary fund, it may transfer funds from its general l&d to its salary fund. See
id. 5 113.004(d). Thus, although the excess fees and costs distribution must be deposited in a
county’s general fund pursuant to section 25.0016, at least fifty percent of the funds, wherever they
are deposited, must be used for judges’ salaries if a county intends to compensate judges under
section 25.0005(e).
The Honorable Edwin E. Powell, Jr. - Page 4          (X-0158)




                                       SUMMARY

                        Judges’ salaries are a court-related purpose for the support of
              the judiciary for which funds collected pursuant to section 5 1.702 of
              the Government Code and distributed to a county by the state in
              accordance with section 25.0016 of the Government Code may be
              used. A county that wishes to compensate a statutory county court
              judge using the salary formula set out in section 25.0005(e) of the
               Government      Code must use at least fifty percent of the funds
               distributed   to the county pursuant to section 25.0016 of the
               Government Code for statutory county court judges’ salaries.




                                              Attorney General of Texas



ANDY TAYLOR
First Assistant Attorney General

CLARK RENT ERVIN
Deputy Attorney General - General Counsel

ELIZABETH ROBINSON
Chair, Opinion Committee

Barbara Griffin
Assistant Attorney General - Opinion Committee
