                      The Attorney               General of Texas
                                         March    18,   1980

(ARK WHITE
,norney General


                  Honorable Joe Resweber                       Opinion No. ~~-156
                  Harris County Attorney
                  1001 Preston, Suite 634                      Re: Compensation      of judges of
                  Houston, Texas 77002                         county courts at law and county
                                                               criminal courts at law.

                  Dear Mr. Resweber:

                        You have requested our opinion regarding the compensation of certain
                  judges in Harris County. Specifically you ask whether, pursuant to article
                  3883i-2,. V.T.C.S., when the total annual salary and supplements of district
                  judges in Harris County is set at $54,587, the Harris County Commissioners
                  Court may fix the salary of each of the judges of the county &urts at law
                  and the county criminal courts at law at $53,482 pet annum.

                        Section 1 of article   3883i-2, V.T.C.S., applies to Harris County, and
                  reads in pertinent part:

                              . . . the Commissioners Court shall fii the salary of
                              each of the Judges of the County Courts at Law and
                              Judges of the County Criminal Courts at Law at
                              [Nl ot less than One Thousand DoBars($/OOO) less per
                              annum than the total annual salarv,         mcluding
                              supplements,    received by Judge she        Distric‘t
                              Courts in such counties. . . .

                  (Emphasis added). Acts 1979,66th Leg., ch. 686, 6 4, at 1639.

                         Article 3883i-2, V.T.C.S., was originally adopted by the legislature in
                  1971 as Senate Bill 379,~ and contained two substantive sections, both of
                  which empIoy the phrase “not less than” in establishing salary provisions in
                  affected counties.    Section 2, as amended by Senate Bill 686, of the 66th
                  Legislature, relates to the salary of the county~judge, and provides:

                              . . . the Commissioners Court shall fix the salary of
                              the County Judge at not less than One Thousand
                              Dollars ($1,000) more per annum than the total annual
                              salary recerved by Judges of the County Courts at
                              Lnw, and Judges of the County Criminal Courts at
                              Law insueh counties. , . .




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Honorable Joe Reswebcr      -   Page Two         (MW-150)



(Emphasis added). Senate Bill 686, S 4, at 1639-1640.

       Standing alone it is possible that the phrase “not less than” in conjunction with “less”
as used in section 1 of the act could be construed to establish a maximum or ceiling on the
salaries to be paid the county level judges described therein. However, a provision will
not be given a meaning out of harmony with other provisions and inconsistent with the
purpose of the act, though it would be susceptible of such construction if standing alone.
53 Tex. Jut.2d 232, § 160.

      The language “not less than,” as used in section 2, clearly modifies the benchmark of
“One Thousand Dollars ($1,000) more” to be used in computing the minimum salary to be
paid the county judge. Construing the act as a whole and harmonizing its provisions, it
follows that the phrase “not.less than” in section 1 must be read to modify the benchmark
of ‘Y)ne Thousand Dollars ($1,000) less” in computing the minimum salaries to be paid the
judges thereby affected.

        This interpretation further comports with the use of the phrase “not less than”
 throughout those statutory provisions surrounding it which provide for the compensation of
 county level officials; For example, the preceding article 3883i-1, V.T.C.S., consistently
 uses the phrase “not less than” to establish minimum salaries, with no upward limits’
 Ceilings or maximums are elsewhere established by use of the wads “not more than,” “nor
 more than,” or “not to exceed” Similarly,,statutoty   language setting upward limits cm the
 compensation of certain district judges and justices of the courts of civil appeals utilized
 the phrase “may receive a . . . salary . . . which is one thousand dollars ($1,000) @      to
 establish a ceiling or maximum. (Emphasis added).Acts      1973, 63rd Leg., ch. 659, at 1809.
-See Attorney General Opinion H-123 (1973).
      The consistent use of the phrase “not less than” to establish a minimum level of
compensation, together with the consistent use of other words and phrases to establish
maximums, leads to the conclusion that it is used in section,1 of article 3883i-2, V.T.C.S.,
to establish a minimum salary. Words are presumed to have been used in the same sense
that they bear in another statute on the same or an analogous’subject, as construed by
decisions made before enactment of the law under consideration.          53 Tex. Jur.2d 270,
Sl8L

      Had it intended to impose a maximum on the salaries provided for in article 3883i-2,
V.T.C.S., the legislature could have utilized any of the traditional language employed
elsewhere in the statutes, or simply said less than one thousand dollars less.”

      Standing alone, the phrase “not leas than” has been construed as an alternative to the
phrase “at least” for purposes of establishing a minimum sum. See Commercial Union
Insurance Co. of New York v. Mabry, 442 S.W.2d 413, 414 (Tex. Cx App. - Houston Hst
Did.1 1969, no writ), where the,court held that the claimant’s language in an action under
the Workman’s Compensation Act that he had earnings of “at least” $13 meant “not less
than” and did not fix an upper Emit to his allegations.




                                            P.    483
Honorable Joe Resweber       -   Page Three    tM’+159)



        To construe ‘not less than” in conjunction         with the term “less” to give it an
interpretation    of “not more than” would result in     an application totally contrary to its
accepted meaning. A statute will not be construed         in such a way as to produce an absurd
result.   Oriental Hotel Co. v. Griffiths, 33 S.W. 652   (Tex. 1895). Attorney General Opinion
H-123 (1973).

       To sustain the position that the language of section 1 imposes a maximum, it WOlJld
be necessary to change the affirmative statement - that the salaries must be “not less
than” a certain level - to a negative, by having it read, “not more than” a certain level.
The omission of words used,.or the transposition of them, as a result of which the meaning
is altered, cannot be oetmitted, unless neceasarv tomcarrv out .some olainlv manifested
intent. Miller v. Rodd; 131 A. 482, 483 (Pa. 1925): See aIs6 City of Olive Hiil v. Howard,
273 S.W.2d 387 389 (Ky. 19541, where the court held that there is no distinction between
“at least” and “not less than” and that each prescribes a “mandatory minimum.” On this
basis, it is readily apparent that the mandatory minimum which may. be paid the affected
judges under article 3883i-2, V.T.C.S., section 1 is one thousand dollars less thin the total
amount, including supplements, paid to district judges in affected counties.

       We believe this interpretation     is consistent with the normal statutory pattern
followed in sim@r offices. The legislature establishes a minimum salary in the context of
a salary structure designed to insure that each higher office receives a somewhat higher
salary. See, e.g,, Acts 1979, ch. 843, at 2470.

                                       SUMMARY

           If the total annual salary, including supplements, received by each
           of the district court judges of Harris County, Texas, is $54,587, the
           Commissioners Court of Harris County, pursuant to article 3883i-2,
            V.T.C.S., must fix the salary of each of the county.court at law and
           county criminal court at law judges at a minimum of~$53,587 per
           annum.




                                               Attorney General of Taxas

JOHN W. FAINTER, JR.
First Assistant Attorney General

TED L. HARTLEY
Executive Assistant Attorney General

Prepared by Bob Gammage
Assistant Attorney General




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        Honorable Joe Reswebet      -   Page Four    (m-150)



        APPROVED:
        OPINION COMMITTEE

        C. Robert Heath, Chairman
        Bob Gammage
        Susan Garrison
        William G Reid




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