    OWICE   OF THE ATTORNE”   GENERAL.   STATE OF TEXAS

   JOHN CORNYN




                                                 December 16,1999



The Honorable Stephen H. Smith                            OpinionNo. JC-0159
District Attorney
119th Judicial District                                   Re: Salary of County Court-at-Law Judge in
124 West Beauregard                                       Tom Green County (RQ-0095-JC)
San Angelo, Texas 76903

Dear Mr. Smith:

        Your question concerns the salary to be paid county court-at-law judges according to section
25.0005 of the Government Code. You ask whether Tom Green County, in fiscal years 1997 and
1998, was required to pay its county court-at-law judges the salary set~outin subsection 25.0005(a)
ofthe Government Code, which until October 1, 1999, required the commissioners court to set the
salary “at an amount that is at least equal to the amount that is $4,000 less than the total annual
salary received by adistrictjudge inthe county.” Act ofJune 1,1997,75thLeg., R.S., ch. 1119,s 1,
1997 Tex. Gen. Laws 4262,4263, amended by Act of May 30, 1999,76th Leg., R.S., ch. 1572,
$5 1, 11,1999 Tex. Sess. Law Serv. 5404,5407 (codified at TEX. GOV’T CODEANN. 5 25.0005(a)
(Vernon Supp. 2000). We conclude that subsection 25.0005(a) governed the salary in fiscal years
1997 and 1998 for county court-at-law judges in Tom Green County.

         Section 25.0005 of the Government Code establishes a plan, voluntary with each county, for
raising the salaries of county court-at-law judges to an amount near that earned by a district judge.
E&or County v. Hollmann, 901 S.W.2d 687,689 (Tex. App.-El Paso 1995, no writ). The incentive
for adopting the plan is found in Government Code section 51.702, which authorizes the
commissioners courts to collect additional fees through the statutory county courts. A county that
chooses to collect the fees must pay county court-at-law judges the salary required by sections
25.0005(a) or (e). See generally Hollmann, 901 S.W.2d at 689; Tex. Att’y Gen. LO-94-048, at 3.
A county opts into the plan by adopting a resolution authorizing collection of the additional fees
and costs, and it remains in the plan until it rescinds its resolution. See TEX. GOV’T CODE ANN.
5 51.702(f)-(h) (Vernon Supp. 2000). The filing fees collected under section 51.702 of the
Government Code are sent to the Comptroller for deposit in the judicial fund of the state treasury.
See id. 4 21.006 (Vernon 1988) (judicial fund); id. 5 51.702(d) (Vernon Supp. 2000). Each county
that collects the additional fees and costs receives annually from the state “an amount equal to
$35,000 for each statutory county court judge in the county” who does not engage in the private
practice of law and who meets other statutory qualifications. Id. $25.0015(a)). At the end of each
 fiscal year the Comptroller compares the amount of money deposited in the judicial fund under
 section 5 1.702 with the amounts paid to the counties and remits to the participating counties any
 excess of deposits into the fund over payments to the counties. See id. 5 25.0016(a). The money
The Honorable Stephen H. Smith - Page 2            (X-0159)




is paid to the county’s general fund to be used “only for court-related purposes for the support of the
judiciary.” Id. 5 25.0016(b).

        Section 25.0005(a), prior to its amendment effective October 1,1999, provided as follows:

                        (a) A statutory county court judge, other than a~statutory
                county court judge who engages in the private practice of law or a
               judge in whose court fees and costs under Section 51.702 are not
               collected, shall be paid a total annual salary set by the commissioners
                court at an amount that is at least equal to the amount that is $4,000
                less than the total annual salary received by a district judge in the
                county. A district judge’s or statutory county court judge’s total
                annual salary includes contributions and supplements, paid by the
                state or a county, other than contributions received as compensation
                under Section 74.051 [compensation for performing duties of a
               presiding judge].

Act of June 1, 1997, 75th Leg., R.S., ch. 1119, 5 1, 1997 Tex. Gen. Laws 4262, 4263. Section
25.0005(a) of the Government Code now requires the commissioners court to set a county court-at-
law judge’s salary “at an amount that is at least equal to the amount that is $1,000 less than the total
annual salary received by a district judge in the county on August 3 1, 1999.” TEX. GOV’T CODE
ANN. § 25.0005(a) (Vernon Supp. 2000).

         You state that neither judge in Tom Green County maintains a private practice and that the
county collected the court costs and fees set out in section 5 1.702 of the Government Code during
the years in question. See Letter from Honorable Stephen H. Smith, District Attorney, 119th Judicial
District, to Honorable John Comyn, Texas Attorney General (July 15,1999) (on tile with Opinion
Committee) [hereinafter “Request Letter”]. Thus, the minimum salary requirement of section
25.0005(a) applied in Tom Green County in 1997 and 1998, unless the county complied with the
alternative salary setting provision found in subsection 25.0005(e) of the Government Code. Prior
to October 1, 1999, subsection 25.0005(e) stated that a county was not required to meet the salary
requirements of subsection 25.0005(a) for a particular county court at law 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:

                           (A) $20,000 more than the salary the judge was entitled
                to on May 1 of that year, ifthe county initially begins collecting fees
                and costs under Section 51.702 before January 1,1998, and is also at
                least $24,000 more than the salary the judge was entitled to on May
                1,1997; and
The Honorable Stephen H. Smith - Page 3          (JC-0159)




                         (B) [salary if the county initially begins collecting fees
              and costs on or after January 1, 19981;

                     (2) the county maintains the salary at the minimum required
              by Subdivision (1);

                      (3) the county collects the fees and costs as provided by
               Section 51.702;

                      (4) Cjurisdiction of court]; and

                       (5) except as provided by Subsection (t) [county not required
               to pay a salary exceeding the minimum salary under Subsection (a)],
               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.

Act of June 1,1997,75th Leg., R.S., ch. 1119, fj 1,1997 Tex. Gen. Laws 4262,4263, amended by
Act of May 1, 1997,75th Leg., R.S., ch. 80, 5 1, 1997 Tex. Gen. Laws 163 (current version at TEX.
GW’T CODEANN. 5 25.0005(e) (Vernon Supp. 2000)). As amended, effective October 1, 1999,
subsection 25.0005(e)(l) now provides that:

                        not later than September 1 of the year in which the county
               initially begins collecting fees and costs[,] . . the county increases
               the salary . . 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 51.702.

Act ofMay 30,1999,76th Leg., R.S., ch. 1572 5 I,1999 Tex. Sess. Law Serv. 5404,5405 (codified
as an amendment to TEX. GOV’TCODEANN. $25.0005(e)).

        You state that Tom Green County did not comply with the requirement in subsection
25.0005(e)(5) that the county use 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. See Request
Letter. None of the excess payments remitted to Tom Green County in fiscal years 1997 and 1998
under Government Code section 25.0016 were distributed to the judges as compensation pursuant
to section 25.0005(e) of the Government Code. See id. Because Tom Green County has not
complied with at least one provision of subsection 25.0005(e), the county is not within the
exemption. Accordingly, in fiscal years 1997 and 1998, subsection25.0005(a) governed the salaries
of county court judges in Tom Green County, requiring the commissioners court to set these salaries
at an amount at least equal to $4,000 less than the district court judge’s annual salary. See Act of
June 1, 1997,75th Leg., R.S., ch. 1119,§ 1, 1997 Tex. Gen. Laws 4262,4263.
The Honorable Stephen H. Smith - Page 4             (X-0159)




         You ask whether the county may now distribute at least 50 percent ofthe excess contribution
to the county court-at-law judges as salary for fiscal years 1997 and 1998, in order to comply with
subsection 25.0005(e) for those years and remove these salaries from subsection 25.0005(a). You
have submitted information showing that Tom Green County paid its county court-at-law judges
$68,801 in fiscal year 1997 and $74,108 in fiscal year 1998. See Request letter, Attachment B. A
district judge’s annual salary, exclusive of supplements, in the fiscal year ending August 3 1, 1997,
was $85,217, and in the fiscal year ending August 31, 1998, it was $92,217. See General
Appropriations Act, 75th Leg., R.S., ch. 1452, art. IV, 1997 Tex. Gen. Laws 5535,6016 (Judiciary
Section, Comptroller’s Department); General Appropriations Act, 74thLeg., R.S., ch. 1063, art. IV,
1995 Tex. Gen. Laws 5242, 5736 (Judiciary Section, Comptroller’s Department). According to
these figures, in 1997 and 1998 Tom Green County paid the county court-at-law judges less than the
minimum salaries required by section 25.0005(a). You wish to know whether you may now remedy
this matter by bringing the county court-at-law judge’s salaries for those two years under section
25.0005(e).

          Salaries of county officers and employees are set by the commissioners court in the county
budget, which is prepared by the county judge “to cover all proposed expenditures of the county
government for the succeeding fiscal year.” TEX. Lot. GOV’T CODE ANN. $5 111.003 (Vernon
 1999) (budget prepared by county judge), 152.013 (salaries set by commissioners court); see also
Tex. Att’y Gen. Op. No. JM-1138 (1990). Thus, the commissioners court sets the salaries ofcounty
court-at-law judges annually, for the next fiscal year. See TEX. Lot. GOV’TCODE ANN. fj112.010
(Vernon 1999) (county fiscal year is calendar year unless commissioners court adopts different one-
year period as authorized by statute). If a commissioners court wishes to pay its county court-at-law
judges according to Government Code subsection 25.0005(e) the county must use “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.” TEX. GOV’T CODE ANN. 5 25.0005(e)(5) (Vernon Supp.
2000). We believe that a county’s compliance with subsection 25.0005(e) must be determined
 according to the actions it takes during each year in which it attempts to set the judges’ salaries under
that provision. Thus, the county must use for judges’ salaries “at least 50 percent” of the amount
received under section 25.0016 during the county fiscal year in which the salary is set under section
 25.0005(e), and it may not bring a salary within that section by disbursing section 25.0016 funds
 after the fiscal year has come to an end. If the county could postpone from year to year its
 distribution of section 25.0016 receipts for these salaries, it would be virtually impossible to
 determine whether or not it had complied with section 25.0005(e). Moreover, the county could
 decide at the end of any year to rescind its authorization for the additional fees and costs collected
 under section 5 1.702, thus freeing itself from compliance with section 25.0005.

         During the 1997 and 1998 fiscal years in Tom Green County none of the section 25.0016
receipts were disbursed for the judges’ salaries. Accordingly, Tom Green County did not comply
with the section 25.0005(e) salary-setting requirements for those years. The county court-at-law
judges are entitled to receive as salary for those years the amounts required by subsection 25.0005(a)
 of the Government Code.
The Honorable Stephen H. Smith - Page 5          (X-0159)




                                      SUMMARY


                      A county that opts to collect the court costs and fees
              authorized by section 51.702 of the Government Code must set
              salaries for its county court-at-law judges according to section
              25.0005(a) of the Government Code, unless the county sets the
              salaries according to the requirements of subsection 25.0005(e). One
              requirement of subsection 25.0005(e) is that the county use for the
              salaries of statutory county court judges at least 50 percent of certain
              amounts received from the state each year. Tom Green County,
              which collects the fees authorized by section 51.702 of the
              Government Code, did not use any of the receipts from the state for
              the salaries of county court-at-law judges in fiscal years 1997 and
               1998. The county therefore did not meet the requirements of section
              25.0005(e) ofthe Government Code for those fiscal years. It may not
              now, after the close of those fiscal years, bring the salaries for those
              years into compliance with section 25.0005(e) of the Government
              Code by applying 50 percent of the receipts to salaries paid in those
              years. The county court-at-law judges of Tom Green County are
              entitled to receive as salary for fiscal years 1997 and 1998 the
              amounts required by subsection 25,0005(a) ofthe Government Code.




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                                              JOAN     CORNYN
                                              Attorney General of Texas


ANDY TAYLOR
First Assistant Attorney General

CLARK RENT ERVIN
Deputy Attorney General - General Counsel

ELIZABETH ROBINSON
Chair, Opinion Committee

Susan L. Garrison
Assistant Attorney General - Opinion Committee
