Hon. Douglas A. Newton              Opinion No. C-110
District Attorney
63rd Judicial District              Re:   Amount of salary due
Courthouse                                retired judges called
Del Rio, !J!exae                          to active duty under
                                          the provisions of'
Dear Mr. Newton:                          Article 2OOa, V.C.S.
       You have requested the opinion of this office aa to the
correct amount of salary that 1s payable to a retlred district
judge who Is called to active duty on the bench by the Preeld-
lng Judge of an Admln$straflveJudicial District, unaer the
provisions of Article 2OOa, Vernon's Civil Statutes.
       Section 5a.of Article 200a, V.C.S., reads in part a8
follows:
            ”
                .   .   .


           'IThecompensation,salaries and expenses of
      such (retired) judges wh&le 80 assigned or re-
      assigned shall be paid ln accordance with the laws
      of the state, except that the salary of such re-
      tired judges shall be paid out of moneys appropriated
      from the Qeneral Revenue Fund for such purpose in an
      amount repreeentlng the differencebetween~all of the
      retirement benefits of such judge as a retired district
      judge and the salary and compenaatlonfrom all sources
      of the judge of the court wherein he Is amlgned, and
      determlned pro-rata for the period of time he actual-
      ly sits a8 such assigned judge. Added Acte 1957#
      55th Leg., p. 1.236; ch. 408, sec. 1." ,(Fimphasls
                                                       sup-
      plied)
       Since the pa&age of thls Act, the Comptroller of Public
Accounts has Interpreted the above provision to mean that the
payment6 from the General Revenue Fund shall bk made for only
iztepart of the regular judge's salary that Is paid by the
        The Comptroller's constructionoperates to exclude from
the c&nputationany salary that la.recelvedby the regular judge
from the county because of admlnletratlveduties or memherehip
on a juvenile boaxd.~ A county la,authorized or directed to make

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.   .




        Hon. Douglas A. Newton, Page 2. . (C-110 )

        these payments to a regular judge by virtue of statute, and these
        payments become part of the salary of the regular districtjudge.
        Holland v. Harris County, 129 Tex. 118, 102 S.W.2d 196 (1937).
               The Comptrollerviews the Holland case, supra, as authority
        for Ns position that the State l-red        to pay only the pro
        rata part of the regular district judge's salary that Is received
        from the State, relying on the fact that the Holland case held
        that Harris County was required to pay to Ju&ge Holfand a pro
        rata share of what it normally paid to the regular district
        judge for Ns activities In connectionwith the juvenileboard
        of the county. Holland does not support the position of the
        Comptroller In this regard, for the following reasons: (1)
        Holland was concerned with a special judge appointed under the
        iTFGZ%Tons of Article 6821, V.C.S.; (2) Article 6821, V.O.S.,
        provides that a special judge shall receive the "ssme pay" as
        a regular district judge, but makes no special provision as to
        the source of that pay. It seems quite olear then, and the
        Holland case so assumed, that the pay for the special judge was
        to      from the same sources a8 the pay of the regular judge.
        Insofar as an Interpretationof Article 2OOa la concerned,the
        Holland case Is authority only for the proposition that statu-
        tory compensationfor admlnlstratlveduties or juvenile board
        duties Is considered to be part of a judge's'Pegularsalary.
               It should be noted that In 1961, the Legislature enacted
        Articles 6819a-19b, 6819a-25a and 681ga-26:  These statutes
        apply respectively to Harris County, Bexar and Dallas Counties,
        and to Tarrant County. Since the phraseology Is similar In
        each statute, we will uote the pertinent portion from only
        one of them, Article 6819a-19b:
                   "Section 1. (a) . . . Any district judge of the
              State who may be assigned to sit for the judge of any
              district court In such counties under the provisions
              of Article 200-A, Revised Civil Statutes, may, while
              80 serving, receive In addition to Ns necessary ex-
              penses, additional compensationfrom county funds In
              an amount hot to exceed the difference between the
              pay of such visiting judge from all sources and that
              pay received from all sources by district judges In
              the counties affected by the provisions of this Act,
              such amount to be paid by the county upon approval
              of the presiding judge In which said court Is located."
        It is the contention of the Comptroller that the above cited
        statutes buttress their constrmotlonof the language of Artl-
        cle 2OOa, In that here the Legislature has clearly expressed
        an Intention to impose upon the counties the burden of paying
        their share of the costs of assigning a retired judge to sit.

                                   -544-
Ron. Douglas Ai.Neeon,~Page ,3.:::.   (C410) :' .~


We do not agree with that view of the action taken by the Legls-
lature In the above cited statutes.
           the enactment of Articles 6819a-lgb, 6819a-25a,and
 6819a-2z the Legislature has clearly placed upon the particular
 counties concerned the burden of paying the compensationbf
 retired judges called under the provisions of Article 2OOa. The
 counties concerned with these enactments are the largest In this
 State, &nd presumably the ones most able to meet any unexpeoted
 financial outlay, euch as the salary of,sn additional dlstrlct
 court judge. We must further note that, at the same session of
 the Legislature that ,enactedthe three statutes above referred
 to, granting additional compensationto district judges of cer-
 tain counties, the Legislature enacted five other similzixstatutes,
'affecting smaller oountles, and excluded the provision for county
 payment of expendituresnecessitatedb the calling of a.retlred
 8%    under Article 2OOa. (Articles 6&a-lga, 681ga-27, 6819a-,
      lga-29, 6819a-30). This Is compelling evidence of the Legls-
 lailve Intent, and must override the Departmental construction
 placed upon It by the Comptroller.
       In view of the foregoing, we must hold that'the plain
language of Article 2OOa, sectlon 5a, V.C.S., Is controlling.
A retired judge assigned under the provisions of the Act Is
entitled to have his compensationbased upon the total~statu-
tory salary of the district judge for whom he Is assigned, re-
gardless of whether such salary comes from the State or from
the county and shall be paid out of moneys approprlated,from
the General Revenue Fund for such purpose.


                         SUMMARY'
            When a retired district judge Is as-
            signed under the provlslons of Article
            2OOa, V.C.S., his compensatlon~ls to
            be baaeU upon the total,statuto??ysal-
            ary of the dlstrlot judge for whom he
            Is assigned, regardless of whether such
            salary comes from the Sta$e or from
            the county and shall be paid out of




                             -545-
Hon. Douglas A. Newton,'pages,a.   '(C-110 1


            moneys appropriatedfrom the General
            Revenue Fund for such purpose.
                              Yours very truly,
                              WAGGONER CARR
                              Attorney General




MLQ:jh:zt


APPROVED:
OPINION COMMITPEE
W. V. Geppert, Chairman
Pat Bailey
Frank Booth
Cecil Rotsch
HowardMaya
'APPROVEDFOR THE ATpORNi%MNEFiAL
By: Stanton Stone




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