   OFFICE OF THE ATTORNEY GENERAL . STATE OF TEXAS

   JOHN     CORNYN




                                              December 3,200l



The Honorable Susan D. Reed                              Opinion No. JC-0438
Bexar County Criminal District Attorney
300 Dolorosa, Fifth Floor                                Re:      Longevity  pay for         certain    assistant
San Antonio, Texas 78205-3030                            prosecutors   (RQ-0397-JC)


Dear Ms. Reed:

        You have asked this office several questions regarding a recent amendment to chapter 41 of
the Government Code, which adds subchapter D thereto mandating longevity pay for assistant
prosecutors who have accrued at least four years of service.’ We conclude that the statute in
question requires the county to make this payment whether or not the legislature has appropriated
enough for the county to be reimbursed, that the payments may not be offset against any other
portion of an employee’s compensation, and that the first four years of accrued service are counted
in the calculation of the longevity pay.

        House Bill 178, enacted by the 77th Texas Legislature, adds subchapter D to chapter 41 of
the Government Code. See Act ofMay 15,2001,77th Leg., R.S., ch. 378 Tex. Sess. Law Serv. 663                        .
(to be codified at TEX. GOV’T CODE ANN. $4 41.251-.257). House Bill 178 is effective on January
1,2002, see id. at 665, and we will hereinafter refer to it as it will appear codified in the Government
Code. Pursuant to this statute, an assistant prosecutor who has accrued at least four years of lifetime
service is entitled to receive a longevity supplement. See TEX. GOV’T CODE ANN. 8 41.252(a). “The
monthly amount of longevity pay is $20 for each year of lifetime service credit.” Id. 6 41.253(a)
(emphasis added). The county “shall pay” this supplement out of its general fund and “may not
reduce the salary ofthe assistant prosecutor to offset the longevity pay supplement.“Id.      5 41.255(a),
(b). “The state shall reimburse a county for amounts expended for longevity pay supplements under
this subchapter.” Id. 5 41.255(d).

         You ask first whether the county is obligated to pay the supplement whether or not the
legislature has allocated sufficient funds to reimburse it. See Request Letter, note 1, at 1. Based
upon your reading of the fiscal note accompanying the bill, you believe that there are not sufficient
funds allocated for this purpose. See id. To decide whether in fact there were not sufficient funds
so allocated would require factual determinations of a sort this office does not make in the opinion




         ‘Letter from Honorable Susan D. Reed, Bexar County Criminal District Attorney, to Honorable John Cornyn,
Texas Attorney General, at 1 (June 25,200l) (on file with Opinion Committee) [hereinafter Request Letter].
The Honorable   Susan D. Reed - Page 2           (JC-0438)




process. See Tex. Att’y Gen. Op. Nos. JC-0020 (1999) at 2; M-187 (1968) at 3; O-291 1 (1940) at
2. In the event the legislature has not appropriated sufficient funds to recompense the counties for
such payments, the counties have no claim against the state for them. See Mutchler v. Tex. Dept. of
Pub. Safety, 681 S.W.2d 282,284-85 (Tex. App.-Austin 1984, no writ); Socorro Indep. Sch. Dist.
v. State Bd. of Educ., 968 S.W.2d 547,553 (Tex. App.-Austin 1998, pet denied) (“If the Legislature
did not see fit to provide funding for this mandate, [the court] cannot do it for them.“).

         On the other hand, the statute does not, as you correctly point out, “make a county’s
obligation to pay a longevity supplement contingent on reimbursement from the state.” Request
Letter, supra note 1, at 1. Rather, it requires that “the county shall pay [the supplement] . . . out of
the county general fund.” TEX. GOV’T CODEANN. 5 41.255(a). It is a well-established principle of
statutory interpretation that “while the word ‘shall,’ when used in a statute may be and frequently
is directory, the word is generally construed to be mandatory . . . .” Mutchler, 681 S.W.2d at 284.
Moreover, the bill analysis for House Bill 178 confirms that the language is so intended: “The bill
requires the county to pay a longevity pay supplement out of the county general fund and prohibits
the county from reducing the salary of the assistant prosecutor to offset the longevity pay
supplement.” HOUSECOMM. ON JUDICIALAFFAIRS,BILL ANALYSIS,Tex. H.B. 178,77th Leg., R.S.,
(2001) (emphasis added). As this office has recently reiterated, duties imposed on local officials by
the legislature must be performed regardless of whether sufficient resources are made available. See
Tex. Att’y Gen. Op. No. JC-413 (2001) at 1: see also Tex. Att’y Gen. Op. No. H-595 (1975) at 2
(statute imposing duty on sheriff to execute process “is absolute in its terms and an inadequate
operating budget will not excuse a sheriffs failure” to comply with statutory duties).

         You next ask whether you may credit longevity pay currently provided pursuant to a county
program to county employees generally to the $20 per month per service year payment to assistant
prosecutors mandated by House Bill 178. See Request Letter, supra note 1, at 1. You may not.
Section 41.253(a) requires that the county supplement assistant prosecutors’ pay by $20 per month
for each year of lifetime service credit. See TEX.GOV’T CODEANN. 0 41.253(a). Section 41.255(b)
forbids the county to reduce the salary of an assistant prosecutor “to offset the longevity pay
supplement.” Id. 8 41.255(b). Longevity pay is not merely a benefit, but is an element of salary.
See Tex. Att’y Gen. LO-96-007, at 2 (“Longevity pay, an incremental increase in salary based on
length of service, has been held to be a part of compensation.“) (emphasis added) (citation omitted);
Tex. Att’y Gen. LO-97-010, at 4 (longevity pay of Texas Youth Commission teachers included
within salary rate). Reading sections 41.253(a) and 41.255(b) together, the statute requires the
county to pay each assistant prosecutor who has accrued sufficient service time $20 per month more
for each year of service time; that $20 per month is over and above the assistant prosecutor’s present
rate of compensation. Any crediting of some part of the prosecutor’s present compensation is in our
view indistinguishable   from the offsetting the statute by its terms forbids.

        Finally you ask whether “the first four years of a prosecutor’s service count in the calculation
of longevity pay.” Request Letter, supra note 1, at 1. They do. The statute provides that “[tlhe
monthly amount of longevity pay is $20 for each year of lifetime service credit.” TEX. GOV’T CODE
ANN. 5 41.253(a). N o such phrase as “excluding the first four years” is to be found here, and this
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office has no power to supply such an emendation.           “The courts will not read into a statute
exceptions which are not embodied therein.” Stubbs v. Lowrey’s Heirs, 253 S.W.2d 312,313 (Tex.
Civ. App.-Eastland     1952, writ ref d n.r.e.). Nor is it the case, as your letter suggests, that “[a]
prosecutor can’t receive the supplement until after the fifth year,” by which we assume you mean
after the accrual of five, rather than four full years. See Request Letter, supra note 1, at 2. The
statutory directive is clear and unambiguous:    “The increase is effective beginning with the month
following the month in which the fourth year of lifetime service credit is accrued.” TEX. GOV’T
CODE ANN. $41.253(b) (emphasis added).
The Honorable   Susan D. Reed - Page 4           (JC-0438)




                                        SUMMARY

                         Subchapter D of chapter 41 of the Government Code,
                effective January 1, 2002, requires a county to pay a longevity
                supplement of $20 per month for each year of lifetime service credit
                to assistant prosecutors who have accrued four years of such credit,
                regardless ofwhether the legislature has appropriated sufficient funds
                to recompense the county for such payments. Such payments may
                not be offset against any other portion of an employee’s
                compensation.     The first four years of service time are to be counted
                in the calculation of the longevity pay.




                                                                       T
                                                JOHN     CORNYN
                                                Attorney General of Texas



HOWARD G. BALDWIN, JR.
First Assistant Attorney General

NANCY FULLER
Deputy Attorney General - General Counsel

SUSAN D. GUSKY
Chair, Opinion Committee

James E. Tourtelott
Assistant Attorney General, Opinion Committee
