                              ATTORNEY            GENERAL          OF   TEXAS
                                           GREG        ABBOTT



                                                  May 1,2006



The Honorable Elizabeth Murray-Kolb                    Opinion No. GA-0426
Guadalupe County Attorney
101 East Court Street, Suite 104                       Re: Duty of officers who are magistrates under
Seguin, Texas 78155-5779                               Code of Criminal Procedure article 2.09 to provide
                                                       warnings to arrestees and whether magistrate duties
                                                       constitute a judicial function (RQ-0410-GA)

Dear Ms. Murray-Kolb:

         An arrested person must be taken to a magistrate soon after the arrest to be informed of his
rights. See TEX. CODE CRIIVI.   PROC. ANN. art. 15.17 (Vernon Supp. 2005) (arrest under warrant).
You inquire about the responsibility of the officers who are magistrates under Code of Criminal
Procedure article 2.09 to provide the warnings to an arrested person that Code of Criminal Procedure
articles 14.06 and 15.17 require.’ See id.; see also id. art. 14.06 (person arrested without awarrant).

1.      Magistrates who must provide warnings                 to arrested persons pursuant           to Code of
        Criminal Procedure article 15.17

        You first ask whether every individual who qualifies as a magistrate under Code of Criminal
Procedure article 2.09 has “an equal mandatory duty to serve as a magistrate, or is it only a justice
of the peace who has a mandatory duty to serve as magistrate?” Request Letter, supra note 1, at 1-2.
You state that two of the justices of the peace in your county historically have undertaken most of
the magistrate duties because their offices are near the jail. See id. at 2. Currently all arrestees are
taken to the county jail except persons arrested for municipal violations, who are taken before
municipal judges. See id. The Guadalupe County justices of the peace wish to know whether all
qualified magistrates, including district judges, county court at law judges, and county judges, have
an equal duty to serve as magistrates or if the justices of the peace have a greater duty to serve as
magistrates. See id

        A.     Code of Criminal Procedure article 2.09

        Code of Criminal Procedure article 2.09 provides that

                 [e]ach of the following officers is a magistrate within the meaning of
                 this Code: The justices of the Supreme Court, the judges of the Court


          ‘See Letter from Honorable Elizabeth Murray-Kolb, Guadalupe County Attorney, to Honorable Greg Abbott,
Attorney General of Texas (Nov. 2,2005) (on file with the Opinion Committee, also mailable at http://www.oag.state
.tx.us) [hereinafter Request Letter].
The Honorable Elizabeth Murray-Kolb - Page 2              (GA-0426)



               of Criminal Appeals, the justices of the Courts of Appeals, the judges
               of the District Court, . the county judges, the judges of the county
               courts at law, judges of the county criminal courts, the judges of
               statutory probate courts,    the justices of the peace, and the mayors
               and recorders and the judges of the municipal courts of incorporated
               cities or towns.

TEX. CODECFXU.PROC.ANN. art. 2.09 (Vernon Supp. 2005). Article 2.09 also includes certain
magistrates, masters, and hearing officers appointed by judges in specific counties. See id. ,(also
including “magistrates appointed by the judges of the district courts of Bexar County, Dallas County,
or Tarrant County that give preference to criminal cases,      the magistrates appointed by the judges
of the district courts and statutory county courts that give preference to criminal cases in Travis
County,” and other magistrates, masters and hearing officers appointed by judges in specific
counties). See generally TEX GOV’TCODEANN. $5 54.201-.I705 (Vernon 2005 & Supp. 2005)
(chapter 54 concerning appointment of masters, magistrates, referees, and associate judges). There
are no appointive magistrates in Guadalupe County. See TEX. CODEGRIM.PROC.ANN. art. 2.09
(Vernon Supp. 2005); TEX GOV’TCODEANN. $5 54.201-.1705 (Vernon 2005 & Supp. 2005).

       The Code of Criminal Procedure sets out numerous powers and duties of magistrates. See
TEX. CODECR&I.PROC.ANN. arts. 2.10 (Vernon 2005) (“duty of every magistrate to preserve the
peace within his jurisdiction    .; to issue all process intended to aid in preventing and suppressing
crime [and] to cause the arrest of offenders”); 15.03(a) (“magistrate may issue a warrant of arrest or
a summons”); 15.17 (Vernon Supp. 2005) (magistrate to give warnings to arrested person); 16.03
(Vernon 2005) (warnings by magistrate in connection with examining trial).

        B.    Code of Criminal Procedure article 15.17

       Your concern is with a magistrate’s duties under Code of Criminal Procedure article 15.17,
which provides in part:

                         (a) In each case enumerated in this Code, the person making
                the arrest or the person having custody of the person arrested shall
                without unnecessary delay, but not later than 48 hours after the person
                is arrested, take the person arrested or have him taken before Some
                magistrate of the county where the accused was arrested or, to
                provide more expeditiously to the person arrested the warnings
                described by this article, before a magistrate in any other county of
                this state.       The magistrate shall inform in clear language the
                person arrested [of the accusation against him, of any affidavit filed
                therewith, of his right to retain counsel, of his right to remain silent
                and of other rights].

Id. art. 15.17(a) (Vernon Supp. 2005) (emphasis added)
The Honorable Elizabeth Murray-Kolb - Page 3                (GA-0426)



       Article 14.06 articulates magistrate duties when someone is arrested without a warrant, The
person making the arrest or having custody of the arrested person shall take that person

               before the magistrate who may have ordered the arrest, before some
               magistrate ofthe county where the arrest was made without an order,
               or, to provide more expeditiously to the person arrested the warnings
               described by Article 15.17 of this Code, before a magistrate in any
               other county of this state. The magistrate shall immediately perform
               the duties described in Article 15.17 of this Code.

Id. art. 14.06(a) (emphasis added); see id. arts. 14.01(b) (V emon 2005) (peace officer may arrest an
offender without a warrant for an offense committed within the officer’s view); 14.02 (magistrate
may verbally order arrest of offender without a warrant when a felony or breach of the peace has
been committed within the magistrate’s view). We will address the duty of “some magistrate of the
county” to give the warnings required by article 15.17, and this will also address the duties of “some
~magistrate of the county” under article 14.06. Id. arts. 14.06(a), 15.17(a) (Vernon Supp. 2005).

        C.    Analysis

         Article 15.17 requires the arrested person to be “taken before some magistrate of the county
where the accused was arrested.” Id. art. 15.17. “The magistrate shall inform” the arrested persons
of the items set out in article 15.17. Id. The words and phrases used in the Code of Criminal
Procedure are to be understood in their ordinary meaning except where specially defined. See id.
art. 3.01 (Vernon 2005). The word “shall” in statutes is generally construed as mandatory, unless
legislative intent suggests otherwise. See Albertson’s, Inc. v. Sinclair, 984 S.W.2d 958,961 (Tex.
1999). Accordingly, a magistrate of the county has a mandatory duty to provide the warnings
required by article 15 17 when an arrested person is brought before him.

         We read the phrase “magistrate of the county” in the context of article 15.17 and construe
it according to common usage. See TEX.GOV’TCODEANN. 5 3 11,011 (a) (Vernon 2005). We also
consider the purpose of the statute. See id 5 3 11.023( 1). Article 15.17 requires the arresting officer
to take the arrested person before “some magistrate of the county” where the accused was arrested
or, to provide the warnings more expeditiously, before “a magistrate in atiy other county” of this
state. TEX.CODEGRIM.PROC.ANN.art. 15.17(a) (Vernon Supp. 2005) (emphasis added); see also
id. art. 14.06 (using same terms). Just as the phrase “a magistrate in any other county” includes any
magistrate located in the other county, the phrase “magistrate of the county” means any magistrate
located in the county of arrest. The word “of’ sometimes means “in,” signifying location. See Bell
County v. Hines, 219 SW. 556,557 (Tex. Civ. App.-Austin 1920, writ refd); see also People v.
Hallner, 277 P.2d 393,395 (Cal. 1954) (the word “of’ may be used to indicate geographic location);
Zvey v. State, 37 S.E. 398, 399 (Ga. 1900) (“city court of Macon” means the city court should be
located in Macon). Thus, read in its context in article 15.17, the phrase “some magistrate of the
county”means“somemagistrate inthecounty.” TEX.CODECRIM.PROC.ANN.                   art. 15.17(a) (Vernon
 Supp. 2005). This reading helps implement the article 15.17 requirement that “the person arrested
 shall without unnecessary delay, but not later than 48 hours after the person is arrested,” id., be taken
 before a magistrate to be informed of his rights, because it means that all magistrates in the county
must provide the statutory warnings.
The Honorable Elizabeth Murray-Kolb - Page 4                       (GA-0426)



        D.     Conclusion

         We conclude that “the judges of the District Court,       the county judges, the judges of the
county courts at law, judges of the county criminal courts, the judges of statutory probate courts,
    the justices of the peace, and the mayors and recorders and the judges of the municipal courts of
incorporated cities or towns,” id. art. 2.09, in the county have a mandatory duty to provide the article
15.17 warnings when an arrested person is brought before them for that purpose. See generally
Alberti v. Sheriff ofHarris County, 406 F. Supp. 649,670 (S.D. Tex. 1975) (city judge, sitting as a
magistrate, may accept complaints and issue arrest warrants on cases which he cannot try on the
merits) (citing Attorney General Opinion C-718 (1966) at 2); A4cBee v. State, 981 S.W.2d 694,697
(Tex. App.-Houston [lst Dist.] 1998, pet. refd) (district judge serving as amagistrate); Tex. Att’y
Gen. Op. Nos. DM-313 (1995) at2, JM-151 (1984) at 1-2 (municipal judges serving asmagistrates).
While all magistrates have the same legal duty to provide warnings under article 15.17 when an
arrested person is brought before them, the frequency with which a particular magistrate performs
this duty may depend upon factors such as the magistrate’s location and the hours when the
magistrate is available to individuals who have an arrested person in custody.

II.     Is service as a magistrate a judicial function within Government Code section 26.006?

        The county judge of Guadalupe County recently applied for the state salary supplement 3                           y
authorized by Government Code section 26.006, which provides as follows:

                         (a) A county judge is entitled to an annual salary supplement
                 from the state of $15,000’ if at least 40 percent of the functions that
                 the judge performs are judicial functions.

                         (b) To receive a supplement under Subsection (a), a county
                 judge must tile with the Office of Court Administration of the Texas
                 Judicial System an affidavit stating that at least 40 percent of the
                 functions that the judge performs are judicial functions. The office
                 of court administration shall send the affidavit to the comptroller.

                           (c) The commissioners court in a county with a county judge
                  who is entitled to receive a salary supplement under this section may
                  not reduce the county funds provided for the salary or office of the
                  county judge as a result of the salary supplement required by this
                  section.

TEX. GOV’T CODE       ANN. 5 26.006 (Vernon Supp. 2005).



         *The provision requiring an annual state salary supplement of $15,000 became effective on   December 1,2005.
See Act of Aug. 9, 2005, 79th Leg., 2d C.S., ch. 3, $5 2, 25, 2005 Tex. Gen. Laws 34, 35, 40.         The annual salary
supplementprior   to December I,2005 was $10,000. See Act ofMay 31, 1999,76th Leg., R.S., ch.        1467,s 1.08, 1999
Tex. Gen. Laws 4996,500l;     Act ofMay 30, 1999,76th Leg., R.S., ch. 1572, $4, 1999 Tex. Gen.       Laws 5404,5405.
The Honorable Elizabeth Murray-Kolb - Page 5               (GA-0426)



         You ask as your second question whether acountyjudge’s service as a magistrate is ajudicial
function within section 26.006. See Request Letter, supra note 1, at 1,&5. As a threshold matter,
however, you suggest that section 26.006 may run afoul of Attorney General Opinion GA-0193
(2004), which concluded that a county could not pay a justice of the peace an amount in excess
of his salary for serving as a weekend magistrate. See id. at 5; see also Tex. Att’y Gen. Op. No.
GA-0193 (2004) at 4. Attorney General Opinion GA-0193 dealt with a justice of the peace whose
salary was set in the county budget pursuant to law, see TEX. LOC.GOV’TCODEANN. 5 152.013
(Vernon 1999), but the county, without statutory authority, also paid him additional amounts for
conducting inquests and serving as a magistrate. See Tex. Att’y Gen. Op. No. GA-0193 (2004) at
2. The justice of the peace had a mandatory duty to perform inquests and serve as a magistrate, and
the county could not pay him additional amounts in excess of his salary set in the budget for
performing these duties. See id. at 4. The county judge’s section 26.006 salary supplement differs
from the extra payments to justices of the peace discussed in Attorney General Opinion GA-0193
m that it is part of the county judge’s annual compensation for performing all of ‘his duties.
Moreover, Attorney General Opinion GA-O193 noted that the commissioners court may set the salary
of a justice of the peace or other county officer in an amount that reflects his usual workload. See
id.;see also Tex. Att’y Gen. Op. No. DM-51(1991). The legislature has providedthesection26.006
salary supplement to reflect the county judge’s expected performance ofjudicial functions based on
his past performance. Attorney General Opinion GA-0193 is not an impediment to a countyjudge’s
receipt of a salary supplement under section 26.006.

        The county judge qualifies for the section 26.006 supplement “if at least 40 percent of the
functions that the judge performs are judicial functions.” TEX. GOV’TCODEANN. 5 26.006(a),
(Vernon Supp. 2005). Accordingly, you wish to know whether a county judge’s service as a
magistrate is a judicial function within section 26.006. The Texas Court of Criminal Appeals has
said that the title “‘magistrate’ has come to connote one having duties which are judicial in nature.”
Exparte Clear, 573 S.W.2d 224,228 (Tex. Crim. App. 1978), accord O’Quinn Y. State, 462 S.W.2d
583, 587 (Tex. Crim. App. 1971). Accordingly, when a county judge sits as a magistrate, he
performs judicial functions.

III.    County’s obligations with respect to county judge’s state salary supplement            under
        section 26.006

        Your third question is as follows:

               (A) Is the state salary supplement a “salary increase” obligating
               compliance with all state statutory rules relative to an increase in the
               salary of an elected official?

                (B) May the county pay the federal and state withholdings after the
                adoption of the county budget wherein those expenditures were not
                included?

Request Letter, supra note 1, at 1, 6.
The Honorable Elizabeth Murray-Kolb - Page 6                        (GA-0426)




        The Guadalupe County Judge has applied for the state salary supplement under section
26.006(a), but the approved 2005-06 county budget did not include expenditures for county
payments related to the supplement required by a federal or state law. See id. at 6. For example,
federal law requires that both the employer and the employee pay a share of the Federal Insurance
Contributions Act (“FICA”) taxes for social security coverage. See Tex. Att’y Gen. Op. Nos. JC-
0397 (2001) at 1, JC-0227 (2000) at 1-2; see generally 26 U.S.C. $5 3101 (tax on employee), 3 111
(tax on employer) (2000). When a county officer receives a state salary supplement, the county must
use county funds to pay the employer’s share of FICA tax and may not deduct its share from the
officer’s salary supplement. See Tex. Att’y Gen. Op. Nos. JC-0227 (2000) at 3-4 (county may not
pay its share of FICA tax from state salary supplement for county attorney); JC-0397 (2001) at 4
(county may not pay its share of FICA tax from the county judge’s state salary supplement). The
Guadalupe County budget did not allocate funds for county expenses; such as the county’s share of
the FICA tax, relating to the county judge’s state salary supplement.

        The agenda for the October 11, 2005, Guadalupe County Commissioners Court meeting
included an item on transferring funds necessary to pay the benefits on the first installment of the
county judge’s state salary supplement. See Request Letter, supva note 1, at 6. However, a member
of the commissioners court asked whether paying these benefits was legal because it resulted in an
increase in the county judge’s salary that was not included in the 2006 budget. See id. You wish to
know whether a state salary supplement is a salary increase for county budget purposes. See id.

       Salaries and salary increases set by the commissioners court are subject to Local Government
Code section 152.013:

                          (a) Each year the commissioners court shall set the salary,
                  expenses, and other allowances of elected county or precinct officers.
                  The commissioners court shall set the items at a regular meeting of
                  the court during the regular budget hearing and adoption proceedings.

                           (b) Before the 10th day before the date of the meeting, the
                  commissioners court must publish in a newspaper of general
                  circulation in the county a notice of:

                              (1) any salaries, expenses, or allowances that are
                  proposed to be increased; and

                                 (2) the amount of the proposed increases.




          ‘You use the term “withholdings” to describe the payments the county is required by law to make with respect
to county offers’ and employees’ compensation. In the context ofthis request, “withholdings” does not include federal
income tax withheld from the county judge’s section 26.006 salary supplement and other compensation. See 26 USC
5 3402 (2000) (income tax to be withheld from an employee’s remuneration), see also id. § 3401(c)~(“employee”
includes an officer of a state or a political subdivision).
The Honorable Elizabeth Murray-Kolb - Page 7                      (GA-0426)



                        (c)     the commissioners court shall give written notice to
                 each elected county and precinct officer of the officer’s salary and
                 personal expenses.

TEX.   Lot.   GOV’T CODE    ANN. 5 152.013 (Vernon 1999).

        Section 152.013 applies to salaries set by the commissioners court. The commissioners court
does not set the section 26.006 state salary supplement. The legislature sets this supplement for a
county judge who performs the requisite amount ofjudicial services and also appropriates funds to
pay it. See General Appropriations Act, 79th Leg., RX, ch. 1369, art. IV, 2005 Tex. Gen. Laws
4324,483 1,4832 (Judiciary Section, Comptroller’s Department, Item Cl. 1.X amended by Act of
Aug. 9,2005,79th Leg., 2d C.S., ch. 3,s 18, sec. 16(a), (h), 2005 Tex. Gen. Laws 34,38,39. In
answer to your question 3A, the section 26.006 salary supplement is not subject to section 152.013.
relating to salary increases adopted by the commissioners court because the state, not the county, sets
the salary supplement. See Tex. Att’y Gen. Op. No. JM-I 138 (1990) at 2 (salary increase for county
court at law judge is by legislative mandate and is not within the commissioners court’s discretion).

        We finally consider your question 3B, whether the county may “pay the federal and state
withholdings after the adoption ofthe county budget wherein those expenditures were not included.”
Request Letter, supra note 1, at 1,6. Guadalupe County may transfer funds in its budget to make
the payments with respect to the section 26.006 supplement. Local Government Code section
111.010 provides that “the commissioners court may spend county funds only in strict compliance
with the budget, except in an emergency.” TEX. LOC. GOV’T CODE ANN. 5 111.010(b) (Vernon
1999); see also id. $ 111.010(c) (emergency expenditure authorized as a budget amendment “only
in a case of grave public necessity to meet an unusual and unforeseen condition that could not have
been included in the original budget”). Section 111.010(d) however, provides that

                 [t]he commissioners court by order may amend the budget to transfer
                 an amount budgeted for one item to another budgeted item without
                 authorizing an emergency expenditure.

Id. § 111.010(d).4 Thus the commissioners court may transfer funds from one budgeted item to
another to make payments with respect to the salary supplement that the county is legally required
to make. See Tex. Att’y Gen. Op. No. JM-1268 (1990) at 2 (with passage of Government Code
section 111.010(d) “it is no longer necessary for the commissioners court to find that an emergency
exists to justify a transfer from one budgeted item to another”).


          ‘Local Government Code chapter 111 provides in subchapter A for budget preparation in counties with a
population of225,OOO or less, in subchapterB for counties with a population of mwe than 225,000, and in subchapter
C for counties with a population of more than 125,000 that choose to operate under subchapter C instead of subchapter
A orB. S~~TEX.LOC.GOV’TCODEANN. $5 111.001, ,031, ,061 (Vernon 1999). GuadalupeCounty’spopulationplaces
it within subchapter A and section 111.010. See UNITED STATES CENSUS BUREAU, U.S. DEP’T OF COMMERCE;ZOOO
CENSUSOPPCIPULATION,     TEXAS QU~CKFACTS(population ofGuadalupe County was 89,023 in 2000; estimated at 99,620
in 2004), adable af http:llquickfacts.census.gov/qfd/states/~     187.html. Local Government Code sections 111.041
and 111.070 authorize transfers between budget items in counties operating under subchapters B and C. See TEX. LOC.
GOV’T CODE ANN. $5 111.041 (Vernon 1999), ,070 (Vernon Supp. 2005).
The Honorable Elizabeth Murray-Kolb - Page 8             (GA-0426)



                                      SUMMARY

                       Code of Criminal Procedure article 15.17 requires a
              magistrate of the county to provide statutory warnings to an arrested
              person brought before him. Magistrates of the county who have a
              mandatory duty to provide warnings under article 15.17 include
              district judges, county judges, the judges of the county courts at law,
              the judges of statutory probate courts, the justices of the peace, and
              the mayors, recorders, and judges of the municipal courts of
              incorporated cities or towns. The frequency with which a particular
              magistrate of the county performs this duty may depend upon factors
              such as the magistrate’s location and the hours when the magistrate
              is available to individuals who have an arrested person in custody.

                      Service as a magistrate pursuant to article 15.17 is a judicial
              function within Government Code section 26.006, entitling a county
              judge who serves as magistrate for a sufficient time to a state salary
              supplement.

                       Because the section 26.006 salary supplement is provided by
              the state, it is not subject to Local Government Code section 152.013.
              The Guadalupe County Commissioners Court may transfer funds
              from one budgeted item to another to make payments with respect to
              the county judge’s state salary supplement that the county is legally
              required to make.




                                                         eneral of Texas


BARRY R. MCBEE
First Assistant Attorney General

ELLEN L. WITT
Deputy Attorney General for Legal Counsel

NANCY S. FULLER
Chair, Opinion Committee

Susan L. Garrison
Assistant Attorney General, Opinion Committee
