                                   OFFICE qtheATTORNEY GENERAL
                                                       GREG          ABBOTT




                                                      January 22,2003



The Honorable Bruce Isaacks                                          Opinion No. GA-001 2
Denton County Criminal District Attorney
P.O. Box 2850                                                        Re: Whether statutory county court judges in
Denton, Texas 76202                                                  Denton County are entitled to receive benefit-
                                                                     replacement  pay as part of their annual
                                                                     compensation  (RQ-0576-JC)


Dear Mr. Isaacks:

        You have requested our opinion as to whether statutory county court judges, including
probate judges, in Denton County are entitled to receive benefit-replacement pay as part of their
annual compensation.

         Section 25.0632(c) of the Government Code requires Denton County to pay each statutory
county court judge in that county a salary that is equal to the salary paid to a Denton County district
judge: “The judge of each [Denton County] statutory county court and statutory probate court shall
be paid annual compensation equal to the annual compensation, including all supplements, paid from
 any public source to a district judge in the county.” TEX. GOV’T CODE ANN. 8 25.0632(c) (Vernon
 Supp. 2003). The current appropriations act sets district judge salaries at $101,700 annually. See
 General Appropriations Act, 77th Leg., R.S., ch. 1515, art. IV, 2001 Tex. Gen. Laws 5411, 5935.
In addition, the Denton County Commissioners Court may supplement each district judge’s state
 salary in an amount “not less than $2,400” annually. TEX. GOV’T CODE ANN. 5 32.061 (Vernon
 1988); see also General Appropriations Act, 77th Leg., R.S., ch. 15 15, art. IV, 2001 Tex. Gen. Laws
 5411, 5939 (referring to county supplements to district judges’ salaries).

           Certain district court judges also receive benefit-replacement    pay from the state. Since
December 3 1,1995, chapter 659, subchapter H of the Government Code has required each state-paid
judge to pay his or her own contributions to the social security program. See TEX. GOV’T CODE
ANN. 8 606.064(a) (Vernon Supp. 2003). In lieu of state-paid social security contributions, which
the state previously paid, the state includes benefit-replacement     pay as part of the salary of a state-
paid judge who held office on August 3 1, 1995, and who “was eligible for state payment of
 employee tax . . . on that date.” Id. $0 659.121(3)-(4), 659.122. Accordingly, for each pay period,
 a district judge who qualifies for benefit-replacement    pay receives an amount equal to the sum of:




                              An Equal   Employment    Opportunity   Employer   Printed   on Recycled   Paper
The Honorable Bruce Isaacks        - Page 2         (GA-0012)




                         (1) 5.85 [%] of the compensation earned by the . . . judge
                 during the pay period, subject to [a] limit provided [in section
                 659.123(b)]; and

                         (2) an additional amount equal to the retirement contribution
                 paid by the employee or judge because of benefit[-Ireplacement     pay
                 provided by this subsection.

Id. $ 659.123(a). In the context of the benefit-replacement pay statutes, the term “compensation”
means “salary or wages subject to tax under the Federal Insurance Contributions Act.” Id. 5
659.121( 1). Section 659.122 of the Government Code provides that benefit-replacement   pay is part
of a state-paid employee’s salary. See id. 5 659.122; Tex. Att’y Gen. LO-97-010, at 5.

         You state that “four of the six current Denton County district court judges” held office on
August 3 1, 1995 and receive from the state an “additional annual sum of $1,026” for social security
and retirement system contributions, or “benefit-replacement pay.“’ Those district judges who took
office after August 3 1,1995, do not receive benefit-replacement pay. A county judge in your county
asserts that each of “Denton County’s seven statutory county court judges [is] entitled to an
additional $1,026 annually, which would make [his or her] annual compensation . . . equal to the
total annual compensation” received by each of the four district judges who receive benefit-
replacement pay, but more than the total compensation received by a Denton County district judge
who does not receive benefit-replacement     pay. Request Letter, supra note 1, at 1.

           As we have noted, section 25.0632(c) requires that a “statutory county court and statutory
probate court Ijudge] shall be paid annual compensation equal to the annual compensation . . . paid
 . . . to a district judge in the county.” TEX. GOV’T CODE ANN. 8 25.0632(c) (Vernon Supp. 2003)
 (emphasis added). The article “a” in the phrase “a district judge” suggests that all of the district
judges receive the same compensation, when, as you have indicated, they do not. We construe the
 statute to require Denton County to pay a statutory county court judge who held office on August
 3 1,1995, the same compensation as that of a district court judge who held office on the same date.
 Such compensation includes benefit-replacement pay. Likewise, a statutory county court judge who
 did not hold office on August 3 1,1995, is also entitled to receive the same compensation as a district
judge who did not hold office on that date. In the latter case, that compensation does not include
benefit-replacement       pay, if payment of such benefit-replacement  pay would result in the statutory
 county judge’s receiving more compensation than a district court judge who took office after August
 3 1,1995. As Denton County Judge Don Windle, a legislative resource witness, explained the 1995
bill that amended section 25.0632(c), the bill included “salary parity provisions . . . that make the
judges’ salary exactly the same as a state district judge at any and all times forever more.” Hearings
 on Tex. S.B. 240 Before the House Comm. On Judicial Aff airs, 74th Leg., R.S. (Mar. 28, 1995)
 (testimony of Denton County Judge Don Windle) (tape available from Senate Staff Services); see
 also Act of May 19, 1995, 74th Leg., R.S., ch. 328, 8 2, sec. 25.0632(c), 1995 Tex. Gen. Laws
 2831,2832.


         ‘Letter from Honorable Bruce Isaacks, Denton County Criminal District Attorney, to Honorable John Comyn,
Texas Attorney General, at 1 (July 8,2002) (on file with Opinion Committee) [hereinafter Request Letter].
The Honorable Bruce Isaacks     - Page 3       (GA-0012)




          In our opinion, the manifest intent of the legislature in enacting section 25.0632(c) was to
equalize the compensation         of similarly situated district and statutory county court judges.
Consistently with the Code Construction Act’s admonition that legislative enactments are intended
to achieve “a just and reasonable result,” TEX. GOV’T CODEANN. 8 3 11.021(3) (Vernon 1998)’ we
conclude that a statutory county court judge in Denton County who held office on August 3 1,1995,
is entitled to receive benefit-replacement    pay. A Denton County statutory county court judge who
did not hold office on that date is not entitled to receive benefit-replacement pay, if payment of such
benefit-replacement     pay would result in the statutory county judge’s receiving more compensation
than a district court judge who took office after August 3 1,1995.
The Honorable Bruce Isaacks - Page 4           (GA-0012)




                                        SUMMARY

                        A statutory county court judge in Denton County who held
               office on August 3 1, 1995, is entitled to receive benefit-replacement
               pay. A Denton County statutory county court judge who did not hold
               office on that date is not entitled to receive benefit-replacement  pay,
               if payment of such benefit-replacement         pay would result in the
               statutory county judge’s receiving more compensation than a district
               court judge in Denton County who assumed office after August 3 1,
               1995.

                                              Very truly yours,




BARRY R. MCBEE
First Assistant Attorney General

NANCY FULLER
Deputy Attorney General - General Counsel

RICK GILPIN
Deputy Chair, Opinion Committee

Rick Gilpin
Assistant Attorney General, Opinion Committee
