                                               KEN PAXTON
                                          ATTORNEY GENERAL OF TEXAS




                                              February 15, 2018



The Honorable James Caleb Henson                              Opinion No. KP-0180
Leon County Attorney
Post Office Box 429                                           Re: Whether a county comm1ss10ners
Centerville, Texas 75833                                      court may deny a county judge longevity pay
                                                              due to receipt of a State salary supplement
                                                              pursuant to section 26.006 of the
                                                              Government Code (RQ-0173-KP)

Dear Mr. Henson:

       You inform us that the Leon County personnel policy provides for longevity pay to full-
time county officers and employees who are not paid by grants and whose total salary is paid by ,
the county. 1 You further state that the longevity pay policy excludes those who "receive a salary
supplemented by the State," effectively excluding the county judge. Request Letter at 1. You ask
whether a county commissioners court may adopt a longevity pay policy for county officers and
employees that excludes the county judge expressly because the judge receives a State judicial
supplement. Id.

        The commissioners court is the county's principal governing body, exercising "aspects of
legislative, executive, administrative, and judicial functions." Henry v. Cox, 520 S.W.3d 28, 36
(Tex. 2017). The commissioners court exercises a core legislative function when it makes the·
county's budget. Id. at 36. In doing so, the commissioners court must establish county
compensation for its employees and officers. TEX. Loe. Gov'T CODE § 152.011. The
commissioners court's· authority to set compensation under Local Government Code section
152.011 includes the authority to pay longevity pay. See Tex. Att'y Gen. Op. Nos. KP-0135 (2017)
at 2 (observing that compensation under section 152.011 of the .Local Government Code can
include longevity pay); KP-0060 (2016) at 2 (recognizing the commissioners court's discretion to
prov~de longevity pay to an officer). 2 The commissioners court has discretion to decide the
compensation of its employees and officers in light of their individual responsibilities. See
Canales v. Laughlin, 214 S.W.2d 451, 453 (Tex. 1948) (stating that a commissioners court has
         1
           See Letter from Honorable James Caleb Henson, Leon Cty. Att'y, to Honorable Ken Paxton, Tex. Att'y
Gen. at I (Aug. I 7, 20 I 7), https://www.texasattomeygeneral.gov/opinion/requests-for-opinions-rqs ("Request
Letter"); see also Leon County Policy on Longevity Pay 4.03 (on file with the Op. Comm.).        ·
          2
            Longevity pay is an incremental increase in salary generally based on length of service. Tex. Att'y Gen.
LO-96-007, at 2. It "is not merely a benefit, but is an element of salary." Tex. Att'y Gen. Op. No. JC-0438 (2001)
at 2; see also TEX. Gov'T CODE§§ 403.055(/)(1) (defining "compensation" as including salary and longevity pay for
certain purposes); 659.0445(a}-(b) (longevity pay for certain State-paid judges after 16 years of service).
The Honorable James Caleb Henson - Page 2          (KP-0180)



broad discretion in exercising express powers); Tex. Att'y Gen. Op. Nos. GA-0857 (2011) at 3
(recognizing the commissioners court's broad discretion with respect to compensation and the
county budget), JC-0026 (1999) at 1 (determining that county may pay longevity pay to its sheriff
at a different level than that paid other elected officials), H-1161 ( 1978) at 2 (determining that the
comm1ss10ners court had discretion to pay county law enforcement officers different
compensation).

        A county judge has two distinct constitutional functions. First, the county judge is the
presiding member of the commissioners court, the legislative body of the county with "jurisdiction
over all county business." TEX. CONST. art. V, § 18(b). Second, the county judge presides over
the constitutional county court, performing judicial functions as the Legislature provides. Id. art.
V, §§ 15, 16. The extent of judicial services required of the constitutional county court varies by
county. See TEX. Gov'T CODE§§ 26.041, .103-.353. Section 26.006 of the Government Code
provides for an annual salary supplement to county judges who perform substantial judicial
functions:

                   (a) A county judge is entitled to an annual salary supplement
                       from the state in an amount equal to 18 percent of the annual
                       compensation provided for a district judge in the General
                       Appropriations Act if at least 40 percent of the functions that
                       the judge performs are judicial functions.



                   (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 ....

Id. § 26.006(a), (c). The supplement in subsection 26.006(a) compensates county judges for
performing the requisite amount of judicial functions in addition to their commissioners court
duties. See id. § 26.006(a). Subsection 26.006(c) prohibits a county from effectively denying the
salary increase from the State component by reducing the county component-"the county funds
provided for the salary or office of the county judge." Id. § 26.006(c). Subsection 26.006(c)
manifestly requires that the recipient of a State supplement-not the county-receive the full
effective benefit of the State supplement. See id.; see also Tex. Att'y Gen. Op. No. JC-0397 (2001)
at 2, 4-5 (determining that a county may not pay its share of employment taxes from a county
judge's State salary supplement); TEX. Gov'T CODE § 41.255( a)-(b) (analogous statute requiring
a county to pay a longevity pay supplement to assistant prosecutors and providing that the county
may not "reduce the salary of the assistant prosecutor to offset the longevity pay supplement").
So long as a county honors that legislative directive, subsection 26.006( c) does not limit the
county's discretion to determine the salary it will pay its officers and employees, including the
county judge. Thus, if a county has never paid or agreed to pay longevity pay to the county judge,
paying other officers and employees longevity pay does not "reduce the county funds provided"
for the county judge. TEX. Gov'T CODE § 26.006( c). Moreover, provided the county has not
The Honorable James Caleb Henson - Page 3       (KP-0180)



reduced the county funds that make up the county component of the judge's salary, its reasons for
not including the county judge in the longevity pay policy are immaterial for purposes of
subsection 26.006(c). Accordingly, subsection 26.006(c) of the Government Code does not
preclude a longevity pay policy that excludes the county judge, provided the policy does not
effectively reduce the county judge's salary to offset the county judge's State salary supplement.
The Honorable James Caleb Henson - Page 4       (KP-0180)



                                     SUMMARY

                      Subsection 26.006(c) of the Government Code does not
              preclude a county policy that excludes a county judge who receives
              a State salary supplement from receiving longevity pay paid to other
              officers and employees, provided the policy does not effectively
              reduce the county judge's salary to offset the county judge's State
              salary supplement.

                                            Very truly yours,




                                            KEN PAXTON
                                            Attorney General of Texas



JEFFREY C. MATEER
First Assistant Attorney General

BRANTLEY STARR
Deputy First Assistant Attorney General

VIRGINIA K. HOELSCHER
Chair, Opinion Committee

WILLIAM A. HILL
Assistant Attorney General, Opinion Committee
