             THE        ATITORNEY                   GENERAL
                              OF      TEXAS




The Honorable Robert S. Calvert                     Opinion No.   H-12 3
Comptroller    of Public Accounts
State Finance Building                              Re:   Supplementation     of salaries
Austin,  Texas                                            of district court judges and
                                                          justices   of the Courts of
                                                          Civil Appeals under House
                                                          Bill 139, 63rd Legislature,
                                                          the General Appropriations
Dear   Mr.   Calvert:                                     Bill

    You have requested our answers to a series of questions concerning
the Judiciary Article of House Bill 139 of the 63rd Legislature,      the General
Appropriations   Bill for fiscal 1974-1975.    The questions involve the maxi-
mum rates of compensation       of district court judges and justices  of the
courts of civil appeals,

    The Constitution,   in Article   5, $ $ 2, 6 and 7, generally authorizes
the Legislature  to fix the salaries   of judges of the Supreme Court, the
courts of civil appeals and the district courts.

     Article 6819, Vernon’s     Texas Civil Statutes,     derived from laws in
effect prior to the 1925 codification,      set the salaries    of those jurists,at
$6,506,    $5,000   and $4,000,   respectively.     While neither has ever been
expressly     repealed,  Article 6819 with Article     6813, -which sets the annual
salaries    of numerous other state officers      at’sums    ranging from $1,250 for
members      of the Live Stock Sanitary Commission         to $6, 000 for the Banking
Commissioner       (the Governor was to get only $4, 000). ,was impliedly           repealed
by the enactment of Article      6813b, V. T. C. S. , and other similar acts dating
back to 1933.

    Article 6813b provides thsrt all salaries   of all state officers  and
employees   will be set by the biennial appropriations     bill.  “All laws and
parts of laws fixing the salaries  of all state officers   and employees    . . .
are hereby specifically   suspended insofar as they are in conflict with this
Act . . . . ”




                                         p.   593
The Honorable    Robert    S.   Calvert,    page 2(H-123)




     Article 6819a-18a provides that commissioners       courts in counties
comprising    each of the fourteen supreme judicial districts    may supple-
ment the salaries    of the justices of the courts of civil appeals residing
in that district up to $8, 000 per year but not to exceed “the total add-
itional compensation     authorized to be paid to a2 District Judge residing
within such affected Supreme Judicial District. ”

    Various other subdivisions     of Article 6819a provide for the supple-
mentation of the salaries   of district court judges by county commissioners
courts within their districts  for varying amounts and for varying purposes.

    For example,    Article 6819a-22,  V. T. C. S., applicable to Travis County,
authorizes  its commissioners    court to pay the district judges or the districts
within the county “a reasonable    sum not to exceed Six Thousand Dollars”
“for services   rendered to Travis County, and for performing     administrative
duties. ”

    Supplements  are authorized as high a~8 $12,000             per annum.     Articles
6819a-19b and 6819a-25a,  V. T. C. S.

    House Bill 139 app<ropriates,   as annual         salaries,   $40, 500 for Chief
Justice of the Supreme Court, $40, 000 for            each associate    justice of that
court, $35, 500 for the chief justice of each          court of civil appeals,   $35,000
for each as’sociate justice of those courts ,         and $25,000    for each judge of
each district court.

    It then provides,     as $ 2 of the Judiciary     Article   (p.   I-17):

             “Sec. 2. Salary Differential   for District Court Judges
        and Judges of Courts of Civil Appeals.       District Court Judges
        may receive a combined yearly salary rate from state and
        county sources which is one thousand dollars ($1,000)       less
        than the combined yearly salary rate from state and county
        sources received by Judges of the Courts of Civil Appeals’
        in whose district the District Court is located.      Judges of
        the Courts of Civil Appeals may receive a combined yearly
        salary rate from state and county sources which is one
        thousand dollars ($1,000)   less than the yearly salary pro-
        vided in this Act for an Associate/   Justice of the Supreme
        Court and the Court of Criminal Appeals.




                                           p.   594
 The Honorable   Robert   S.   Calvert,        page 3 (H-123)




             “In order that the differential  set out above be maintained,
        each District Court Judge and Judge of the Courts of Civil
        Appeals shall file a sworn statement with the Comptroller          of
        Public Accounts    setting forth the yearly amounts to be received
        from state and county as salary payments during then ensuing
        fiscal year.   Amended statements      shall be filed setting forth
        any change in the salary rate which occurs         during a fiscal
        year.

             “For the purpose of salary payments by the state, the
        Comptroller    of Public Accounts   shall determine from the
        filed statements   that the required salary differential  set
        out above is maintaine’d.    In the event a salary is in excess
        of the one thousand dollar ($1, 000) differential,  the Comp-
        troller is directed to reduce the state’s portion of that salary
        by the amount of excess.

             “The appropriations for salaries   of. District Court
        Judges and Judges of Courts of Civil Appeals are made
        contingent upon strict compliance   with the ‘provisions  of
        this section and the Comptroller   shall have ‘no authority
        to issue a warrant for salaries  which violate these pro-
        visions. ”

      The foregoing statutory provisions (including those of the Appropria-
.tions Act) lead to some general observations    which will help in answering
 your questions:

    1. There is no statutory provision for supplementing    the State
salaries of Supreme Court justices with m       funds.    Therefore,   the
maximum    salaries of Supreme Court associate  justices, is that fixed in
the Appropriations  Bill - $40,000.

     2. Justices of the courts of civil appeals may receive no more than
$39,000  from state and county sources.     Any county supplement which
results in a larger total salary than $39, 000 would result in a corresponding
reduction in the amount appropriated    out of ,state funds.




                                          p.   595
The Honorable     Robert    S.   Calvert,        page 4 (H-123)




     3. The salaries  payable to justices   of courts of civil appeals are
further limited by Article  6819a, V. T. C. S., not to exceed the supplement
authorized to be received by w      district judge within their district.  We
construe this to mean the highest supplement authorized to be received
by any district judge in the district.

    4.   Even though authorized to receive a greater supplement from the
counties comprising   his district, a district judge may receive no more
from combined state and county sources than $1,000 less than is received
from thosecombined    sources by a justice of the court of civil appeals of
the supreme judicial district or districts    in which the district court is
located;

    Your first   question    asks:

            “Which of the rates of salary appropriated     to
        the Court of Civil Appeals would be used in [ com-
        puting the maximum    salary of a district judge],
        the $35,000  for the two judges,  or the $35,500
        rate for the Chief Justice of the Court of Civil
        Appeals? ”

    The formula established   by the Appropriations   Bill has,a theme of
insuring that membership    on an appellat’e court will result in compensation
of at least $1,000 more than the salary provided a judge on a lower court
in the judicial hierarchy.

     It is our opinion that the salary of an associate        justice of the approp-
riate court of civil appeals,     including any supplementation,          is the relevant
benchmark against which the supplementation            of the salary of a district
judge is to be measured      in order to accomplish      the apparent object and
policy of the Legislature     adopting the salary differentials.          Counts v.
hiitchell,   38 S. W. 2d 770 (Tex. 1931).     Therefore,    ,in ansv.e r to your first
question, the salary of a judge of a district court located in the district of
a court of civil appeals whose justices       receive no salary supplementation
from counties may not be more than $34, 000 per year.                If the district court
is located in the district of a court of civil appeals whose justices            receive
a salary supplement from counties,         the maximum .salary for the district
judge would be $1, 000 less,than      the combined yearly salary received from
state and county sources by the associate        justices of the court of civil
appeals in that district.



                                            p.   596
The Honorable       Robert   S.   Calvert.   page        5 (H-123)




    Your   second    and third questions          ask:

        “Section 2 also reads in part, ’ . . . Judges of the Courts
        of Civil Appeals may receive a combined yearly salary rate
        from State and County sources vh ich is one, thousand dollars
        (1,000) less than the yearly salary pr.ovided in this Act for an
        Associate   Justice of the Supreme Court and the Court of
        Criminal Appeals . . . ’

             “2.   Would the Chief Justice of a Court of Civil Appeals
        be .limited in salary by this provision?

            “3.~ If your answer to Question 2                 is in the affirmative,
        would the Chief Justice be limited to                 a combined salary
        not to exceed $1, 000 less than $40,000                 for Associate
        Justices of the Supreme Court or not                  to exceed $1,000
        less than $40, 500 which is the salary                 of the Chief Justice
        of the Supreme Court? ”

     The language of the Appropriations     Bill refers to “Judges ,of the
Courts of Civil Appeals”.      Throughout the Judiciary Article,    the term
“judges” is used generically     and should be construed to include chief
justices -of the courts of civil appeals as well as associate   justices.   To
exclude chief justices    from the group of judges Df the courts of civil appeals
would result in an omission     of any mention of chief justices from the salary
supplementation    section of the Bill, a result which would ‘be illogical and
clearly contrary to legislative    intent. A statute will not be construed in
such a way as to produce an absurd result.        Oriental Hotel Co. v. Griffiths,
33 S. W. 652 (Tex. 1895).

    It is our opinion that all judges of the courts ,of civil appeals,  including
chief justices as well as associate   justices, are limited to a salary not to
exceed $1, 000 less than the yearly salary of an associate     justice of the
Supreme Court.      See Attorney General Letter Advisory      No. 26 (1973).

    Your fourth      and fifth questions      ask:




                                             p.    597
The Honorable   Robert    S.     Calvert,        page 6 ( H-123 )




       “4.   Brazos  County composes   the 85th Judicial District
       alone and is in the 10th Court of Civil Appeals as well
       as the 1st and 14th Courts of Civil Appeals.    Could the
       District Judge of the 85th Judicial District choose which
       Court of Civil Appeals he is under for the salary limit-
       ation?

       “5.  District  Court No. 1 is composed of Jasper,    Newton,
       Sabine, and San Augustine counties.     Newton and Jasper
       counties are in the 9th Court of Civil Appeals,   and Sabine
       and San Augustine Counties are in the 12th Court of Civil
       Appeals.    Would the district Judge be limited to the
       supplemental   pay from the counties,  [ i]f any, as that paid
       by the counties of the 9th Court of Civil Appeals or that
       paid by the counties of the 12th Court of Civil Appeals?
       Would the county of residence   of the District Judge have
       a bearing on this question?”

    The Bill requires a district judge’s salary to be $1, 000 less than “the
combined yearly salary rate from state and county s~ources received by Judges
of the Courts of Civil Appeals    in whose district the District    Court is located”
and the fourth paragraph of $ 2 calls for strict compliance      with the provi-
sions of the section.   One apparent purpose of the statutory scheme is to
insure that no district judge receives   a greater salary than a justice of
a court of civil appeals embracing    the same district.   A district judge’s
salary from all sources must, therefore,      be measured    against the lowest
salary of any justice of any court of civil appeals whose jurisdiction      includes
that district.   The judge of the 85th Judicial District may receive a salary
which is not more than $1, 000 less than the lowest salary of .a justice of
the courts of civil appeals for the lst, 10th or 14th districts.     The judge of
the First Judicial District is limited to a salary measured      against the slowest
salary paid to any justice of either of the courts of civil appeals for the 9th
orl2th districts.

    Your final question    is:

       “6.  In certain Courts of Civil Appeals only one c,ounty
       supplements    the salaries  of the Judges of said courts,
       would this supplementation      regulate the salary to be.
       paid to aDistrict   Judge whose district is in the Civil
       Judicial District,   but whose county or counties do not
       supplement the salaries     of the .Civil Appeals Judges?”


                                            p.    598
The Honorable    Robert   S. ~Calvert,        page 7 (H-123)




     The Act does not require that a particular       county supplement the
salaries   of justices  of a court of civil appeals before it may supplement
the salary of a district judge.      The only requirements     are that, the dist-
rict. judge’s salary be at least $1,000 less than the lowest salary of a
member of any court of civil appeals in whose district the district court
is wholly or partially located and that the total salary supplement paid ,a,
justice of a court of civil appeals not exceed the total additional compen-
sation authorized to be paid to any district judge residing in the affected
supreme judicial district.      Article 6819a-18a,    V. T. C. S. Provided.the
Legislature    has authorized supplementation      of the salary of the judge of
a particular   district court, it may be supplemented       regardless    of whether
the county also contributes     to supplement the salaries     of justices.of  the
court of civil appeals.

     In connection   with your request,    District Attorney Robert 0. Smith
of Travis County has asked “whether or not compensation          received as a
member of the Travis County Juvenile Board is properly          included in the
total amount paid the District Judges in Travis County for the purpose of
determining their entitlement to an increase        under the General Appropria-
tions Bill of the 63rd Legislature?     ‘I Section 2 of Article 5139KK, V. T. C. S.,
applicable to Travis County, creates a County Juvenile Board.composed            of
the county judge and the judges of the civil and criminal district courts of
the county.    It provides in 0 2:

             “As compensation      for the added duties imposed
        upon the members       of the Juvenile Board,    each member
        thereof shall receive the sum of Forty-eight        Hundred
        Dollars ($4, 800.00)     annually,  to be paid in equal monthly
        installments   out of the general fund of said county.      Such
        compensation     shall be for all judicial and administrative
        services   thereafter   to be assigned to them as members
        of the Juvenile Board,      and shall be in addition to all,other
        compensation    allowed or hereafter     to be allowed by law
        for County Judges and District Judges. I’ (Emphasis          added)

    A district judge is not “entitled” to. salary supplementation      by a county
under the terms of the General Appropriations         Bill, although other statutes
may require a county to provide additional compensation.           The General
Appropriations     Bill merely establishes   a ceiling for the “combined yearly
salary rate from state and county sources”        which a district judge may
receive.   Article    5139KK, $ 2, V. T. C. S., provides that the $4,800    is



                                         p.    599
The Honorable    Robert   S.   Calvert,        page 8 (H-123)




compensation    for added duties required of members    of the Juvenile Board
and is “in addition to all other compensation   allowed or hereafter to be
allowed by law for . . . District Judges. ” In our’ opinion, however,     it is
for services   rendered as a judge.   See Jones v. Alexander,    59 S. W. 2d
1080 (Tex. 1933).    To permit judges to hold two offices,  for each of which
they were compensated,     would run counter to 5 $ 33 and 40 of Article 16
of the Constitution of Texas.

     We are of the opinion, therefore,     that the additional $4, 800. 00 paid to
district judges of Travis County for service Dn the Juvenile Board is a
part of their “combined yearly salary rate from state and county sources”
and enters< into the determination     of the amount of salary they may receive
from the State under the General Appropriations        Bill.   If the ,justices of
the court of civil appeals for the Third Supreme Judicial District,           which
embraces Travis County, receive $39,000          per annum, then the district
judges may receive the $4, 800 required by Article        5139KK, and the full
$6,000 authorized by Article 6819a-22       or a total of $35, 800 including the
State appropriation.   If the justices  of that court of civil appeals receive
less than a total of $36,800,   then the district judges of Travis County will
be limited in the amount their salaries      may be supplemented.        Compare
Attorney General Opinion H-96 (1973).

                               SUMMARY

            Chief justices and associate     justices  of courts
        of civil appeals receive from the State as ,their salary
        $35, 500 and $35, 000, respectively,       In addition, their
        salaries   may be supplemented     by the counties in their,
        respective   districts by no more than $8,000       limited
        by the provision    that the combined salary may not
        exceed $39, 000 and the ,added provision      that the supple-
        mental pay may not exceed that authorized to be.paid
        for s    district judge residing within the district.




                                          p.    600
 The Honorable   Robert   S.   Calvert,        page 9(H-123)




            The state salary paid to district judges is $25, 000
       per year.    Their salaries   may be supplemented    by the
       counties comprising     their districts as provided in the
       various statutes applicable to different districts.    In
       any event, the combined salary from all state and county
       sources must be at least $1, 000 less than the salary of
       any associate   justice of a court of civil appeals whose
       district encompasses     the district court.

                                                Very   truly yours,




                                                JOHN L. HILL
                                                Attorney General      of Texas

APTROVED:




 DAVID M. KENDALL,        Chairman
 Opinion Committee




                                          p.   601
