     OFFICE OF THE ATTORNEY   GENERAL.   STATE OF TEXAS

     JOHN    CORNYN




                                                November   lo,2000



The Honorable Carole Keeton Rylander                       Opinion No. JC-0305
Comptroller of Public Accounts
P.O. Box 13528                                             Re: Whether the Comptroller must continue to
Austin, Texas 7871 l-3528                                  pay monthly installment payments to a county
                                                           that has stopped, midyear, collecting the fee
                                                           authorized by section 5 1.702 ofthe Government
                                                           Code, and related question (RQ-025 1-X)

Dear Comptroller     Rylander:

         Section 5 1.702 ofthe Government Code authorizes a county to collect designated tiling fees
and court costs to fund salary increases for statutory county court-at-law judges. See TEX. GOV’T
CODE ANN. 5 51.702(a), @), (d) (Vernon Supp. 2000); see also id. $5 25.0005, .0015.            Section
25.0015 of the same code requires the Comptroller annually to pay $35,000 for each of certain
statutory county court judges in the county to a county “that collects the      fees and costs” under
section 51.702 “in equal monthly installments.” See id. 5 25.0015(a), (b). You ask whether the
Comptroller must continue to remit the statutory county court-at-law judge “supplemental salary
funds under Section 5 1.702     to a county     that has discontinued collection of those funds in the
middle of the program year.“’ We understand this inquiry to concern the continued payment of the
equal monthly installment payments required by section 25.0015(b) of the Government Code. We
conclude that the Comptroller may stop remitting these installment payments.

          You then ask whether the Comptroller may transfer the “allocation” of a county that
discontinues participation midyear “to the pool of funds that is available to the other counties that
participate in this program.” Request Letter, note 1, at 3. We understand that this question does not
concern the Comptroller’s       authority to use money horn the county that has discontinued
participation to fund the monthly supplement participating counties receive from the state. Rather,
this question concerns the Comptroller’s duty under section 25.0016 of the Government Code to
distribute to participating counties funds left over at the end of a program year, including any funds
from the county that discontinued participation that were not distributed as monthly supplements.
See TEX. GOV’T CODE ANN. § 25.0016(a) (Vernon Supp. 2000) (providing for end-of-program-year
distribution of excess funds). We conclude that a county that terminated its participation midyear




        ‘Letter from Honorable Car& K&on Rylander, Comptrollerof Public Accounts, to Honorable JohnComyn,
Texas Attorney General at 3 (June21,200O) (on file with opinion Committee) [hereinafkr Request Letter].
The Honorable    Carole Keeton Rylander     - Page 2         (X-0305)




is entitled to a share of any excess funds. The Comptroller may not divide the discontinuing
county’s share among the other counties that participated throughout the program year.

          Section 51.702 and certain sections of chapter 25 of the Government Code establish a
program through which a participating county may supplement statutory county court judges’
salaries. SeeTex. Att’y Gen. Op. Nos. JC-0196 (2000) at 1-2; X-0159 (1999) at 1; X-0158 (1999)
at 1; JC-0157 (1999) at 1; see also Ector County v. Hollmann, 901 S.W.2d 687,689 (Tex. App.-El
Paso 1995, no writ) (stating that county’s participation is voluntary).              To participate, a
commissioners court must authorize the statutory county court clerk to collect special filing fees and
court costs, and by June 1 preceding the July 1 start of the program year the commissioners court
must inform the Comptroller that it has resolved to participate.         See TEX. GOV’T CODE ANN.
$5 1.702(f) (Vernon Supp. 2000). Then, on July 1, the statutory county court clerk in a participating
county begins collecting a $40 filing fee in each civil case in the statutory county court and a court
cost of $15 from each person who is convicted of a criminal offense in a statutory county court,
unless the person is convicted under a law that regulates pedestrians or motor-vehicle parking. See
id. 5 51.702(a), (b). The county continues to participate from program year to program year until
it rescinds its resolution in accordance with the statute. See id. 5 50.702(g), (h).

           A participating county must pay qualified county court-at-law judges the salary required by
 section 25.0005(a) or(e) of the Government Code. Id. § 51.702(k); see Tex. Att’y Gen. Op. Nos.
 JC-0196 (2000) at 1; JC-0159 (1999) at 1, JC-0158 (1999) at 1; Tex. Att’y Gen. LO-94.048, at 3.
 To receive a state contribution toward the higher salaries, the clerk remits the fees and costs that are
 collected under section 51.702(a) and (b) to the Comptroller for deposit in the state treasury’s
judicial fund. See TEX. GOV’T CODE ANN. 5 5 1.702(d) (Vernon Supp. 2000); Tex. Att’y Gen. Op.
No. JC-0196 (2000) at 1. In return, a participating county receives two kinds of payments from the
 state beginning on September 1: aregular monthly payment and a year-end percentage ofany excess
 left in the fund. First, section 25.0015 of the Government Code requires the state annually to send
to a participating county $35,00%$30,000          from the judicial fund and $5,000 from the general
revenue fund-for         each statutory county court judge in the county who does not engage in the
private practice of law and who meets other statutory qualifications. See TEX. GOV’T CODE ANN.
 5 25.0015 (Vernon Supp. 2000). The amount is paid “to the county’s salary fund in equal monthly
installments.” Id. 3 25.0015(b). Second, section 25.0016 of the Government Code requires the
Comptroller, at the end of the state’s fiscal year, to divide any money remaining in the judicial fund
among participating counties:

                         (a)~At the end of each state fiscal year the comptroller shall
                determine the amounts deposited in the judicial fund under Section
                51.702 and the amounts paid to the counties under Section 25.0015.
                If the total amount paid under Section 5 1.702 by all counties exceeds
                the total amount paid to counties under Section 25.0015, the state
                shall remit the excess to the counties proportionately based on the
                percentage of the total paid by each county.
The Honorable Carole Keeton Rylander       - Page 3        (JC-0305)




                        (b) The amounts remitted under Subsection (a) shall be paid
                to the county’s general fund to be used only for court-related
                purposes for the support of the judiciary.

Id. 5 25.0016(a), (b),

         Your inquiries stem from Dallas County’s mid-program-year           withdrawal from the
supplemental salary program authorized by sections 25.0015 and 5 1.702 of the Government Code.
See Request Letter, supra note 1, at l-2. Dallas County joined the program in accordance with the
statute in 1992 and participated until October 1999. See id. On October 5, 1999, “[tlhe Dallas
County Commissioners[] Court adopted an order. . to discontinue the assessment and collection
of fees under section 51.702 of the [Government] Code in that county, effective October 1, 1999.”
Id. at 2. You have been informed that Dallas County will not resume collecting court costs and fees
under section 51.702, although this office recently opined that a participating county may not
withdraw in the midst of a program year. Id.; see Tex. Att’y Gen. Op. No. JC-0196 (2000) at 3
(concluding that county could not withdraw from program midyear). You further understand that
should you remit any payments under section25.0015, Government Code, Dallas County will return
the payments “‘without endorsement.“’ Request Letter, supra note 1, at 2.

         We conclude, in answer to your first question, that the Comptroller need not continue to
remit monthly installment payments to a county that has stopped collecting the tiling fees and court
costs in the midst of a program year. See Request Letter, supra note 1, at 3. Neither section 5 1.702
nor section 25.0015 expressly contemplates that a county will participate in the program for only part
of a program year. Indeed, Attorney General Opinion JC-0196 concludes that section 5 1.702 of the
Government Code does not permit a participating county to withdraw from the salary supplement
program during a program year: “A commissioners court may not withdraw in the middle of the
program year         It may rescind its resolution authorizing participation in the program only with
respect to a future program year.” Tex. Att’y Gen. Op. No. JC-0196 (2000) at 3. Consequently, we
resolve the issue without the benefit of express guidance from the legislature.

         While the state’s contribution is annual and paid in “equal monthly installments,” see TEX.
GOV’T CODE     ANN. 9 25.0015(b) (Vernon Supp. 2000), section 25.0015 appears to intend that a
county will receive a contribution from the state only if it pays into the program. Section 25.0015
requires the state annually to compensate only a county “that collects the additional fees and costs”
under section 51.702. See id. § 25.0015(a). Further, the state’s monthly installment payment
correlates to the county’s collection of the additional fees and costs and remittance to the
Comptroller.      Although a participating county starts collecting the special fees and costs
under section 5 1.702 in July, it receives no contribution from the state until September 1. See id.
5 25,0015(a) (noting “first day of the state fiscal year” as beginning date for annual compensation
of county court judges). Section 5 1.702(i) similarly specifies that a county that begins collecting
The Honorable    Carole Keeton Rylander     - Page 4        (X-0305)




fees and costs in the midst of the program year may not receive a contribution    from the state earlier
than sixty days after the county begins collecting:

                        A county that is not eligible to participate under Subsection
                (f) on July 1 of a year but is eligible to participate later in the year
                may submit a resolution meeting the requirements of Subsection (f)
                to the comptroller.     The comptroller shall determine the date the
                county may begin to collect fees and costs under this section. A
                county that begins to collect fees and costs under this section after
                July 1 is not eligible for a payment by the comptroller under Section
                25.0015 until the 60th day after the date the comptroller determines
                the county may begin to collect fees and costs under this section.

Id. 3 5 1.702(i). From this we conclude that when a county stops collecting the additional tiling fees
and court costs midyear, the Comptroller has no further duty to remit monthly installments under
section 25.0015. See id. 3 25.0015.

        Given our conclusion that the Comptroller need not remit monthly installments to a county
that stops participating in the midst of a program year, you ask whether the funds that would
otherwise have gone to that county as monthly supplements may be included in the judicial fund and
divided among the remaining participating counties at the end of the state fiscal year under section
25.0016 of the Government Code. Although a court recently questioned whether this “manner of
funding an increase in judicial salaries” may “inadvertently run afoul of the constitution,” see
Ryfander v. Caldwell, 23 S.W.3d 132, 138 (Tex. App.-Austin 2000, no pet.), we will respond to
your question.

        You do not ask whether the contributions of a county that discontinues participation midyear
may be used to fund other counties’ monthly allotments under section 25.0015 of the Government
Code. Rather, you ask only whether, should there be any money left in the fund at the end of the
program year, the county that terminated its participation midyear is entitled to a share of the excess
monies.

          We conclude that, because the county that stops participating midyear contributed a
percentage of the excess funds, it is entitled to receive a corresponding percentage of any excess.
Under section 25.0016 of the Government Code, “the state shall remit the excess to the counties
proportionately based on the percentage of the total paid by each county.” TEX. GOV’T CODE ANN.
 5 25.0016(a) (Vernon Supp. 2000). Thus, each county that participated during the state fiscal year
is entitled to a share of any money left over at the end of that fiscal year, and the entitlement is not
contingent upon the county’s participation at the time the Comptroller distributes the excess funds.
Accordingly, the Comptroller must, under section 25.0016, remit the appropriate portion of the
 excess funds to a county that discontinues participation midyear. The money must be deposited into
the county’s general fund “to be used only for court-related purposes for the support of the
judiciary.” Id. § 25.0016(b).
The Honorable    Carole Keeton Rylander     - Page 5        (X-0305)




        Section 51.702(k) of the Government Code does not suggest that all of the money collected
by a county that discontinues participation midyear must be distributed to participating counties in
the form ofmonthly contributions under section 25.0015. Section 51.702(k) directs the disposition
of money collected under that section by a county after it stops participating in the program:

                         Money collected under this section after a county ceases to
                participate in the collection of additional fees and costs under this
                section shall be remitted to the comptroller.     The money shall be
                deposited in the judicial fund and shall be distributed to counties
                currently participating under this section in the manner described in
                Section 25.0005.

Id. $51.702(k). First, while section 25.0005 ofthe Government Codeto          which section 51.702(k)
refers-pertains   to county court-at-law judges’ salaries, it does not provide a system of distributing
money from the judicial fund. See id. 5 25.0005. Consequently, we question section 51.702(k)‘s
reference to section 25.0005. Cj: id. § 25.0015 (providing for state contribution to counties
participating in program). Second, because of its reference to counties “currently participating” in
the program, we understand section 5 1.702(k) to govern the use of money collected by a no-longer-
participating county for the monthly contributions that the state pays under section 25.0015 of the
Government Code, not to the distribution ofexcess funds under section 25.0016. See id. $5 25.0015,
51.702(k).

         Your letter indicates that Dallas County will refuse monthly payments only under section
25.0015, not a portion of any excess funds under section 25.0016. See Request Letter, supra note
1, at 2. We assume, therefore, that the county will not refuse the portion to which it is entitled under
section 25.0016.
The Honorable   Carole Keeton Rylander     - Page 6        (X-0305)




                                        SUMMARY

                         The Comptroller has no duty to remit monthly allotments of
                statutory county court-at-law supplemental salary funds to a county
                that discontinues, in the middle of a program year, collecting the
                filing fees and court costs authorized by section 51.702 of the
                Government      Code.   See TEX. GOV’T CODE ANN. $5 25.0015,
                5 1.702(a), (b) (Vernon Supp. 2000).

                         Under section 25.0016 ofthe Government Code, each county
                that participated in the program under section 5 1.702 during the state
                fiscal year is entitled to a share of any money left over at the end of
                that fiscal year. See id. 8 25.0016(a). The Comptroller must remit the
                appropriate portion of the excess funds to a county that discontinues
                participation midyear. See id. 9 25.0016(b).




                                               JOkN     CORNYN
                                               Attorney General of Texas



ANDY TAYLOR
First Assistant Attorney General

CLARK KENT ERVIN
Deputy Attorney General - General Counsel

SUSAN D. GUSKY
Chair, Opinion Committee

Kymberly K. Oltrogge
Assistant Attorney General - Opinion Committee
