                                ATTORNEY GENERAL OF TEXAS
                                             GREG        ABBOTT




                                              September     lo,2003



The Honorable Mike Stafford                               Opinion No. GA-0099
Harris County Attorney
1019 Congress, 15th Floor                                 Re: Whether, if the Harris, Tar-rant, or Travis
Houston, Texas 77002- 1700                                 County commissioners court elect to increase
                                                          district judges’ county salaries under section
The Honorable Tim Curry                                    32.101, 32.220, or 32.227 of the Government
Tar-rant County Criminal District Attorney                 Code, the state comptroller must reduce the
401 West Belknap                                          judges’ state salaries under section 659.012 of
Fort Worth, Texas 76196-0201                              the Government Code (RQ-0079-GA)

Ms. Susan A. Spataro, C.P.A., C.M.A.
Travis County Auditor
Post Office Box 1748
Austin, Texas 78767


Dear Mr. Stafford, Mr. Curry, and Ms. Spataro:

         You ask about the county salaries that may be paid to district judges in your counties. Mr.
Stafford asks whether, if the Harris County Commissioners Court elects to increase district judges’
county salaries under section 32.101 of the Government Code, as amended by Act of May 6,2003,
78th Leg., R.S., ch. 100, § 1, 2003 Tex. Sess. Law Serv. 138, 138, section 659.012 of the
Government Code requires the state comptroller to reduce the judges’ state salaries.’ Mr. Curry
similarly asks whether the comptroller must reduce Tan-ant County district judges’ state salaries if
the Tar-rant County Commissioners Court increases the judges’ county salaries under section 32.220
of the Government Code, as amended by Act of May 5,2003,78th Leg., R.S., ch. 62,§ 3,2003 Tex.
Sess. Law Serv. 95, 96.* And Ms. Spataro asks about Travis County district judges’ state salaries
should the Travis County Commissioners Court increase the judges’ county salaries under section




         ‘See Letter from Honorable Mike Stafford, Harris County Attorney, to Honorable Greg Abbott, Texas Attorney
General (July 16,2003) ( on f 11e with Opinion Committee) [hereinafter Harris County Request Letter].

         *See Letter from Honorable Tim Curry, Tar-rant County Criminal District Attorney, to Honorable Greg Abbott,
Texas Attorney General (Aug. l&2003) (on file with Opinion Committee) [hereinafter Tar-rant County Request Letter].
The Honorable Mike Stafford - Page 2                                (GA-0099)
The Honorable Tim Curry
Ms. Susan A. Spataro, C.P.A., C.M.A.



32.227 of the Government Code, as amended by Act of May 23,2003,78th                                   Leg., R.S., ch. 675, 5
3,2003 Tex. Sess. Law Serv. 2096, 2096.3

I.         Relevant law

           A.       Section 659.012, Government                   Code

                Section 659.012(a)(4) of the Government Code provides generally for district court
judges to receive salaries from both the state and the county:

                   Notwithstanding Section 659.011 [which requires the biennial appropriations
           act to specify the amounts of all state officers’ and employees’ salaries]:

                              . . .


                             (4) a judge of a district court is entitled to an annual salary
                    from the state that is 10 percent less than the salary provided in the
                    General Appropriations Act for a justice of the supreme court, except
                    that unless otherwise provided by law, the combined salary of a
                    district judge from state and county sources may not exceed the
                    amount that is $2,000 less than the salary provided for a justice of the
                    supreme court.

TEX. GOV’T CODE ANN. 8 659.012(a)(4)         (V emon Supp. 2003). Subsection (b) expressly provides
for a contingency in the event section 659.001 conflicts with Government Code chapter 32: “To the
extent of any conflict, the salary differential provided by this section for the combined salary of a
district judge prevails over any differential set by Chapter 32.” Id. 5 659.012(b). Subsection (e)
limits the district judges’ state salaries: “If a salary combined with a county supplement would be
in excess of the differential provided by this section, the comptroller shall reduce the state salary by
the amount of the excess.” Id. 0 659.012(e).

        Mr. Stafford asserts that the General Appropriations Act effective September 1, 2003, in
accordance with section 659.012, sets the salary for a supreme court justice at $113,000 for the state
fiscal years ending August 3 1,2004 and August 3 1,2005 .4 See also General Appropriations Act,
78th Leg., R.S., H.B. 1, art. IV (The Judiciary, Supreme Court of Texas )? Under section
659.012(a)(4), he continues, “the state contribution to a district judge’s salary, if not reduced


         3See Letter from Susan A. Spataro, C.P.A., C.M.A., Travis County Auditor, to Honorable Greg Abbott, Texas
Attorney General (Aug. 5,2003) (on file with Opinion Committee) [hereinafter Travis County Request Letter].

           4See Brief from Harris County Attorney’s      Office, to Opinion Committee, Office of Attorney General, at 3 (July
16,2003)    (on file with Opinion     Committee)   [hereinafter   Harris County Attorney’s   Brief).

           ‘Available at www.lbb.state.tx.us/The_LBB/Access/AppBills_LBEs.htm.
The Honorable Mike Stafford - Page 3                      (GA-0099)
The Honorable Tim Curry
Ms. Susan A. Spataro, C.P.A., C.M.A.


pursuant to subsection (e) would” equal ninety percent of that amount, or $101,700.                Harris County
Attorney’s Brief, supra note 4, at 3.

        B.       Chapter 32, Government           Code

                Chapter 32 ofthe Governrnent Code, which specifically authorizes particular counties
to pay supplemental county salaries to district judges in those counties, was adopted in accordance
with the legislature’s duty to provide for the judicial system under article V of the Texas
Constitution. See TEX. CONST.art. V; Harris Countyv. Croaker, 248 S.W. 652,654-55 (Tex. 1923);
Tom Green County v. Proffitt, 195 S.W.2d 845,847 (Tex. Civ. App.-Austin 1946, no writ); Garvey
v. Matthews, 79 S.W.2d 335,336 (Tex. Civ. App.-San Antonio 1935, writ ref’d). The legislature’s
power “to fix the salary of [a] judge . . . is an incident to the power to create the court, and rests upon
the same constitutional authority.” Garvey, 79 S. W.2d at 336.

         Section 32.101 provides expressly for Harris County district judges. Under the version of
section 32.101 in effect prior to September 1, Harris County may have paid district judges, as a
supplement to their state-paid salaries, “an annual salary of not less than $12,000 nor more than
$25,000 for judicial and administrative services.“6 Prior to September 1, section 32.220, applying
specifically to Tar-rant County, authorized the Tarrant County Commissioners Court to pay district
court judges “an annual salary of $8,000.“7 Section 32.227 specifically permitted the Travis County
Commissioners     Court to pay district court judges “an annual salary in an amount set by the
commissioners ~0ur-t.“~

        Mr. Stafford explains that nothing in the laws effective prior to September 1 prevented
“Harris County from granting a full $25,000 supplement to its judges,” but this would not have
increased the judges’ total salaries: if Harris County provided a salary supplement larger than
$9,300, the comptroller would have been required to reduce the state contribution under section
659.012(e) so that the total salary equaled $111,000. Harris County Attorney’s Brief, supra note 3,
at 3. Travis County’s situation was identical: Prior to September 1, section 32.227 placed no limit
on the amount Travis County may have paid its district judges. See Travis County Request Letter,




        ‘jAct of May 17, 1985, 69th Leg., R.S., ch. 480, 9 1, sec. 32.101(a), (c), 1985 Tex. Gen. Laws 1720, 1899,
amended by Act of May 6,2003,78th    Leg., RX, ch. 100, $ 1,2003 Tex. Sess. Law Serv. 138, 138 (to be codified at
TEX. GOV’T CODE ANN. 0 32.101).

         7Act ofMay 17,1985,69thLeg.,    R.S., ch. 480,§ 1, sec. 32.220(a), 1985 Tex. Gen. Laws 1720, 1911, amended
by Act of May 5, 2003, 78th Leg., R.S., ch. 62, 6 3,2003 Tex. Sess. Law Serv. 95, 96 (to be codified at TEX. GOV’T
CODE ANN. 0 32.220).

         *Act ofApr. 30,1987,70thLeg.,     R.S., ch. 148,§ 2.46, sec. 32.227(a), 1987 Tex. Gen. Laws 534,556, amended
by Act of May 23,2003,78th     Leg., R.S., ch. 675, 5 3,2003 Tex. Sess. Law Serv. 2096,2096 (to be codified at TEX.
GOV’T CODE ANN. $32.227).
The Honorable Mike Stafford - Page 4                      (GA-0099)
The Honorable Tim Curry
Ms. Susan A. Spataro, C.P.A., C.M.A.



supra note 3, at 2.9 Yet, if the county opted to raise the judges’ salaries so that their combined
salaries exceeded the amount section 659.012(a)(4) specifies, section 659.012(e) would have
required the comptroller to reduce the state salaries so that no judge received more than $111,000.
See TEX. GOV'T CODE ANN. 9 659.012(e) (Vernon Supp. 2003).

         All three of these specific statutes-sections  32.101,32.220, and 32.227-were      amended in
the legislature’s most recent regular session to permit Harris, Tan-ant, and Travis counties to increase
county salaries paid to district judges. For instance, noting, under the pre-September 1 version of
section 32.101, that Harris County was unable to compensate its district judges enough to retain
them, in May 2003 the legislature enacted Senate Bill 828, which amends section 32.101 to allow
“Harris County to increase the supplemental salary paid to district judges.” SENATE COMM. ON
JURISPRUDENCE,      BILL ANALYSIS, Tex. S.B. 828, 78th Leg., R.S. (2003). The amended section
32.101, which became effective September 1, removes a limit on the amount that the Harris County
Commissioners Court may pay its district court judges, “[nlotwithstanding        section 659.012”:

                  Notwithstanding Section 659.012, the [!f%e] Commissioners Court of Harris
         County may [s&&l] budget for and pay the judges of the district courts having
        jurisdiction in that county an annual salary in an amount set by the commissioners
         court [ma               than $:2,-l                     $25$X%] for judicial and
         administrative services. lo

The legislature similarly amended the statutes applicable to Tar-rant and Travis counties.                  Section
32.220(a), Government Code, was amended to read as follows:

                (a) Notwithstanding section 659.012, the [!l%e] Comrnissioners Court of
        Tarrant County may budget and [&&I] pay the judges of the district courts . . . an
        annual salary in an amount set by the commissioners court . . . .”

Section 32.227(a), Government         Code, was amended to read as follows:




         ‘See Act of Apr. 30, 1987, 70th Leg., R.S., ch. 148, $ 2.46, sec. 32.227(a), 1987 Tex. Gen. Laws 534, 556,
amended by Act of May 23,2003,78th     Leg., R.S., ch. 675, $3,2003 Tex. Sess. Law Serv. 2096,2096 (to be codified
at TEX. GOV’T CODEANN. $32.227).

         “Act of May 6,2003,78th   Leg., R.S., ch. 100, 0 1,2003 Tex. Sess. Law Serv. 138, 138 (to be codified at TEX.
GOV’T CODE ANN. 5 32.101); see id. 6 3 (effective   date).

         “Act of May 5, 2003, 78th Leg., R-S., ch. 62, 0 3,2003   Tex. Sess. Law Serv. 95, 96 (to be codified at TEX.
GOV’T CODE ANN. 0 32.220).
The Honorable Mike Stafford - Page 5                       (GA-0099)
The Honorable Tim Curry
Ms. Susan A. Spataro, C.P.A., C.M.A.



               (a) Notwithstanding Section 659.012, the [Fhe] Commissioners Court of
        Travis County may pay the judges of the district courts . . . an annual salary in an
        amount set by the commissioners court . . . .**

The Tarrant and Travis County bills’ legislative histories indicate simply that the bills remove “the
salary cap” on the amount Tarrant and Travis counties may pay their district judges. See FISCAL
NOTE, Tex. H.B. 858,78th Leg., R.S. (2003); SENATECorn. ON JURISPRUDENCE,            BILL ANALYSIS,
Tex. Comm. Substitute H.B. 2402, 78th Leg., R.S. (2003). Like the amended section 32.101, the
amended sections 32.220 and 32.227 took effect on September 1, 2003.13

II.      An alvsis

         Mr. Stafford questions whether, if the Harris County Commissioners Court now increases
district judges’ salaries under section 32.10 1, section 659.0 12(e) requires the comptroller to reduce
the state salaries so that the judges’ combined salaries would not exceed an amount that is $2,000
less than a supreme court justice’s salary. See Harris County Request Letter, supra note 1, at 1. Put
another way, he asks “whether the words ‘[nlotwithstanding Section 659.012,“‘inserted into section
32.101 by Senate Bill 828, “merely remover] the limit found in subparagraph (a)(4) of [slection
659.012 (limiting a Harris County judge’s total salary, received from both the county and the state),
or whether [they] also remove[] the effect of [slubsection (e) (requiring the comptroller to reduce
the amount of funds provided by the state).” Harris County Attorney’s Brief, supra note 4, at 3. Mr.
Curry and Ms. Spataro likewise ask about the effect of the phrase “[nlotwithstanding            Section
659.012” added to their counties’ statutes, sections 32.220(a) and 32.227(a). See Tarrant County
Request Letter, supra note 2, at 1; Travis County Request Letter, supra note 3, at 2.

          By “notwithstanding,” the legislature meant that sections 32.101,32.220, and 32.227 override
conflicting provisions of section 659.012. See In re Eubanks, 219 B.R. 468,470 (B.A.P. 6th Cir.
 1998); see also TEX. GOV’T CODE ANN. 8 3 11 .Ol 1(a) (Vernon 1998) (stating that statutory words
must be construed consistently with common usage); Williamson v. Schmid, 229 S.E.2d 400, 402
(Ga. 1976) (stating that the natural and ordinary meaning of the word “notwithstanding” is “without
obstruction from” or “in spite of 3; King v. Sununu, 490 A.2d 796,800 (N.H. 1985) (stating that the
plain meaning of the word “notwithstanding” is “without prevention or obstruction from or by,” or
“in spite of’). Indeed, the author of the 2003 bill that amended section 32.101, Senate Bill 828,
explained the use of the word “notwithstanding” to make the $2,000 differential required by section
659.012 inapplicable to Harris County: “What I am proposing to do is to say that ‘notwithstanding’
the original Government Code language in [chapter] 659, which says that it must stay within less
than $2,000 of the supreme court judge. ‘Notwithstanding’ that, get back and allow the language


        ‘*Act of May 23,2003,78th   Leg., R.S., ch. 675,§ 3,2003 Tex. Sess. Law Serv. 2096,2096 (to be codified at
TEX. GOV’TCODEANN. 8 32.227); see also id. 0 1,2003 Tex. Sess. Law Serv. 2096,2096 (to be codified at TEX. GOV’T
CODE ANN. 9 32.043(a)) (adding “[nlotwithstanding    [slection 659.012” to the Collin County district judges’ statute).

         i3See Act of May 5,2003,78th Leg., R.S., ch. 62,s 3,2003 Tex. Sess. Law Serv. 95,96; Act of May 23,2003,
78th Leg., R.S., ch. 675, § 3,2003 Tex. Sess. Law Serv. 2096,2096.
The Honorable Mike Stafford - Page 6                       (GA-0099)
The Honorable Tim Curry
Ms. Susan A. Spataro, C.P.A., C.M.A.



in section 32.101 to be implemented.”    Hearings on Tex. S.B. 828 Before the Senate Comm. on
Jurisprudence, 78th Leg., R.S. (Apr. 9,2003) (statement of Senator Whitmire) (tape available from
Senate Staff Services Office).

         Moreover, the “notwithstanding” phrase expressly applies not just to section 659.0 12(a)(4),
but to section 659.012 in its entirety. The phrase used in sections 32.101, 32.220, and 32.227,
“[nlotwithstanding   [slection 659.012,” does not specify a particular subsection or provision of
section 659.012, as we believe it would if the legislature intended to limit the phrase’s reach.14
Additionally, as you point out, if the comptroller can adjust a district judge’s salary so that the judge
would never receive more than section 659.012(a)(4) allows, the recent amendments to sections
32.101,32.220, and 32.227 have little meaning. We are instructed to construe legislative enactments
to have meaning. See TEX. GOV’T CODE ANN. 4 3 11.021 (Vernon 1998).

         Despite the phrase “[nlotwithstanding     [slection 659.012” in sections 32.101, 32.220, and
32.227, section 659.012 also contains a conflict provision: “To the extent of any conflict, the salary
differential provided by this section for the combined salary of a district judge prevails over any
differential set by Chapter 32.” Id. 8 659.012(b) (V emon Supp. 2003). If the conflict provision in
section 659.012 prevails over the conflict provisions in sections 32.101, 32.220, and 32.227, of
course, then the total salary of a district judge in Harris, Tarrant, or Travis County may not exceed
the amount described in section 659.012(a)(4), regardless of the amount of the judge’s county salary.

          Sections 32.101,32.220, and 32.227 prevail as later enacted local provisions. First, the 2003
amendments to the relevant sections of chapter 32 were adopted more recently than the relevant
portions of section 659.012. Generally, when two statutes are irreconcilable, the later enacted statute
prevails. See id. 5 3 11.025(a) (V emon 1998). The substance of section 659.012(b), which provides
that the salary differential provided by section 659.012 prevails over a conflicting differential
provided in chapter 32, was added to section 659.012’s statutory predecessor in 1989? Second,
sections 32.101,32.220, and 32.227 prevail as local exceptions to section 659.012. The special or
local provision prevails as an exception to a conflicting general provision. See id. 8 3 11.026(b).
While section 659.012 relates to state court judges generally, section 32.101 relates to Harris County
district judges specifically, section 32.220 relates to Tarrant County specifically, and section 32.227
relates to Travis County specifically. See Hearings on Tex. S-B. 828 Before the Senate Comm. on
Jurisprudence, 78th Leg., R.S. (Apr. 9,2003) (testimony of Senator Whitmire) (tape available from
Senate Staff Services Office) (characterizing the bill proposing amendments to section 32.101 as a
“local bill”).




          14Act ofMay 6,2003,78th  Leg., R.S., ch. 100, $ 1,2003 Tex. Sess. Law Serv. 138,138 (to be codified at TEX.
GOV’TCODEANN. 8 32.101(a)); Act of May 5,2003,78th         Leg., R.S., ch. 62, 6 3,2003 Tex. Sess. Law Serv. 95,96 (to
be codified at TEX. GOV’T CODEANN. 6 32.220(a)); Act of May 23,2003,78th,        Leg., R.S., ch. 675, $3,2003 Tex. Sess.
Law Serv. 1096, 1096 (to be codified at TEx. GOV’T CODEANN. $ 32.227(a)).

         “See Act of May 24, 1989,71st     Leg., R.S., ch. 1258, $ 1, sec. 3(b), 1989 Tex. Gen. Laws 5073,5074.
The Honorable Mike Stafford - Page 7                (GA-0099)
The Honorable Tim Curry
Ms. Susan A. Spataro, C.P.A., C.M.A.


        In addition, section 659.012 expressly acknowledges that some district judges may be
excepted from its reach. Section 659.012(a)(4) states that a district judge’s salary may not exceed
“the amount that is $2,000 less than” a supreme court justice’s salary “unless otherwise provided by
law.” See TEX. GOV’T CODE ANN. 5 659.012(a)(4) (Vernon Supp. 2003).

         We therefore conclude that, should the Harris, Tar-rant, or Travis County commissioners court
decide to increase the salaries it pays to district judges, the comptroller may not reduce the judges’
state salaries so that they receive no more than section 659.012(a)(4) allows. See also Hearings on
Tex. S.B. 828 Before the Senate Comm. on Jurisprudence, 78th Leg., R.S. (Apr. 14,2003) (statement
of Senator Whitmire) (tape available from Senate Staff Services Office) (stating that removing the
cap on the county’s district judges’ salaries “does not affect the state allocation”); FISCALNOTE,Tex.
S.B. 828, 78th Leg., R.S. (2003) (anticipating “[n]o fiscal implication to the State” with respect to
Harris County provision); FISCALNOTE, Tex. H.B. 858,78th Leg., R.S. (2003) (same with respect
to Tart-ant County provision); FISCAL NOTE, Tex. H.B. 2402, 78th Leg., R.S. (2003) (same with
respect to Collin and Travis County provisions).

         Certain provisions in the 2004-2005 General Appropriations Act appear to conflict with
chapter 32’s specific provisions.      Under the Appropriations Act, which became effective on
September 1, each district court “shall file a sworn statement with the [clomptroller . . . setting forth
the yearly amounts to be received from state and county as salary payments during the ensuing fiscal
year.” General Appropriations Act, 78th Leg., R.S., H.B. 1, art. IV (Special Provisions - Judiciary
8 2)? The Appropriations Act provides that the comptroller shall then use the filed statements to
“determine . . . that the required salary differential set out in Government Code 8 659.012 is
maintained.    In the event a salary [exceeds] the differential provided by law, the [clomptroller is
directed to reduce the state’s portion of that salary by the amount of excess.” Id. Finally, “[tlhe
appropriations for” district court judges’ salaries “are made contingent upon strict compliance with
the provisions of this section and the [clomptroller shall have no authority to issue a warrant for
salaries which violate these provisions.”        Id. If the comptroller were to comply with the
Appropriations Act, she would contravene sections 32.101,32.220, and 32.227 of the Government
Code.

          Sections 32.101, 32.220, and 32.227 prevail over the General Appropriations             Act’s
conflicting provisions.        A rider in the Appropriations  Act may not attempt to alter existing
substantive law, see TEX. CONST. art. III, 8 35(a); Strake v. Ct. App. for the First Supreme Judicial
Dist. of Tex.., 704 S.W.2d 746,748 (Tex. 1986), which is, in effect, what these requirements in the
Appropriations Act attempt to do. As we have determined, Harris, Tarrant, and Travis counties are
authorized, by sections 32.101, 32.220, and 32.227 of the Government Code, respectively, to
increase the county salaries paid to district judges in those counties, and if they do, the comptroller
may not reduce the state salaries in accordance with section 659.012(e). To the extent that the
Appropriations Act authorizes the comptroller to do something that she is unauthorized to do by
statute, it unconstitutionally   amends general law. See Strake, 704 S.W.2d at 748.


        ‘6AvaiZabZe at www.lbb.state.tx.us/The-LBB/Access/AppBills-LBEs.htm.
The Honorable Mike Stafford - Page 8             (GA-0099)
The Honorable Tim Curry
Ms. Susan A. Spataro, C.P.A., C.M.A.



                                       SUMMARY

                         If the commissioners court of Harris, Tarrant, or Travis
                 county chooses to increase its district judges’ county salaries
                 under section 32.101,32.220, or 32.227 ofthe Government Code,
                 the comptroller may not reduce the judges’ state salaries in
                 accordance with section 659.012(e) of the same code. To the
                 extent the General Appropriations Act requires the comptroller to
                 reduce the state salaries in this situation, it unconstitutionally
                 seeks to amend general law.




BARRY R. MCBEE
First Assistant Attorney General

DON R. WILLETT
Deputy Attorney General for Legal Counsel

NANCY S. FULLER
Chair, Opinion Committee

Kymberly K. Oltrogge
Assistant Attorney General, Opinion Committee
