Can one Texas district judge pay his court reporter a different salary than the other judges in the county?

Texas AG Opinion DM-0074: District Judges and Court Reporter Salary Variance

Plain-English summary

The Nueces County Attorney asked whether one of the eight district judges in the county could set his official court reporter's salary at a level different from the salaries set by the other seven district judges. The Attorney General concluded that he could.

The answer came from the plain language of section 52.051 of the Government Code, which says an official district court reporter "shall be paid a salary set by the order of the judge of the court." The opinion read that as making the salary a unilateral act of the judge of the court in which the reporter works. Nothing in the statute requires the judges within a district or county to agree on one salary for all court reporters, and nothing forbids one reporter's salary from differing from another's. The opinion pointed to Mays v. Fifth Court of Appeals, where the Texas Supreme Court had implicitly accepted divergent court reporter salaries when only some of the judges ordered a five percent increase, and to Gill-Massar v. Dallas County and Duncan v. Pogue.

The opinion treated a judge's pay order as presumed valid so long as it stayed within the limits section 52.051 sets. Those limits include a cap (a reporter generally may not get more than a 10 percent raise over the prior budget year without commissioners court approval) and a rule that a successor reporter may not be paid more than the predecessor. The county attorney had confirmed the salary in question was within the statutory maximum, so the opinion presumed it valid. The opinion added that when the legislature wants district judges to act as one collective body in setting a public employee's salary, it says so expressly, as it did for setting the county auditor's salary by majority vote. So the bare fact that a court reporter's salary differs from what the other judges set does not, by itself, rebut the presumption that the order is valid. The opinion compared its earlier Opinion DM-51 (1991), which had concluded that a pay-scale difference among justices of the peace in the same county did not, on its face, violate the equal protection clause of the Fourteenth Amendment.

Currency note

This opinion was issued in 1992. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Government Code section 52.051 and the related court reporter salary rules have been amended since 1992, including the increase caps and approval procedures. Verify current law before relying on anything here.

Common questions

Could one district judge pay his court reporter differently from the other judges in the county?
Yes, under this 1992 opinion. The opinion concluded a district judge could set his official court reporter's salary at a level differing from those set by the other district judges in the county.

Where did that authority come from?
Section 52.051 of the Government Code says the official district court reporter is paid a salary set by the order of the judge of the court. The opinion read that as a unilateral act of the judge, with no requirement that the county's judges agree on a single figure.

Were there limits on the salary?
Yes. The opinion noted the salary was subject to statutory limits, including a cap on raises greater than 10 percent over the preceding budget year without commissioners court approval, and a rule that a successor reporter could not be paid more than the predecessor. A pay order within those limits was presumed valid.

Did the difference by itself make the salary invalid?
No. The opinion concluded the mere fact that a court reporter's salary differed from those set by the other district judges did not rebut the presumption of validity.

Background and statutory framework

Government Code section 52.051(a) provides that an official district court reporter "shall be paid a salary set by the order of the judge of the court," in addition to transcript and statement-of-facts fees and other authorized expenses. The amount is subject to limitations in section 52.051, including subsection (d) (no raise more than 10 percent over the preceding budget year without approval of the commissioners court of each county in the judicial district) and subsection (e) (a successor may not be paid more than the predecessor), along with timing requirements for submitting an increase order to the commissioners courts. The salary-setting procedure, including a public hearing, is addressed in Local Government Code section 152.905. The opinion footnoted that section 52.051 does not violate Texas Constitution article VIII, sections 1-a and 9 (county commissioners court authority over tax rates, subject to ceilings), citing Gill-Massar v. Dallas County. It relied on Mays v. Fifth Court of Appeals and Duncan v. Pogue for the standard of review, noted that the legislature acts expressly when it requires judges to set a salary collectively (as with the county auditor's salary, set by majority vote of the district judges), and compared Opinion DM-51 (1991) on equal protection under the Fourteenth Amendment.

Citations

Constitutional and statutory provisions:

• Gov't Code § 52.051 (official district court reporter salary; limits and approval)
• Local Gov't Code § 152.905 (salary-setting procedure; public hearing)
• Tex. Const. art. VIII, §§ 1-a, 9 (commissioners court tax-rate authority and ceilings)
• U.S. Const. amend. XIV (equal protection)

Cases:

• Mays v. Fifth Court of Appeals, 755 S.W.2d 78 (Tex. 1988)
• Gill-Massar v. Dallas County, 781 S.W.2d 612 (Tex. App.-Dallas 1989, no writ)
• Duncan v. Pogue, 759 S.W.2d 435 (Tex. 1988)

Source

• Landing page: https://www.texasattorneygeneral.gov/opinions/dan-morales/dm-0074
• Original PDF: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1992/dm0074.pdf

Original opinion text

Best-effort transcription from a scanned PDF. Minor errors may remain — the linked PDF is authoritative.

Office of the Attorney General
State of Texas

DAN MORALES
Attorney General

January 17, 1992

Honorable Carlos Valdez
Nueces County Attorney
Nueces County Courthouse
901 Leopard
Corpus Christi, Texas 78401-3680

Opinion No. DM-74

Re: Whether a district judge can set the salary of his official court reporter at a level that differs from that set by the other district judges in a county (RQ-52)

Dear Mr. Valdez:

You ask whether one of the district judges in Nueces County can set the salary of his official court reporter at a level that differs from that set by the seven other district judges in that county. We conclude that he may.

Section 52.051 of the Government Code[1] provides:

(a) An official district court reporter shall be paid a salary set by the order of the judge of the court. This salary is in addition to transcript fees, fees for a statement of facts, and other necessary expenses authorized by law.[2]

. . . .

(d) The official district court reporter may not receive a salary that is more than 10 percent greater than the salary received during the preceding budget year without the approval of the commissioners court of each county in the judicial district.

(e) A person appointed to succeed an official district court reporter may not receive a salary greater than the salary received by the person's predecessor in office.

(Emphasis added.)

We find that the plain language of the statute indicates that the salary of an official court reporter is determined by a unilateral act[3] of the judge of the court in which the reporter is employed. We find no indication in this statute that the judges within one district must be in agreement as to one salary for the court reporters in all districts; or that deviation among the salaries of court reporters in a district is precluded. See Mays v. Fifth Court of Appeals, 755 S.W.2d 78 (Tex. 1988); Gill-Massar v. Dallas County, 781 S.W.2d 612 (Tex. App.--Dallas 1989, no writ).

A district judge's order of a pay increase is presumed valid as long as it is within the limitations authorized by section 52.051 of the Government Code. See Mays, supra (implicit approval of divergent court reporter salaries where a five percent salary increase was ordered by only "some" of the judges); Duncan v. Pogue, 759 S.W.2d 435 (Tex. 1988) (affirming Mays standard of review). You inform us that the variant salary in this case is within the maximum allowed by statute; therefore, we can presume it is valid. See Mays, supra. Further, we think that when the legislature requires district judges to act as one collective body in setting the salaries of public employees, it does so expressly. See Local Gov't Code § 152.031 (district judges shall set, by majority vote, the county auditor's annual salary). Thus, we conclude that the fact alone that an official court reporter's salary differs from that set by the other district judges in a county does not rebut the presumption of its validity. Cf. Attorney General Opinion DM-51 (1991) (pay scale differential for justices of the peace in same county does not, on its face, violate equal protection clause of the fourteenth amendment to the United States Constitution).

SUMMARY

A district judge can set the salary of his official court reporter at a level that differs from that set by the other district judges in a county.

DAN MORALES
Attorney General of Texas

WILL PRYOR
First Assistant Attorney General

MARY KELLER
Deputy Assistant Attorney General

JUDGE ZOLLIE STEAKLEY (Ret.)
Special Assistant Attorney General

RENEA HICKS
Special Assistant Attorney General

MADELEINE B. JOHNSON
Chair, Opinion Committee

Prepared by Kay Guajardo
Assistant Attorney General

[1] Section 52.051 does not violate provisions of the Texas Constitution, article VIII, sections 1-a and 9, which empower the county commissioners court to set tax rates, subject to applicable tax rate ceilings. Gill-Massar v. Dallas County, 781 S.W.2d 612 (Tex. App.--Dallas 1989, no writ).

[2] The amount of an official court reporter's salary is subject to various limitations. See Gov't Code § 52.051(b), (d), (e). Additionally, there are time constraints during which an order increasing a court reporter's salary must be submitted to the commissioners court of each county in the judicial district. See id. § 52.051(c). The procedure for setting a salary is also statutorily defined, and includes holding a public hearing on the matter. See Local Gov't Code § 152.905.

[3] We note that section 52.051(d) of the Government Code requires commissioners court approval of a salary of an official court reporter in certain situations.