Did the Kerr County judge have to conduct mental-health hearings at the state hospital, and could the county offset the judge’s salary supplement?

TX AG Opinion GA-0244: Did Kerr County owe the judge a hearing supplement?

Plain-English summary

Kerr County’s attorney asked whether the constitutional county judge had to hear mental-health matters involving Kerrville State Hospital, including cases originating in other counties, and whether the judge was entitled to a salary supplement for hearings held away from the courthouse.

The Attorney General first concluded that Kerr County’s constitutional county court and county court at law had concurrent jurisdiction over Mental Health Code proceedings. Traditional assignment of all such matters to the constitutional court did not make that court exclusively responsible.

Whether either court had to hear a matter involving an out-of-county patient depended on the statute authorizing the filing. An application could be filed where the proposed patient resided, was found, or was already receiving qualifying services, so Kerr County jurisdiction could attach even when the patient lived elsewhere. But section 574.008(c) did not generally require the county where a patient was temporarily hospitalized to conduct an extended-services hearing initiated by another county. Certain transferred psychoactive-medication applications were different: section 574.104(d) required the receiving county’s court to hear a properly transferred application.

A mental-health hearing could be held at any suitable place in the county, including the state hospital, but did not have to be held there. Section 574.031 also required a courthouse hearing when requested by the proposed patient or the patient’s attorney.

Sections 571.018(c)(5) and 574.031(i), read together, authorized but did not require commissioners court to establish a salary-supplement court cost for hearings held outside the courthouse. Once the county established that cost, section 571.018(g) made the qualifying judge entitled to the supplement as additional compensation.

Kerr County could not withhold the supplement or reduce the judge’s annual salary by the same amount as a condition of payment. The opinion gave three reasons: an offset would divert dedicated court-cost revenue to general county use, defeat the Legislature’s incentive for off-courthouse hearings, and duplicate the separate judge’s-services fee authorized by section 574.031(j). An unrelated salary reduction under the ordinary county budgeting process remained possible, including an across-the-board reduction, so long as it was not tied to expected supplements.

Currency note

This opinion was issued in 2004. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

Who this opinion affected (as of 2004)

Kerr County’s two county courts: Both had jurisdiction over Mental Health Code matters, subject to the statutory basis for each filing or transfer.

County judges holding hospital hearings: A judge qualified for the established supplement when holding hearings outside the courthouse, and the county could not neutralize it through an equal salary offset.

Commissioners courts: They could decide whether to create the salary-supplement court cost, but once created the collected funds were dedicated to the statutory supplement.

Patients and counsel: They could require that an application hearing be held at the county courthouse under section 574.031(b).

State hospitals and referring counties: A hospital’s location did not by itself shift every proceeding to the host county; the relevant filing, commitment, modification, and transfer provisions controlled.

Common questions

Did the constitutional county court have exclusive jurisdiction?
No. The opinion concluded that Kerr County’s constitutional county court and county court at law had concurrent Mental Health Code jurisdiction.

Did every out-of-county patient at Kerrville State Hospital require a Kerr County hearing?
No. The answer depended on the statute governing the particular proceeding. Section 574.008(c), for example, permitted an arrangement for a local extended-care hearing but did not require it.

Did mental-health hearings have to occur at the hospital?
No. The court could select a suitable location, and the patient or counsel could request the county courthouse.

Was the salary supplement mandatory before the county created the court cost?
No. The opinion read the statutes to authorize, but not require, the commissioners court to establish the salary-supplement cost.

Could the county reduce the judge’s base salary by exactly the supplement amount?
No. That arrangement would defeat the dedicated and additional character of the supplement. The opinion did not prohibit an unrelated salary reduction adopted under chapter 152.

Background and statutory framework

The Texas Mental Health Code placed emergency detention procedures in chapter 573 and court-ordered mental-health proceedings in chapter 574. It identified the counties where an application could be filed and allocated proceedings among constitutional and statutory county courts, including patients receiving services away from the originating county.

Government Code section 25.1352(b) gave Kerr County’s county court at law probate and Mental Health Code jurisdiction concurrent with the constitutional county court. Health and Safety Code section 574.008(a) likewise directed subchapter C and E proceedings to a statutory or constitutional county court with probate jurisdiction in mental-illness matters.

Section 574.031 governed hearing locations and compensation. Subsections (h) and (i) addressed expenses and a salary supplement for hearings outside the courthouse; subsections (j) and (k) allowed separate fees for judicial and prosecutorial services. Section 571.018 identified the county responsible for costs and classified authorized salary supplements as court costs.

The opinion used the Code Construction Act’s rule that “is entitled to” creates or recognizes a right. It also read the supplement within the whole cost scheme, following Texas Workers’ Compensation Ins. Fund v. Del Indus. rather than construing section 574.031(i) in isolation.

Citations

Constitution and statutes:

• Tex. Const. art. V, § 15; art. V, § 16; art. XVI, § 61
• Tex. Health & Safety Code §§ 571.001, 571.018, 573.001-.026, 574.001, 574.008, 574.025, 574.031-.037, 574.061-.070, 574.104
• Tex. Gov’t Code §§ 25.1351, 25.1352, 101.081, 101.101, 101.121, 311.016, 311.021, 311.023
• Tex. Local Gov’t Code §§ 113.021, 152.011-.017, 154.002-.003
• Tex. Probate Code § 5(c)

Case:

• Texas Workers’ Compensation Ins. Fund v. Del Indus., Inc., 35 S.W.3d 591 (Tex. 2000)

Related opinions:

• Tex. Att’y Gen. Ops. JC-0287 (2000); JC-0364 (2001); GA-0162 (2004); MW-110 (1979); Tex. Att’y Gen. LO-98-053

Source

• Landing page: https://www.texasattorneygeneral.gov/opinions/greg-abbott/ga-0244
• Original PDF: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/2004/ga0244.pdf

Original opinion text

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

ATTORNEY GENERAL OF TEXAS

GREG ABBOTT

September 1, 2004

The Honorable David M. Motley
Kerr County Attorney
County Courthouse, Suite BA-103
700 Main Street
Kerrville, Texas 78028

Opinion No. GA-0244

Re: Whether the judge of the Kerr County constitutional county court must hear certain
matters at the Kerrville State Hospital and is entitled to a salary supplement for doing so
(RQ-0197-GA)

Dear Mr. Motley:

You ask whether the judge of the Kerr County constitutional county court must hear certain
matters at the Kerrville State Hospital and is entitled to a salary supplement for doing so.1

I. Background

Title 7, subtitle C of the Health and Safety Code, the Texas Mental Health Code, see TEX.
HEALTH & SAFETY CODE ANN. §§ 571.001-578.008 (Vernon 2003 & Supp. 2004); see also id.
§ 571.001 (Vernon 2003) (short title), pertains to mentally ill individuals’ care and treatment. Under
chapter 573, an individual who is believed to be mentally ill may be detained on an emergency basis.
See id. §§ 573.001-.026 (Vernon 2003 & Supp. 2004). Under chapter 574, a prosecutor or another
adult may apply for court-ordered mental health care for an individual who may be mentally ill. See
id. § 574.001(a) (Vernon Supp. 2004); Tex. Att’y Gen. Op. No. JC-0287 (2000) at 2. Generally, the
application must be filed with the county clerk in the county in which the proposed patient resides,
is found, or is already receiving mental health services. See TEX. HEALTH & SAFETY CODE ANN.
§ 574.001(b) (Vernon Supp. 2004). Chapter 574, subchapter C provides for proceedings for court-
ordered mental health services. See id. §§ 574.031-.037 (Vernon 2003 & Supp. 2004). Upon
making certain findings, a judge may order that a person receive temporary or extended inpatient or
outpatient mental health services. See id. §§ 574.034(a) (Vernon 2003) (temporary inpatient
services), (b) (temporary outpatient services), 574.035(a) (Vernon Supp. 2004) (extended inpatient
services), (b) (extended outpatient services). Subchapter E provides for post-commitment
proceedings to modify the terms of a commitment order. See id. §§ 574.061-.070 (Vernon 2003).

1See Letter from Honorable David M. Motley, Kerr County Attorney, to Honorable Greg Abbott, Texas
Attorney General (Mar. 8, 2004) (on file with the Opinion Committee; also available at http://www.oag.state.tx.us)
[hereinafter Request Letter].

The costs for a hearing or proceeding under the Texas Mental Health Code are paid by:

(1) the county that initiates emergency detention procedures
under Subchapter A or B, Chapter 573; or

(2) if no emergency detention procedures are initiated, the
county that accepts an application for court-ordered mental health
services, issues an order for protective custody, or issues an order for
temporary mental health services.

Id. § 571.018(a). In addition, “[t]he county responsible for the costs of a hearing or proceeding

... shall pay the costs of all subsequent hearings or proceedings for that person under this subtitle
until the person is discharged from mental health services. The costs shall be billed by the clerk of
the court conducting the hearings.” Id. § 571.018(b).

You state that Kerr County is served by two county courts, the constitutional county court
and a county court at law. See Request Letter, supra note 1, at 1; see also TEX. GOV’T CODE ANN.
§ 25.1351 (Vernon 2004) (“Kerr County has one statutory county court, the County Court at Law
of Kerr County.”). The Kerrville State Hospital, a Texas Department of Mental Health and Mental
Retardation facility that serves 27 counties, is located in Kerr County. See Request Letter, supra
note 1, at 1. Eighty percent of the patients committed to the hospital are from other counties. See
id. Traditionally, the constitutional county court “has heard mental health commitment hearings for
all cases at the Kerrville State Hospital.” Id. at 2. “[A]pproximately 80% of these cases originate
from counties other than Kerr County.” Id. These cases are heard at the hospital, “away from the
county courthouse where the County Court customarily holds hearings.” Id.

Your questions pertain to the Kerr County constitutional county court’s duty to hear mental
health commitment hearings at the state hospital and the judge’s entitlement to receive a salary
supplement for doing so. As background to your questions, you explain that in 1999, the Kerr
County Commissioners Court approved a $10.00 “judicial salary supplement fee” to be charged in
mental health cases pursuant to section 574.031(i) of the Health and Safety Code. See id. The
county’s 2003-2004 budget included a line item to pay the constitutional county court judge a salary
supplement in an amount equal to the estimated number of mental health hearings to be held away
from the county courthouse multiplied by $10.00. See id. The commissioners court “approved
payment of. . . [the] salary supplement to the judge in the budget; however, such approval was on
the express condition that the judge’s salary to be paid by Kerr County should be reduced by an
amount equal to such approved salary supplement in the County Court budget, and reduced the
judge’s salary accordingly.” Id.

II. Analysis

A. The Constitutional County Court’s Duty to Hold Mental Health Commitment
Hearings at the State Hospital

You first ask whether “the judge of the Constitutional County Court of Kerr County
[is] required by the Constitution or state statutes to hear all of the mental health commitment

hearings held at Kerrville State Hospital, including those from counties other than Kerr County[.]”
Request Letter, supra note 1, at 3. This question requires us to address which Kerr County courts
have jurisdiction over these proceedings, including proceedings involving persons from other
counties, and where in the county such proceedings are to be held.

You ask about the Kerr County constitutional county court’s duties. Article V, section 15
of the Texas Constitution establishes a county court in each county. See TEX. CONST. art. V, § 15.’
Under the constitution, “The County Court has jurisdiction as provided by law. The County Judge
is the presiding officer of the County Court and has judicial functions as provided by law.” Id. § 16.
In addition to the constitutional county court, Kerr County has a county court at law. See TEX.
GOV’T CODE ANN. § 25.1351 (Vernon 2004) (“Kerr County has one statutory county court, the
County Court at Law of Kerr County.””). Although you inform us that the constitutional county court
in Kerr County has traditionally heard all mental health proceedings in the county, the Government
Code provides the Kerr County constitutional county court and county court at law with concurrent
jurisdiction over proceedings under the Texas Mental Health Code. See id. § 25.1352(b) (“In
addition to the jurisdiction provided by Section 25.0003 and other law, a county court at law in Kerr
County has: (1) concurrent jurisdiction with the district court in proceedings under the Family Code;
and (2) concurrent with the county court, the jurisdiction of a probate court in proceedings under
Chapter 462, Health and Safety Code, and Subtitle C, Title 7, Health and Safety Code.”) (emphasis
added).’ In addition, section 574.008(a) of the Health and Safety Code provides that “[a] proceeding
under Subchapter C or E must be held in the statutory or constitutional county court that has the
jurisdiction of a probate court in mental illness matters.” TEX. HEALTH & SAFETY CODE ANN.
§ 574.008(a) (Vernon 2003). Thus, in Kerr County proceedings for court-ordered mental health
services may be heard by either the constitutional county court or the county court at law.

You also ask whether the Kerr County constitutional county court is required to hear
proceedings involving patients from other counties. See Request Letter, supra note 1, at 3. Whether
the court has jurisdiction and thus a duty to hear a particular matter will depend upon the statutory
basis for the proceeding. Because an application for court-ordered mental health services may be
filed with the county clerk in the county in which the proposed patient resides, is found, or is already
receiving mental health services by court order or under subchapter A of chapter 573, see TEX.
HEALTH & SAFETY CODE ANN. § 574.001(b) (Vernon Supp. 2004); see also id. ch. 573, subch. A
(Vernon 2003 & Supp. 2004), the court may have jurisdiction over and be required to hear a matter
involving a patient who resides in another county. See generally Tex. Att’y Gen. Op. No. JC-0364
(2001) (concluding that Howard County may not refuse to conduct a probable cause hearing under

2This provision states: “There shall be established in each county in this State a County Court, which shall be
a court of record; and there shall be elected in each county, by the qualified voters, a County Judge, who shall be well
informed in the law of the State; shall be a conservator of the peace, and shall hold his office for four years, and until
his successor shall be elected and qualified. He shall receive as compensation for his services such fees and perquisites
as may be prescribed by law.” TEX. CONST. art. V, § 15.

3See also TEX. PROB. CODE ANN. § 5(c) (Vernon Supp. 2004) (“In those counties in which there is no statutory
probate court, but in which there is a county court at law or other statutory court exercising the jurisdiction of a probate
court, all applications, petitions, and motions regarding probate and administrations shall be filed and heard in those
courts and the constitutional county court, unless otherwise provided by law.”).

section 574.025 of the Health and Safety Code if an application for court-ordered mental health
services is pending in the appropriate Howard County court).

You are concerned about the court’s duties with respect to hearing matters involving patients
receiving mental health services in Kerr County whose treatment was initiated in another county and
who are receiving services pursuant to the order of a court in another county. Generally, chapter 574,
subchapter E provides that requests to modify commitment orders are filed with the court that
entered the commitment order. See, e.g., TEX. HEALTH & SAFETY CODE ANN. §§ 574.061(a)
(Vernon 2003) (“The facility administrator of a facility to which a patient is committed for inpatient
mental health services may request the court that entered the commitment order to modify the order
to require the patient to participate in outpatient mental health services.”), 574.062(a) (“The court
that entered an order directing a patient to participate in outpatient mental health services may set
a hearing to determine if the order should be modified in a way that is a substantial deviation from
the original program of treatment incorporated in the court’s order.”). However, section 574.008(c)
of the Health and Safety Code permits a court in the county where a patient is receiving temporary
inpatient services to hear a request for extended inpatient services:

If a patient is receiving temporary inpatient mental health
services in a county other than the county that initiated the
court-ordered inpatient mental health services and the patient requires
extended inpatient mental health services, the county in which the
proceedings originated shall pay the expenses of transporting the
patient back to the county for the hearing unless the court that entered
the temporary order arranges with the appropriate court in the
county in which the patient is receiving services to hold the hearing
on court-ordered extended inpatient mental health services before the
original order expires.

Id. § 574.008(c) (emphasis added). By its plain terms, section 574.008(c) does not require a court
in the county where the patient is receiving services to hold the hearing. See id.4

Finally, subchapter G of chapter 574 permits a physician who is treating a patient to “file an
application in a probate court or a court with probate jurisdiction for an order to authorize the
administration of a psychoactive medication regardless of the patient’s refusal.” Id. § 574.104(a);
see also id. § 574.104(c) (“An application filed under this section is separate from an application for
court-ordered mental health services.”). Section 574.104(d) requires a court to hear a subchapter G
application transferred from another county if the patient has been transferred to a mental health
facility in the court’s county. See id. § 574.104(d) (“If the hearing is not held on the same day as the
application for court-ordered mental health services under Section 574.034 or 574.035 and the
patient is transferred to a mental health facility in another county, the court may transfer the

4See also Tex. Att’y Gen. Op. No. JC-0364 (2001) at 11 (“[W]ith respect to a patient receiving temporary
inpatient mental-health services in Howard County under order by another county’s court, Howard County Courts have
no jurisdiction to conduct a ninety-day hearing under section 574.034 or a hearing on a motion for extended care under
section 574.035 unless the appropriate Howard County court has arranged to hold the hearing.”).

application for an order to authorize psychoactive medication to the county where the patient has
been transferred.”).5 In sum, the Kerr County constitutional county court or the county court at law
is required to hear a matter involving a patient receiving mental health services in Kerr County
whose treatment was initiated in another county and who is receiving services pursuant to the order
of a court in another county only in certain circumstances.

You ask whether hearings for court-ordered mental health services must be held at the
Kerrville State Hospital. See Request Letter, supra note 1, at 3. Section 574.031(a)-(b) of the Health
and Safety Code provides as follows:

(a) Except as provided by Subsection (b), the judge may hold
a hearing on an application for court-ordered mental health services
at any suitable location in the county. The hearing should be held in
a physical setting that is not likely to have a harmful effect on the
proposed patient.

(b) On the request of the proposed patient or the proposed
patient’s attorney the hearing on the application shall be held in the
county courthouse.

TEX. HEALTH & SAFETY CODE ANN. § 574.031(a)-(b) (Vernon 2003); see also id. §§ 574.061(d)
(requiring that hearing on request to modify inpatient service commitment order to require the patient
to participate in outpatient mental health services shall be held “as prescribed by Section 574.031”),
574.062(c) (hearing to modify outpatient service commitment order “shall be held before the court,
without a jury, and as prescribed by Section 574.031”). In addition, section 574.031(h)-(i) provides
for payment of expenses and a salary supplement to a judge who holds hearings in hospitals or
locations other than the county courthouse. See id. § 574.031(h)-(i). These provisions permit but

do not require a court to hold a hearing at a state hospital or other location outside the county
courthouse.

B. The Section 574.031(i) Salary Supplement

1. Statutory Provisions

Your remaining questions involve the salary supplement authorized by section
574.031 of the Health and Safety Code. See Request Letter, supra note 1, at 3. Section 574.031
establishes general guidelines for proceedings for court-ordered mental health services. Subsections
(h) and (i) provide for the expenses and a salary supplement for a judge who holds hearings outside
the county courthouse:

5See also id. at 14 (concluding that, with respect to a hearing on a physician’s application to administer
psychoactive medication to a patient transferred to Big Spring State Hospital from another county, Howard County may
not refuse to conduct the hearing if the application was transferred to a Howard County court).

(h) A judge who holds a hearing under this section in
hospitals or locations other than the county courthouse is entitled to
be reimbursed for the judge’s reasonable and necessary expenses
related to holding a hearing at that location. The judge shall furnish
the presiding judge of the statutory probate courts or the presiding
judge of the administrative region, as appropriate, an accounting of
the expenses for certification. The presiding judge shall provide a
certification of expenses approved to the county judge responsible for
payment of costs under Section 571.018.

(i) A judge who holds hearings at locations other than the
county courthouse also may receive a reasonable salary supplement
in an amount set by the commissioners court.

TEX. HEALTH & SAFETY CODE ANN. § 574.031(h)-(i) (Vernon 2003).

In addition, subsections (j) and (k) permit a judge who holds a hearing to assess as court costs
fees for the judge’s and prosecutor’s services:

(j) Notwithstanding other law, a judge who holds a hearing
under this section may assess for the judge’s services a fee in an
amount not to exceed $50 as a court cost against the county
responsible for the payment of the costs of the hearing under Section
571.018.

(k) Notwithstanding other law, a judge who holds a hearing
under this section may assess for the services of a prosecuting
attorney a fee in an amount not to exceed $50 as a court cost against
the county responsible for the payment of the costs of the hearing
under Section 571.018. For a mental health proceeding, the fee
assessed under this subsection includes costs incurred for the
preparation of documents related to the proceeding. The court may
award as court costs fees for other costs of a mental health proceeding
against the county responsible for the payment of the costs of the
hearing under Section 571.018.

Id. § 574.031(j)-(k).6 The fees for the judge’s and attorney’s services are not contingent on the
hearing’s location. See id.; see also Tex. Att’y Gen. Op. No. JC-0364 (2001) at 7 (noting that
section 574.031(k) fees do not supplement prosecutor salaries and must be deposited with the county
treasurer according to section 113.021 of the Local Government Code); Tex. Att’y Gen. LO-98-053,
at 1-2 (same).

6A clerk of a statutory county court, statutory probate court, or county court is expressly required to collect these
two fees. See TEX. GOV’T CODE ANN. §§ 101.081(9)-(10), 101.101(5)-(6), 101.121(7)-(8) (Vernon Supp. 2004).

2. Threshold Question: Whether the Statutes Authorize a Commissioners Court
   to Set a Salary Supplement Fee as a Court Cost

Your questions involve a fee set by the Kerr County Commissioners Court
under section 574.031(i), which is charged as a court cost. See Request Letter, supra note 1, at 2.
As a threshold matter, we must decide whether the statutes authorize a commissioners court to set
such a court cost. Unlike subsections (j) and (k) of section 574.031, subsection (i) does not state that
the salary supplement is a court cost. Read solely in the context of section 574.031, it is not clear
whether subsection (i) authorizes a commissioners court to set a salary supplement as a court cost
or, alternatively, merely to pay a salary supplement to a judge who holds hearings away from the
county courthouse. See TEX. HEALTH & SAFETY CODE ANN. § 574.031(i) (Vernon 2003) (“A judge
who holds hearings at locations other than the county courthouse also may receive a reasonable
salary supplement in an amount set by the commissioners court.”). In addition, it is not clear
whether the commissioners court referred to in section 574.031(i) is the commissioners court of the
county where the hearing is held (and that pays the judge’s salary) or the commissioners court of the
county responsible for paying costs of a hearing under section 571.018. See id.

We must construe section 574.031(i) in the context of the Texas Mental Health Code’s
general cost provisions. See Texas Workers’ Compensation Ins. Fund v. Del Indus., Inc.,35 S.W.3d
591, 593 (Tex. 2000) (a statutory provision is not to be construed in isolation but must be considered
in the context of the entire statutory scheme). Section 571.018, which generally governs costs for
proceedings under the Texas Mental Health Code and establishes which county is responsible for
the costs of a hearing, provides that “[c]osts under this section include . . . costs and salary
supplements authorized under Sections 574.031(i) and (j).”. TEX. HEALTH & SAFETY CODE ANN.
§ 571.018(c)(5) (Vernon 2003).7 Read in conjunction with section 571.018(c)(5), section 574.031(i)
provides the basis for a court cost, authorizing but not requiring a commissioners court of a county
where a hearing is held to establish a salary supplement court cost.*

3. Questions about the Kerr County Salary Supplement Court Cost’s
   Disposition

7By contrast, section 571.018(c) does not list the expenses authorized by section 574.031(h) as court costs. See
TEX. HEALTH & SAFETY CODE ANN. § 571.018(c) (Vernon 2003). Presumably, a judge who holds a hearing ata location
other than the county courthouse receives reimbursement for the judge’s reasonable and necessary expenses from the
responsible county other than as court costs. See id. § 574.031(h) (providing for the hearing judge to “furnish the
presiding judge of the statutory probate courts or the presiding judge of the administrative region, as appropriate, an
accounting of the expenses for certification. The presiding judge shall provide a certification of expenses approved to
the county judge responsible for payment of costs under Section 571.018.”); see also id. § 571.018(g) (“A judge who
holds hearings at locations other than the county courthouse is entitled to additional compensation as provided by
Sections 574.031(h) and (i).”).

8In 1997, a bill amending section 574.031(i) would have provided that the commissioners court of the county
responsible for the costs of the hearing under section 571.018(a) sets the salary supplement and pays it directly to the
judge. This language did not appear in the enrolled version of the bill. Compare Tex. H.B. 591, 75th Leg., R.S. (1997)
(Senate Comm. Report) with id. (Enrolled version).

With respect to these provisions, you first ask whether the Kerr County $10
“judicial salary supplement fee” must be paid to the judge who conducts mental health commitment
hearings:

Because Kerr County has adopted a salary supplement under
the provisions of § 574.031(i) and such mental health hearings are
held at locations other than the county courthouse, must the salary
supplement as imposed be paid to the judge holding such hearings at
locations other than the county courthouse as directed by § 571.018(g), or may the county withhold payment of such funds to
such judge?

Request Letter, supra note 1, at 3.

By the statutes’ plain terms, when the commissioners court has established a salary
supplement court cost under sections 571.018(c)(5) and 574.031(i), the only authorized purpose of
the court cost is to pay a salary supplement to a judge who holds hearings at locations other than the
county courthouse. See TEX. HEALTH & SAFETY CODE ANN. §§ 571.018(c)(5) (Vernon 2003)
(listing salary supplement as a court cost), 574.031(i) (“A judge who holds hearings at locations
other than the county courthouse also may receive a reasonable salary supplement in an amount set
by the commissioners court.”) (emphasis added). Moreover, section 571.018(g) expressly provides
that “[a] judge who holds hearings at locations other than the county courthouse is entitled to
additional compensation as provided by Sections 574.031(h) and (i).” Id. § 571.018(g) (emphasis
added). The Code Construction Act provides that the phrase “‘is entitled to’ creates or recognizes
a right.” TEX. GOV’T CODE ANN. § 311.016(4) (Vernon 1998) (“The following constructions apply
unless the context in which the word or phrase appears necessarily requires a different construction
or unless a different construction is expressly provided by statute... .”). Accordingly, salary
supplement court costs collected by Kerr County must be used to pay a salary supplement as
provided by section 574.031(i).

You also ask about the county’s authority to reduce the judge’s salary by the amount of the
salary supplement:

If the county is required to pay such salary supplement to the
judge and further because § 574.031(i) provides that the same is a
“supplement” and § 571.018(g) provides that the judge is entitled to
the same as “additional compensation,” is it proper for the
Commissioners Court to reduce or offset the judge’s salary in an
amount equal to such salary supplement as a condition of approving
the payment of such salary supplement?

Request Letter, supra note 1, at 3. Your letter indicates that the salary reduction or offset was an
express component of the county judge’s annual salary in the officially adopted county budget. See
id. at 2 (stating that the commissioners court “approved payment of . . . [the] salary supplement to

the judge in the budget; however, such approval was on the express condition that the judge’s salary
to be paid by Kerr County should be reduced by an amount equal to such approved salary supplement
in the County Court budget, and reduced the judge’s salary accordingly’).

Section 571.018(g) of the Health and Safety Code directs that a judge who holds a hearing
at locations other than the county courthouse is entitled to receive a salary supplement as additional
compensation “as provided by” section 574.031(i). See TEX. HEALTH & SAFETY CODE ANN.
§ 571.018(g) (Vernon 2003). Therefore, when a commissioners court has set a salary supplement
court cost under sections 571.018(c)(5) and 574.031(i), see id. §§ 571.018(c)(5), 574.031(i), the
court cost must be used to fund a salary supplement. See supra pp. 7-8. However, these Health and
Safety Code provisions are silent with respect to whether a commissioners court, in setting the
county judge’s annual salary under the Local Government Code, may condition the judge’s receipt
of the salary supplement on a salary reduction equal in amount to the salary supplement. We
construe the Health and Safety Code provisions to prohibit a commissioners court from doing so,
for three reasons.

First, such a salary reduction would be tantamount to the commissioners court directing that
the county retain and expend for general county purposes amounts collected as salary supplement
court costs. Because these statutes do not authorize a county that has established a salary supplement
court cost to use such costs for any purpose other than to pay a salary supplement, the statutes must
be construed to prohibit such a salary reduction. See TEX.GOV’T CODE ANN. §§ 311.021(3) (Vernon
1998) (in enacting a statute, it is presumed that a just and reasonable result is intended), 311.023 (“In
construing a statute, . . . a court may consider among other matters the . . . object sought to be
attained” and the “consequences of a particular construction[.]”).

Second, the legislature provided in section 574.031(h) and (i) for the expenses and to
supplement the salary of a judge who holds hearings outside the county courthouse, creating an
incentive for judges to do so. See TEX. HEALTH & SAFETY CODE ANN. § 574.031(h)-(i) (Vernon
2003). Construing the statutes to permit a salary offset would defeat that purpose.

Finally, the section 574.031(j) “judge’s services fee,” which is not contingent on the hearing
location, appears to be intended to reimburse a county for the cost of providing its judge’s services
to other counties. See id. § 574.031(j) (“Notwithstanding other law, a judge who holds a hearing
under this section may assess for the judge’s services a fee in an amount not to exceed $50 as a court
cost against the county responsible for the payment of the costs of the hearing under Section
571.018.”).’ If the statutes were construed to permit a county to offset the judge’s annual salary in

9See also TEX. CONST. art. XVI, § 61 (providing that county officers must be compensated on a salary basis);

TEX. LOC. GOV’T CODE ANN. §§ 154.002 (Vernon 1999) (“A district, county, or precinct officer who is paid on a salary
basis receives the salary instead of all fees, commissions, and other compensation the officer would otherwise be
authorized to keep, except as otherwise provided by this subchapter.”), 154.003 (“A district, county, or precinct officer
who is paid an annual salary shall charge and collect in the manner authorized by law all fees, commissions, and other
compensation permitted for official services performed by the officer. The officer shall dispose of the collected money
as provided by Subchapter B, Chapter 113.”), Cf. Tex. Att’y Gen. Op. No. JC-0364 (2001) at 7 (Health and Safety Code
(continued...)

an amount equal to the salary supplement, the county would be permitted, in practical effect, to retain
salary supplement fees in addition to judge’s services fees. This would convert the salary
supplement fee, an incentive for the judge to hold the hearing outside the county courthouse, into
a second fee to reimburse the county for its judge’s services. The statutes must be construed to avoid
authorizing a responsible county to be charged duplicative fees. See TEX. GOV’T CODE ANN.
§§ 311.021(3) (Vernon 1998) (in enacting a statute, it is presumed that a just and reasonable result
is intended), 311.023 (‘In construing a statute, . . . a court may consider among other matters the
... object sought to be attained” and the “consequences of a particular construction[.]”); see also
Tex. Att’y Gen. Op. No. JC-0364 (2001) at 7 (concluding that county may not charge separately for
costs intended to be encompassed within prosecutor’s fees: “The costs that the prosecutor’s office
incurs in preparing documents necessary to conduct these hearings are encompassed within the
phrase ‘prosecutor’s fees.’ Section 574.031 (k) plainly limits the fee for a prosecuting attorney to ‘an
amount not to exceed $50.””).

We note that a commissioners court sets the county judge’s annual salary pursuant to chapter
152, subchapter B of the Local Government Code in conjunction with adopting the annual county
budget. See TEX. LOC. GOV’T CODE ANN. §§ 152.011, .013 (Vernon 1999); see also id. §§ 152.014-
.016 (salary grievance procedure), 152.017 (excepted positions); Tex. Att’y Gen. Op. No. MW-110
(1979) at 2 (concluding that a county judge’s salary was set pursuant to the statutory predecessor to
Local Government Code, chapter 152, subchapter B). Once the salary is set, the commissioners
court may not change it until the court adopts the next annual budget. See Tex. Att’y Gen. Op. No.
GA-0162 (2004) at 2. While section 152.012 prohibits a commissioners court from setting an
officer’s or employee’s salary below the amount in effect for the position as of a certain date, chapter
152, subchapter B does not preclude a commissioners court from setting the county judge’s annual
salary at an amount less than the judge’s salary for the prior year.

Thus, while a commissioners court may not offset a county judge’s annual salary by the
amount of a Mental Health Code salary supplement, the fact that a county judge is entitled to receive
a salary supplement under the Mental Health Code does not forever immunize the county judge from
a salary reduction. A commissioners court may reduce the county judge’s annual salary under
chapter 152, subchapter B of the Local Government Code, but the salary reduction may not be
related to salary supplements the commissioners court expects the judge to receive. For example,
the Mental Health Code provisions would not preclude a commissioners court from reducing the
county judge’s salary in connection with across-the-board salary reductions.

9(...continued)

section 574.031(k) fees do not supplement prosecutor salaries and must be deposited with the county treasurer according

to section 113.021 of the Local Government Code).

SUMMARY

The Kerr County constitutional county court and county court
at law have concurrent jurisdiction over proceedings under the Texas
Mental Health Code. Because an application for court-ordered
mental health services may be filed with the county clerk in the
county in which the proposed patient resides, is found, or is already
receiving mental health services by court order or under subchapter
A of chapter 573, a court may have jurisdiction over and be required
to hear a matter involving a patient who resides in another county.
The Texas Mental Health Code does not generally require a court in
a county where a state hospital is located to hear matters involving
patients who are receiving services at the hospital pursuant to the
order of a court in another county. The Texas Mental Health Code
permits but does not require a court to hold a proceeding for court-
ordered mental health services at the state hospital in the county or
other location outside the county courthouse.

Sections 571.018(c)(5) and 574.031(i) of the Health and
Safety Code authorize a commissioners court to set a court cost to pay
a salary supplement to a judge who holds hearings at locations other
than the county courthouse. Section 571.018(g) directs that a judge
who holds hearings at locations other than the county courthouse is
entitled to receive a salary supplement as provided by section
574.031(i) as additional compensation. A commissioners court that
has set a salary supplement court cost may not withhold the salary
supplement from a judge who holds hearings at locations other than
the county courthouse or reduce the judge’s salary in an amount equal
to the salary supplement.

Very truly yours,

GREG ABBOTT
Attorney General of Texas

BARRY R. MCBEE
First Assistant Attorney General

DON R. WILLETT
Deputy Attorney General for Legal Counsel

NANCY S. FULLER
Chair, Opinion Committee

Mary R. Crouter
Assistant Attorney General, Opinion Committee