Does a Texas county have to pay assistant prosecutors longevity pay even if the state doesn't reimburse it?

Plain-English summary

A county prosecutor asked three questions about a new law requiring counties to pay assistant prosecutors longevity pay. The Attorney General concluded that the county must pay the supplement even if the state has not funded its reimbursement, that the county may not credit existing longevity pay against the new supplement, and that the first four years of service count in the calculation.

House Bill 178, enacted in 2001 and effective January 1, 2002, added subchapter D to chapter 41 of the Government Code. Under it, an assistant prosecutor who has accrued at least four years of lifetime service is entitled to a monthly longevity supplement of $20 for each year of lifetime service credit. The county must pay the supplement out of its general fund and may not reduce the prosecutor's salary to offset it, and the state is directed to reimburse the county.

On the first question, the opinion explained that whether the legislature had actually appropriated enough to reimburse counties was a fact question it could not resolve. But the county's duty to pay did not depend on reimbursement: the statute says the county "shall pay" the supplement from its general fund, and "shall" is generally mandatory. Duties the legislature imposes on local officials must be performed whether or not enough money is provided. If the legislature did not fund the reimbursement, the county still had to pay and had no claim against the state for the shortfall.

On the second question, the opinion concluded the county could not credit longevity pay it already provided to county employees generally against the $20-per-month supplement. Longevity pay is not just a benefit; it is an element of salary. Because the statute forbids reducing an assistant prosecutor's salary to offset the supplement, crediting part of existing compensation would be indistinguishable from the offset the statute prohibits. The supplement must be paid over and above the prosecutor's current pay.

On the third question, the opinion concluded the first four years of service count in the calculation. The statute sets the monthly amount at $20 for each year of lifetime service credit, with no exception for the first four years, and the office could not read in an exception the legislature did not write. The four-year mark is the eligibility trigger, not a carve-out: the increase is effective beginning the month after the fourth year of lifetime service credit accrues.

Currency note

This opinion was issued in 2001. Subsequent statutory amendments, court decisions, or later Attorney General 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. Subchapter D of chapter 41 of the Government Code has been amended since 2001, so the dollar amount, eligibility threshold, and reimbursement terms described here may no longer be current.

What the opinion meant for those who asked

The Bexar County Criminal District Attorney (what the opinion held): The opinion answered all three questions. The county must pay the longevity supplement from its general fund regardless of state reimbursement; it may not credit existing county longevity pay against the supplement; and the first four years of service count, with the supplement effective the month after the fourth year accrues.

Counties and county budget officials (what the opinion held for them): The opinion treated the supplement as a mandatory general-fund obligation that does not hinge on whether the state appropriation covers it. It noted that if the legislature did not fund the reimbursement, the county had no claim against the state for the unreimbursed amount.

Assistant prosecutors (what the opinion held for them): The opinion read the law to require the $20-per-month-per-year supplement on top of current pay, with no offset against existing compensation, and to count all years of lifetime service credit, including the first four, in the calculation.

Common questions

Does the county have to pay this even if the state doesn't reimburse it?
The opinion concluded yes. The statute says the county "shall pay" the supplement from its general fund, which is mandatory, and a legislative duty on local officials must be carried out whether or not enough money is provided. The county has no claim against the state for any unfunded reimbursement.

Can the county count longevity pay it already gives against this supplement?
No. The opinion explained that longevity pay is an element of salary, and the statute bars reducing salary to offset the supplement. Crediting existing pay would be the same as the prohibited offset, so the $20-per-month amount must be paid in addition to current compensation.

Do the first four years of service count toward the pay?
Yes. The opinion concluded the statute counts every year of lifetime service credit at $20 per month, with no exclusion for the first four years. The four-year mark is when eligibility begins, effective the month after the fourth year accrues, not a period that is left out of the math.

Background and statutory framework

House Bill 178, enacted by the 77th Legislature, added subchapter D to chapter 41 of the Government Code, effective January 1, 2002. Act of May 15, 2001, 77th Leg., R.S., ch. 378, 2001 Tex. Sess. Law Serv. 663 (to be codified at Tex. Gov't Code Ann. §§ 41.251-.257). An assistant prosecutor with at least four years of accrued lifetime service is entitled to a longevity supplement. Tex. Gov't Code Ann. § 41.252(a). The monthly amount is $20 for each year of lifetime service credit. Id. § 41.253(a). The increase is effective beginning the month after the fourth year of lifetime service credit accrues. Id. § 41.253(b). The county shall pay the supplement out of its general fund and may not reduce the assistant prosecutor's salary to offset it; the state shall reimburse the county. Id. § 41.255(a), (b), (d).

The opinion treated "shall pay" as mandatory. Mutchler v. Tex. Dept. of Pub. Safety, 681 S.W.2d 282, 284 (Tex. App.-Austin 1984, no writ). Where the legislature does not fund a mandate, a county has no claim against the state. Socorro Indep. Sch. Dist. v. State Bd. of Educ., 968 S.W.2d 547, 553 (Tex. App.-Austin 1998, pet. denied). And courts, and this office, will not read into a statute exceptions it does not contain. Stubbs v. Lowrey's Heirs, 253 S.W.2d 312, 313 (Tex. Civ. App.-Eastland 1952, writ ref'd n.r.e.).

Citations

Statutory provisions:

• Tex. Gov't Code Ann. §§ 41.251-.257
• Tex. Gov't Code Ann. § 41.252(a)
• Tex. Gov't Code Ann. § 41.253(a)
• Tex. Gov't Code Ann. § 41.253(b)
• Tex. Gov't Code Ann. § 41.255(a), (b), (d)
• Act of May 15, 2001, 77th Leg., R.S., ch. 378, 2001 Tex. Sess. Law Serv. 663

Cases:

• Mutchler v. Tex. Dept. of Pub. Safety, 681 S.W.2d 282 (Tex. App.-Austin 1984, no writ)
• Socorro Indep. Sch. Dist. v. State Bd. of Educ., 968 S.W.2d 547 (Tex. App.-Austin 1998, pet. denied)
• Stubbs v. Lowrey's Heirs, 253 S.W.2d 312 (Tex. Civ. App.-Eastland 1952, writ ref'd n.r.e.)

Source

• Landing page: https://www.texasattorneygeneral.gov/opinions/john-cornyn/jc-0438
• Original PDF: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/2001/jc0438.pdf

Original opinion text

Best-effort transcription from the official scanned PDF. Minor character-level errors from the source OCR have been corrected; the linked PDF is authoritative.

OFFICE OF THE ATTORNEY GENERAL - STATE OF TEXAS

JOHN CORNYN

December 3, 2001

The Honorable Susan D. Reed
Bexar County Criminal District Attorney
300 Dolorosa, Fifth Floor
San Antonio, Texas 78205-3030

Opinion No. JC-0438

Re: Longevity pay for certain assistant prosecutors (RQ-0397-JC)

Dear Ms. Reed:

You have asked this office several questions regarding a recent amendment to chapter 41 of the Government Code, which adds subchapter D thereto mandating longevity pay for assistant prosecutors who have accrued at least four years of service.[1] We conclude that the statute in question requires the county to make this payment whether or not the legislature has appropriated enough for the county to be reimbursed, that the payments may not be offset against any other portion of an employee's compensation, and that the first four years of accrued service are counted in the calculation of the longevity pay.

House Bill 178, enacted by the 77th Texas Legislature, adds subchapter D to chapter 41 of the Government Code. See Act of May 15, 2001, 77th Leg., R.S., ch. 378, 2001 Tex. Sess. Law Serv. 663 (to be codified at Tex. Gov't Code Ann. §§ 41.251-.257). House Bill 178 is effective on January 1, 2002, see id. at 665, and we will hereinafter refer to it as it will appear codified in the Government Code. Pursuant to this statute, an assistant prosecutor who has accrued at least four years of lifetime service is entitled to receive a longevity supplement. See Tex. Gov't Code Ann. § 41.252(a). "The monthly amount of longevity pay is $20 for each year of lifetime service credit." Id. § 41.253(a) (emphasis added). The county "shall pay" this supplement out of its general fund and "may not reduce the salary of the assistant prosecutor to offset the longevity pay supplement." Id. § 41.255(a), (b). "The state shall reimburse a county for amounts expended for longevity pay supplements under this subchapter." Id. § 41.255(d).

You ask first whether the county is obligated to pay the supplement whether or not the legislature has allocated sufficient funds to reimburse it. See Request Letter, note 1, at 1. Based upon your reading of the fiscal note accompanying the bill, you believe that there are not sufficient funds allocated for this purpose. See id. To decide whether in fact there were not sufficient funds so allocated would require factual determinations of a sort this office does not make in the opinion process. See Tex. Att'y Gen. Op. Nos. JC-0020 (1999) at 2; M-187 (1968) at 3; O-2911 (1940) at 2. In the event the legislature has not appropriated sufficient funds to recompense the counties for such payments, the counties have no claim against the state for them. See Mutchler v. Tex. Dept. of Pub. Safety, 681 S.W.2d 282, 284-85 (Tex. App.-Austin 1984, no writ); Socorro Indep. Sch. Dist. v. State Bd. of Educ., 968 S.W.2d 547, 553 (Tex. App.-Austin 1998, pet. denied) ("If the Legislature did not see fit to provide funding for this mandate, [the court] cannot do it for them.").

On the other hand, the statute does not, as you correctly point out, "make a county's obligation to pay a longevity supplement contingent on reimbursement from the state." Request Letter, supra note 1, at 1. Rather, it requires that "the county shall pay [the supplement] . . . out of the county general fund." Tex. Gov't Code Ann. § 41.255(a). It is a well-established principle of statutory interpretation that "while the word 'shall,' when used in a statute may be and frequently is directory, the word is generally construed to be mandatory . . . ." Mutchler, 681 S.W.2d at 284. Moreover, the bill analysis for House Bill 178 confirms that the language is so intended: "The bill requires the county to pay a longevity pay supplement out of the county general fund and prohibits the county from reducing the salary of the assistant prosecutor to offset the longevity pay supplement." House Comm. on Judicial Affairs, Bill Analysis, Tex. H.B. 178, 77th Leg., R.S., (2001) (emphasis added). As this office has recently reiterated, duties imposed on local officials by the legislature must be performed regardless of whether sufficient resources are made available. See Tex. Att'y Gen. Op. No. JC-413 (2001) at 1; see also Tex. Att'y Gen. Op. No. H-595 (1975) at 2 (statute imposing duty on sheriff to execute process "is absolute in its terms and an inadequate operating budget will not excuse a sheriff's failure" to comply with statutory duties).

You next ask whether you may credit longevity pay currently provided pursuant to a county program to county employees generally to the $20 per month per service year payment to assistant prosecutors mandated by House Bill 178. See Request Letter, supra note 1, at 1. You may not. Section 41.253(a) requires that the county supplement assistant prosecutors' pay by $20 per month for each year of lifetime service credit. See Tex. Gov't Code Ann. § 41.253(a). Section 41.255(b) forbids the county to reduce the salary of an assistant prosecutor "to offset the longevity pay supplement." Id. § 41.255(b). Longevity pay is not merely a benefit, but is an element of salary. See Tex. Att'y Gen. LO-96-007, at 2 ("Longevity pay, an incremental increase in salary based on length of service, has been held to be a part of compensation.") (emphasis added) (citation omitted); Tex. Att'y Gen. LO-97-010, at 4 (longevity pay of Texas Youth Commission teachers included within salary rate). Reading sections 41.253(a) and 41.255(b) together, the statute requires the county to pay each assistant prosecutor who has accrued sufficient service time $20 per month more for each year of service time; that $20 per month is over and above the assistant prosecutor's present rate of compensation. Any crediting of some part of the prosecutor's present compensation is in our view indistinguishable from the offsetting the statute by its terms forbids.

Finally you ask whether "the first four years of a prosecutor's service count in the calculation of longevity pay." Request Letter, supra note 1, at 1. They do. The statute provides that "[t]he monthly amount of longevity pay is $20 for each year of lifetime service credit." Tex. Gov't Code Ann. § 41.253(a). No such phrase as "excluding the first four years" is to be found here, and this office has no power to supply such an emendation. "The courts will not read into a statute exceptions which are not embodied therein." Stubbs v. Lowrey's Heirs, 253 S.W.2d 312, 313 (Tex. Civ. App.-Eastland 1952, writ ref'd n.r.e.). Nor is it the case, as your letter suggests, that "[a] prosecutor can't receive the supplement until after the fifth year," by which we assume you mean after the accrual of five, rather than four full years. See Request Letter, supra note 1, at 2. The statutory directive is clear and unambiguous: "The increase is effective beginning with the month following the month in which the fourth year of lifetime service credit is accrued." Tex. Gov't Code Ann. § 41.253(b) (emphasis added).

                                    SUMMARY

            Subchapter D of chapter 41 of the Government Code, effective January 1, 2002, requires a county to pay a longevity supplement of $20 per month for each year of lifetime service credit to assistant prosecutors who have accrued four years of such credit, regardless of whether the legislature has appropriated sufficient funds to recompense the county for such payments. Such payments may not be offset against any other portion of an employee's compensation. The first four years of service time are to be counted in the calculation of the longevity pay.

                                           JOHN CORNYN
                                           Attorney General of Texas

HOWARD G. BALDWIN, JR.
First Assistant Attorney General

NANCY FULLER
Deputy Attorney General - General Counsel

SUSAN D. GUSKY
Chair, Opinion Committee

James E. Tourtelott
Assistant Attorney General, Opinion Committee