Did Texas appellate court law clerks and briefing attorneys get the state employee pay raise?

Plain-English summary

The 2001 General Appropriations Act gave most state employees an across-the-board pay raise of four percent (at least $100 a month). Section 10.12 of article IX funded that raise and listed who was excluded, such as elected officials and appellate and district judges. The Office of Court Administration asked the Attorney General whether the raise reached the briefing attorneys and law clerks who work for the state's appellate courts.

The opinion concluded that it did, subject to one condition. Those employees were not on the statute's exclusion list. The Position Classification Act and the salary tables in part 2 of article IX, which implement that act, list judicial positions, including Court Law Clerk and the Attorney classifications used by the appellate courts. The salary tables even set two rates for each salary group, one for employees eligible for the September 1 raise and one for those not eligible, which is how the four percent increase is built into the appropriations. So eligible briefing attorneys and law clerks were entitled to the raise under section 10.12.

The condition was the length-of-service rule in section 10.12(i). To get the raise on September 1, 2001, an employee had to have worked for the state at least twelve continuous months before that date; to get it by September 1, 2002, the employee had to have started before March 1, 2002. The opinion flagged a practical problem for many court law clerks: a recent law graduate serving a one-year term from September 1 to August 31 would never satisfy either rule, because the term ends before the qualifying date arrives, so that clerk would not actually receive the raise even though the position was covered.

A brief from the chairs of the Senate Finance and House Appropriations committees argued that the Legislature meant to give appellate court attorneys and clerks a larger "targeted" raise, averaging 13.5 percent, folded into the block-grant appropriations to the courts, rather than the general four percent. The opinion did not adopt that view. Because it could determine the legislative purpose from the text and the appropriations pattern implementing the Position Classification Act, it applied the plain meaning of the act and declined to use committee materials to depart from that conclusion.

Currency note

This opinion was issued in 2002. 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. This opinion interpreted a single biennium's General Appropriations Act, which expired long ago; it has no application to any current pay raise, and the Government Code provisions it cites have been amended since 2002. Treat it purely as a record of how the 2001 act was read.

What the opinion meant for those who asked

The Office of Court Administration, which asked (what the opinion held): The opinion concluded that appellate court briefing attorneys and law clerks were entitled to the four percent raise under section 10.12 if they met the section 10.12(i) length-of-service requirements, because they fell within the position classification lists and salary tables and were not on the statute's exclusion list.

Appellate court law clerks on one-year terms (what the opinion pointed out for them): The opinion noted that a clerk serving a single year from September 1 to August 31 could not meet the continuous-service rule and so would not receive the raise, even though the position itself was covered.

The appropriations committees that submitted a brief (how the opinion treated their position): The opinion declined to follow the committee brief's view that the courts' funding was meant to provide a larger targeted raise, because the legislative purpose could be determined from the statutory text and the appropriations pattern, so committee materials could not override the plain meaning.

Common questions

Did appellate court law clerks and briefing attorneys get the four percent raise?
The opinion concluded they were entitled to it under section 10.12, but only if they met the length-of-service requirements. The positions were on the classification lists and salary tables and were not excluded by the statute.

What was the length-of-service requirement?
To receive the raise on September 1, 2001, an employee had to have been employed by the state for at least twelve continuous months before that date. An employee who started later but before March 1, 2002 became eligible on September 1, 2002.

Why might a law clerk still not get the raise?
Because of timing. The opinion explained that a clerk on a one-year term beginning September 1 would have finished the term before reaching either qualifying date, so the clerk could not satisfy the continuous-service rule despite holding a covered position.

Didn't the Legislature intend a bigger 'targeted' raise for court attorneys instead?
A committee brief argued so, citing block-grant funding to the courts averaging a 13.5 percent raise. But the opinion concluded the statutory text and the appropriations pattern controlled, so it applied the four percent provision and did not rely on committee materials to reach a different result.

Background and statutory framework

Section 10.12 of article IX of the 2001 General Appropriations Act defined a "salary increase" as a four percent annual increase (minimum $100 per month), appropriated funds to the Comptroller to pay it for employees of state agencies, and excluded statewide elected officials, appellate and district judges, district and criminal district attorneys, and certain others. General Appropriations Act, 77th Leg., R.S., S.B. 1, art. IX, § 10.12 (2001). To receive it, an employee had to satisfy the length-of-service rules of section 10.12(i).

The Position Classification Act, Tex. Gov't Code Ann. ch. 654 (Vernon 1994 & Supp. 2002), provides the salary structure for specified state employments. Id. § 654.002 (Vernon 1994). Its plan applies to salaried employments in the judiciary, except for judges, district attorneys, and assistant district attorneys. Id. § 654.011(a) (Vernon Supp. 2002). The plan does not apply to constitutional officers, elected officers, or officers appointed by the governor, id. § 654.012 (Vernon Supp. 2002), which is why appellate and district judges, who are elected or appointed by the governor under article V and article IV, section 12 of the Constitution, are outside the plan and are listed as ineligible in section 10.12(d). But other judicial-branch employees are not excepted from the plan, and section 10.12 does not make them ineligible. The Legislature may also set judicial-branch compensation directly in the appropriations act. See Tex. Gov't Code Ann. §§ 22.301 (Vernon 1988), 659.011 (Vernon 1994 & Supp. 2002), 659.012 (Vernon Supp. 2002).

Part 2 of article IX implements the plan, and its classification lists include judicial positions such as Court Law Clerk and the Attorney I through VI classifications used by the appellate courts. General Appropriations Act, 77th Leg., R.S., S.B. 1, art. IX, § 2.01 (2001). The salary tables set two rates per salary group, one for employees eligible for the September 1 increase and one for those not eligible, building the four percent raise into the appropriations. The opinion concluded that eligible briefing attorneys and law clerks were therefore entitled to the increase. It declined to rely on the appropriations committees' brief, invoking section 6.05's instruction to consult committee proceedings only when legislative purpose cannot be determined from the pattern of appropriations, and the plain-meaning rule of Fleming Foods of Tex., Inc. v. Rylander, 6 S.W.3d 278, 284 (Tex. 1999). Id. § 6.05.

Citations

Constitutional and statutory provisions:

• Tex. Const. art. V, §§ 2, 4, 6, 7, 28
• Tex. Const. art. IV, § 12
• General Appropriations Act, 77th Leg., R.S., S.B. 1, art. IX, § 10.12 (2001)
• General Appropriations Act, 77th Leg., R.S., S.B. 1, art. IX, § 2.01 (2001)
• General Appropriations Act, 77th Leg., R.S., S.B. 1, art. IX, § 6.05 (2001)
• General Appropriations Act, 77th Leg., R.S., S.B. 1, art. IV (2001)
• Tex. Gov't Code Ann. ch. 654 (Vernon 1994 & Supp. 2002)
• Tex. Gov't Code Ann. § 654.002 (Vernon 1994)
• Tex. Gov't Code Ann. § 654.011(a) (Vernon Supp. 2002)
• Tex. Gov't Code Ann. § 654.012 (Vernon Supp. 2002)
• Tex. Gov't Code Ann. § 22.301 (Vernon 1988)
• Tex. Gov't Code Ann. § 659.011 (Vernon 1994 & Supp. 2002)
• Tex. Gov't Code Ann. § 659.012 (Vernon Supp. 2002)

Cases:

• Fleming Foods of Tex., Inc. v. Rylander, 6 S.W.3d 278 (Tex. 1999)

Source

• Landing page: https://www.texasattorneygeneral.gov/opinions/john-cornyn/jc-0456
• Original PDF: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/2002/jc0456.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

January 28, 2002

Mr. Jerry L. Benedict
Administrative Director
Office of Court Administration
P.O. Box 12066
Austin, Texas 78711-2066

Opinion No. JC-0456

Re: Whether the state employee pay raise effective September 1, 2001 applies to appellate court briefing attorneys and law clerks (RQ-0428-JC)

Dear Mr. Benedict:

You ask whether a provision of the 2001 General Appropriations Act that grants an across-the-board pay raise to state employees applies to briefing attorneys and law clerks with the appellate courts.[1] Briefing attorneys and law clerks with the appellate courts are entitled to the four percent salary increase authorized by section 10.12 of article IX, General Appropriations Act if they meet the length-of-service requirements stated in section 10.12(i) of article IX.

You ask whether the briefing attorneys and law clerks of the state's appellate courts are to receive the four percent increase in annual salary for employees of state agencies provided by section 10.12, article IX, of the current General Appropriations Act. This section provides in part:

Sec. 10.12. Appropriation for a Salary Increase.

(a) As used in this section, 'salary increase' shall mean a 4% increase in annual salary with a minimum of $100 per month increase in salary.

(b) The Comptroller of Public Accounts is hereby appropriated an amount estimated to be $169,036,471 out of the General Revenue Fund, an amount estimated to be $22,682,459 out of General Revenue - Dedicated, and an amount estimated to be $131,510,143 out of other funds and accounts to fund a salary increase described in Subsection (a) of this Section for employees of state agencies, including employees of the Higher Education Coordinating Board, as such a salary increase is reflected in the salary rates authorized elsewhere in this Act.[2]

(c) Non-faculty Employees at Institutions of Higher Education. . . .

(d) This section shall not apply to statewide elected officials, justices and judges of the appellate and district courts, district attorneys, criminal district attorneys, county attorneys performing the duties of a district attorney, or the compensatory per diem of board or commission members.

(g) The Comptroller of Public Accounts shall promulgate rules and regulations as necessary to administer this section. . . .

(h) This section does not authorize an increase of classified salary rates or exempt salary rates above the rates listed in the applicable schedule in this Act.

(i) In order to receive the salary increase described in Subsection (a) of this Section, any employee must meet the following requirements:

    (1) An employee employed by the state for at least twelve (12) continuous months prior to September 1, 2001 is eligible for the salary increase on September 1, 2001.

    (2) An employee who is not employed for twelve continuous months prior to September 1, 2001, and who begins work with the state prior to March 1, 2002 is eligible for the salary increase on September 1, 2002.

    (3) An employee who begins work with the state between March 1, 2002 and August 31, 2002 is eligible for the salary increase on March 1, 2003.

    (4) [relating to non-faculty employees of institutions of higher education] . . . .

(k) Funds appropriated in this Section for the salary increase may not be used to fund a salary increase for the following groups: . . . [certain employees at the Texas Department of Criminal Justice and at the Texas Youth Commission].

General Appropriations Act, 77th Leg., R.S., S.B. 1, art. IX, § 10.12, at IX-76-78 (2001), available at http://www.lbb.state.tx.us (footnote added).

The length of service requirements set out in section 10.12(i) are especially relevant to a person holding a temporary position with the courts, such as a recent law school graduate who serves as a law clerk from September 1 of one year to August 31 of the following year. A person currently employed on this schedule would not be able to meet the length of service requirements and, accordingly, would not receive the raise, regardless of whether he or she were otherwise qualified for it. To be eligible for the salary increase on September 1, 2001, a state employee must have been employed for at least twelve continuous months before that date, and to be eligible by September 1, 2002, an individual must have begun work with the state prior to March 1, 2002. Id. §§ 10.12(i)(1), (2). A one-year term of employment that begins on September 1 will have ended by the time the person qualifies under either provision.

Section 10.12 appropriates funds to pay a four percent salary increase for state employees with certain exceptions, none of which apply to appellate court briefing attorneys or law clerks. Its provisions reflect statutes governing state employee compensation and refer to other sections of the appropriations act. Particularly relevant to section 10.12 are the Position Classification Act ("Act"), Tex. Gov't Code Ann. ch. 654 (Vernon 1994 & Supp. 2002), and part 2, article IX of the General Appropriations Act, which includes provisions relating to the Position Classification Act. We will review these provisions to provide a context for understanding section 10.12.

The Position Classification Act is the most important provision governing state employees' compensation, although it is not the only statute authorizing the legislature to provide for the compensation of state employees, including employees of the judiciary, in the appropriations act. See id. §§ 22.301 (Vernon 1988) (salaries of "the clerks, other officers, and employees of the supreme court, court of criminal appeals, and courts of appeals shall be determined by the legislature in its appropriation acts for the support of the judiciary"); 659.011 (Vernon 1994 & Supp. 2002) ("salaries of all state officers and employees are in the amounts provided by the biennial appropriations act"), 659.012 (providing for minimum salaries for justices of the supreme court, justices and chief justices of the courts of appeals, and judges of district courts).

The state position classification plan ("plan") established pursuant to the Position Classification Act "provides the salary structure for specified state employments." Id. § 654.002 (Vernon 1994). Government Code section 654.011 makes it clear that the position classification plan applies to employments in the judiciary:

(a) The position classification plan and the salary rates and provisions in the General Appropriations Act apply to all . . . salaried employments in the state departments, agencies, or judicial entities specified in the articles of the General Appropriations Act that appropriate money to:

        (1) general government agencies;

        (2) health and human services agencies;

        (3) the judiciary, except for judges, district attorneys, and assistant district attorneys;

        (4) public safety and criminal justice agencies; [other classes of state agencies;]

        (8) agencies of public education[.]

Id. § 654.011(a) (Vernon Supp. 2002).

Section 654.012 of the Government Code states that the plan does not apply to certain officers and employees, including a constitutional officer, an elected officer, and an officer appointed by the governor. See id. § 654.012 (Vernon Supp. 2002). Justices and judges of the state appellate courts and of district courts are elected to office or appointed to a vacancy by the governor. See Tex. Const. art. V, §§ 2 (Supreme Court Justices); 4 (Court of Criminal Appeals Judges); 6 (Justices of Courts of Appeals); 7 (district judges); 28 (governor fills vacancies in office of judge of state appellate courts and district courts); see also art. IV, § 12 (vacancies in state or district offices to be filled by appointment of the governor). Thus, the salaries of such judges are not governed by the position classification plan. Section 10.12 of article IX, General Appropriations Act, states that these judges are ineligible for the salary increase that it provides. See General Appropriations Act, 77th Leg., R.S., S.B. 1, art. IX, § 10.12(d), at IX-77 (2001), available at http://www.lbb.state.tx.us (section 10.12 does not apply to statewide elected officials, justices and judges of the appellate and district courts); see also Tex. Gov't Code Ann. § 659.012 (Vernon Supp. 2002) (providing for judicial salaries). However, employees of the judicial branch are not excepted from the state classification plan by any provision of Government Code chapter 654, nor does section 10.12 make them ineligible for the pay increase it authorizes. Cf. General Appropriations Act, 77th Leg., R.S., S.B. 1, art. IX, § 10.12(k), at IX-78 (2001), available at http://www.lbb.state.tx.us (exception for certain employee groups of Texas Department of Criminal Justice and the Texas Youth Commission).

Section 10.12(b) refers to the appropriation act provisions that implement the state position classification plan. These are found in article IX, part 2 of the General Appropriations Act, which provides in its introductory section:

Except as otherwise specifically provided in this Act, expenditures of appropriations for the salaries of employees, in classified positions in all affected agencies appropriated funds by this Act [other than certain entities related to education] . . . , are governed by Chapter 654, Government Code (the Position Classification Act), Chapter 659, Government Code, and this section, including the following lists of position classification numbers, position titles, salary group allocations, and rates of pay in classification salary schedules as provided by this Article.

See General Appropriations Act, 77th Leg., R.S., S.B. 1, art. IX, § 2.01, at IX-1 (2001), available at http://www.lbb.state.tx.us.

The lists of classified employments in part 2 include positions in the judiciary: Appellate Court Peace Officer, Court Law Clerk, Chief Deputy Clerk, and Clerk of the Court. Id. at IX-14. The list also includes employments classified as Attorney I through VI, id. at IX-13-14, and information submitted to us shows that persons in the "Attorney" classification are employed by the appellate courts.[3] The appellate court briefing attorneys and law clerks you inquire about are within the article IX, part 2 provisions relating to the position classification plan.

The salary rate tables provide two salaries for each salary group-one for employees not eligible for the salary increase beginning September 1 and one for employees who are eligible for the salary increase. See General Appropriations Act, 77th Leg., R.S., S.B. 1, art. IX, § 2.01, at IX-27 (2001), available at http://www.lbb.state.tx.us; see also id. § 10.12(i) at IX-78 (stating eligibility requirements). Thus, part 2 of article IX implements the four percent salary increase authorized by section 10.12(a). Section 10.12(b) appropriates certain amounts of money to the comptroller "to fund a salary increase described in Subsection (a) of this Section for employees of state agencies . . . as such a salary increase is reflected in the salary rates authorized elsewhere in this Act." Id. § 10.12(b) at IX-77 (emphasis added). Because briefing attorneys and law clerks with the appellate courts are included in the position classification lists and salary rate tables found in part 2 of article IX, General Appropriations Act, eligible employees in those positions are entitled to the four percent salary increase authorized by section 10.12 of article IX, General Appropriations Act. To be eligible, a particular briefing attorney or law clerk must, of course, have complied with the continuous service requirement set out in section 10.12(i).

A brief from the Chairman of the Senate Finance Committee and the Chairman of the House Committee on Appropriations states, however, that the legislature did not intend the four percent state employee pay raise to apply to appellate court attorneys and court law clerks, because the funds appropriated to the Texas Supreme Court and Courts of Appeals were intended to include a pay raise for appellate court attorneys and law clerks averaging 13.5 percent.[4] These court employees were to receive a "targeted"[5] pay raise rather than the general state employee pay raise authorized by section 10.12, and the anticipated pay raise was included in the appropriations made to the appellate courts. These are "block grant" appropriations, which appropriate funds to each court for one or two broad purposes. See General Appropriations Act, 77th Leg., R.S., S.B. 1, art. IV, at IV-1 (2001), available at http://www.lbb.state.tx.us (appropriations to Texas Supreme Court for "Appellate Court Operations" and "Basic Civil Legal Services"); IV-4-11 (2001) (total appropriation to each court of appeals was for "Appellate Court Operations"). The brief informs us that "[t]he block grants for the courts of appeal all included a specific amount of money to be used by the chief justices in their discretion to award above average pay raises instead of the four [percent] appropriated to all other non-targeted state employees,"[6] and that "[t]he Legislature has always given the courts, as a separate branch of government, more leeway in overseeing their budgets than other state agencies."[7] The appropriations to the courts did not identify an amount of money allocated to salaries or raises for appellate court attorneys and law clerks.

Documentation accompanying the brief indicates that pay raises for appellate court attorneys and law clerks were considered in determining the appropriations for each appellate court,[8] but this kind of detail is not found in the text of the appropriation act itself. The General Appropriations Act provides in section 6.05 of article IX that, "[i]n the event an agency cannot determine legislative purpose from the pattern of appropriations, the agency shall seek to determine that purpose from the proceedings of the legislative committees responsible for proposing appropriations for this state." General Appropriations Act, 77th Leg., R.S., S.B. 1, art. IX, § 6.05 at IX-39 (2001), available at http://www.lbb.state.tx.us; see also Fleming Foods of Tex., Inc. v. Rylander, 6 S.W.3d 278, 284 (Tex. 1999) (where statute is unambiguous, plain-meaning rule applies). We have determined a legislative purpose from the pattern of appropriations that implements the Position Classification Act, the general law that "provides the salary structure for specified state employments." Tex. Gov't Code Ann. § 654.002 (Vernon 1994). Accordingly, we may not rely on information from the legislative committee proceedings to depart from our conclusion based on the language of the General Appropriations Act.

                                  SUMMARY

    Briefing attorneys and law clerks with the state appellate courts are entitled to the four percent salary increase authorized by article IX, section 10.12 of the 2001 General Appropriations Act if they meet the length-of-service eligibility requirements stated in article IX, section 10.12(i). General Appropriations Act, 77th Leg., R.S., S.B. 1, art. IX, § 10.12, at IX-76-78 (2001), available at http://www.lbb.state.tx.us.

Yours very truly,

JOHN CORNYN
Attorney General of Texas

HOWARD G. BALDWIN, JR.
First Assistant Attorney General

NANCY FULLER
Deputy Attorney General - General Counsel

SUSAN DENMON GUSKY
Chair, Opinion Committee

Susan L. Garrison
Assistant Attorney General, Opinion Committee