If the legislature gives a Texas district judge a raise mid-year, does the county's court-at-law judge whose pay is tied to it get a raise automatically, and can the county amend an already-adopted budget to pay for it?

Texas AG Opinion JM-1138: Automatic Judge Pay Raise and Mid-Year Budget Amendment

Plain-English summary

Austin County's court-at-law judge had a salary set by statute at least 75 percent of the district judge's state salary in that county. When House Bill 101 of the 71st Legislature raised district judges' pay effective September 1, 1989, partway through the county's fiscal year, the county attorney asked whether the court-at-law judge's linked raise was automatic or had to wait for the commissioners court's annual budget hearing, and, either way, whether the commissioners court could even fund a raise after the year's budget had already been adopted with a lower amount.

The Attorney General concluded the raise was automatic. The Local Government Code provision requiring the commissioners court to set officer salaries at the annual budget hearing did not apply here, because a separate provision exempts judges of courts of record, like the court-at-law judge, from that requirement, and because the judge's pay was tied by statute directly to the district judge's salary rather than set independently by the county. On funding, the opinion pointed to a 1989 amendment that let counties of 225,000 or less population transfer funds between already-budgeted line items without having to declare an emergency, first, and noted that if no transfer was available, the shortfall could simply be added to and paid from the following year's budget.

Currency note

This opinion was issued in 1990. 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 mentioned here.

Common questions

Did the county court-at-law judge's raise require action by the commissioners court?
No. The opinion concluded the raise was by mandate of the legislature and effective September 1, 1989, automatically, because the judge's salary was tied by statute to the district judge's salary and the judge, as a judge of a court of record, was exempt from the general rule requiring commissioners courts to set officer salaries at the budget hearing.

Could the county pay the raise if it had already adopted a budget with a lower salary figure for the judge?
Yes. A 1989 amendment (House Bill 1077) let commissioners courts in counties of 225,000 or less transfer money from one budgeted line item to another without declaring an emergency, which the opinion said could be used to fund the increase.

What if there was no money available anywhere else in the budget to transfer?
The opinion said the judge's claim for the additional salary could instead be included in the following year's budget and paid after that budget's adoption.

Why had this required an "emergency" finding in the past?
Before House Bill 1077, Local Government Code section 111.010 generally required smaller counties to find an emergency before amending an adopted budget, a requirement the opinion said had caused confusion in the past (citing Attorney General Opinions JM-784 and JM-733) and that the legislature specifically addressed by adding the no-emergency transfer option.

Background and statutory framework

Government Code section 25.0102(e) set the Austin County court-at-law judge's salary at not less than 75 percent of the state salary paid to a district judge in that county. House Bill 101 (Acts 1989, 71st Leg., ch. 1258, § 1, at 5074) raised district judges' state salaries effective September 1, 1989. Local Government Code section 152.013 (formerly article 3912k, V.T.C.S.) generally requires the commissioners court to set elected officers' salaries at the annual budget hearing, but section 152.017(1) excepts a judge of a court of record from that requirement, which the opinion found controlling here (citing Attorney General Opinions M-921 (1971) and WW-1095 (1972), and distinguishing WW-110 (1979), which applied a different exception for a commissioners-court presiding judge in a very large county).

On budget amendment, Local Government Code section 111.010, prior to a 1989 amendment, generally limited counties of 225,000 or less to spending strictly within the adopted budget absent an emergency, a rule the opinion noted had generated recurring questions (citing Attorney General Opinions JM-784 (1987) and JM-733 (1987), and 35 D. Brooks, County and Special District Law § 15.11 (Texas Practice 1989)). House Bill 1077 (Acts 1989, 71st Leg., ch. 167, at 549) added subsection (d) to section 111.010, letting a commissioners court transfer budgeted funds between line items by order, without an emergency finding, which the bill analysis described as fixing an "unduly restrictive and cumbersome" prior requirement.

Citations

Statutory provisions:

• TEX. GOV'T CODE § 25.0102(e)
• TEX. LOCAL GOV'T CODE §§ 111.010, 111.010(d), 152.013, 152.017
• Acts 1989, 71st Leg., ch. 1258, § 1, at 5074 (House Bill 101)
• Acts 1989, 71st Leg., ch. 167, at 549 (House Bill 1077)

Prior Attorney General opinions cited: JW-326 (1985); M-921 (1971); WW-1095 (1972); WW-110 (1979); JM-784 (1987); JM-733 (1987).

Source

• Landing page: https://www.texasattorneygeneral.gov/opinions/jim-mattox/jm-1138
• Original PDF: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1990/jm1138.pdf

Original opinion text

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

February 1, 1990

Honorable Daniel W. Leedy
Austin County Attorney
One East Main
Bellville, Texas 77418-1551

Opinion No. JM-1138

Re: Authority of a commissioners court to increase the salary of a county court-at-law judge after adoption of the budget (RQ-1803)

Dear Mr. Leedy:

You ask whether the Austin County Commissioners court has the authority to increase the salary of a county court-at-law judge after the adoption of a budget.

Subsection (e) of section 25.0102 of the Government Code sets the annual salary for the county court-at-law judge in Austin County in an amount "that is at least equal to 75 percent of the annual salary paid by the state to a district judge in the county."

Pursuant to House Bill 101 of the 71st Legislature, effective September 1, 1989, the judges of the district courts of this state shall be paid an annual salary that is five percent less than the salary for a justice of a court of appeals. Acts 1989, 71st Leg., ch. 1258, § 1, at 5074. You advise that House Bill 101 will result in a raise for the district judge in Austin County. Since the salary of the county court-at-law judge is tied to that of the district judge you ask whether the raise for the county court-at-law judge is automatic or must it await the action of the commissioners court at its annual budget hearing. Section 152.013 of the Local Government Code (formerly article 3912k, V.T.C.S.), provides in pertinent part:

(a) Each year the commissioners court shall set the salary, expenses, and other allowances of elected county or precinct officers. The commissioners court shall set the items at a regular meeting of the court during the regular budget hearing and adoption proceedings.

You state that your concern is prompted by the conclusion in Attorney General Opinion JW-326 (1985) that the salary for a county attorney, an elected official, may only be considered and adopted at the annual budget hearing and adoption proceedings under then article 3912k (now Local Government Code section 152.013).

Subsection (1) of section 152.017 of the Local Government Code excepts a judge of a court of record from the requirements of section 152.011 et seq., relating to the compensation for county and precinct officers. The county court-at-law judge in Austin County is the judge of a court of record. See Attorney General Opinion WW-1095 (1972). Therefore, section 152.013 of the Local Government Code is inapplicable to a county court-at-law judge. See Attorney General Opinion M-921 (1971); cf. Attorney General Opinion WW-110 (1979).[1] Since the county court-at-law judge's salary is tied to that of the district judge in the county, the effective date for the salary increase is September 1, 1989. The increase in salary for the county court-at-law judge is by mandate of the legislature and is not a matter addressed to the discretion of the commissioners court.

Even though the matter of the salary increase is not within the province of the commissioners court, the question remains whether the commissioners court may authorize the expenditure for same after the adoption of the budget for the year that included a lesser amount for the salary of that office.

Section 111.010 of the Local Government Code (formerly article 689a-11, V.T.C.S.), applicable to counties with a population of 225,000 or less, provided prior to amendment by the 71st Legislature, which will be considered later in the opinion, that the commissioners court may only spend county funds in strict compliance with the budget, except in an emergency. The matter of what constitutes an emergency that will justify the amendment of the budget has been the source of confusion and numerous questions to this office. See Attorney General Opinion JM-784 (1987); 35 D. Brooks, County and Special District Law, § 15.11 (Texas Practice 1989).

Attorney General Opinion JM-784 reviewed conflicting opinions relative to whether re-allocation among budgeted items already adopted is distinguishable from an item not originally included in the budget in determining whether it is necessary that an emergency exist before there may be an amendment to the budget. It was concluded that in either instance there must be an emergency before there may be an amendment to the duly adopted budget.

In Attorney General Opinion JM-733 (1987), an unforeseeable emergency caused the need for overtime work by a county employee. The question addressed was whether the budget may be amended to pay overtime compensation mandated by the federal Fair Labor Standards Act of 1938. It was concluded that the failure to pay such additional compensation constituted a potential violation of federal law so as to warrant an emergency amendment.

We need not consider whether the salary increase of the county court-at-law judge warrants an emergency amendment in light of House Bill 1077 of the 71st Legislature, effective upon passage on May 25, 1989. Acts 1989, 71st Leg., ch. 167, at 549. House Bill 1077 amended Local Government Code section 111.010 by adding subsection (d) providing:

(d) The commissioners court by order may amend the budget to transfer an amount budgeted for one item to another budgeted item without authorizing an emergency expenditure.

The following comments in the Bill Analysis to House Bill 1077 reflect the legislature's desire to resolve the problem requiring that an emergency exist before there may be a transfer among budgeted items.

Current law provides that in order to transfer funds from one line item to another, counties with fewer than 225,000 people must pass an order declaring an emergency and grave public necessity due to unusual and unforeseen circumstances. This requirement is unduly restrictive and cumbersome. Frequently, counties need to transfer funds without compromising the court's integrity by calling the situations an "emergency."

H.B. 1077 would allow counties 225,000 or less population to amend the budget to transfer funds from one line item to another without authorizing an emergency expenditure.

The current salary of the county court-at-law judge is a budgeted item. House Bill 1077 (subsection (d) of section 111.010) grants the commissioners court authority to transfer money from an amount budgeted for one item to another budgeted item without a finding that an emergency exists.

If there are not sufficient funds in any other budgeted item to enable the required transfer, we are of the opinion that the county court-at-law judge's claim for additional salary (effective September 1, 1989) resulting from the action of the 71st Legislature may be included in next year's budget and paid following the adoption of the budget. See 35 D. Brooks, County and Special District Law, § 15.8 (Texas Practice 1989).

SUMMARY

The salary increase for the judge of the county court-at-law of Austin County is by mandate of the legislature resulting from a raise in salary of the district judge in that county and is effective September 1, 1989. The commissioners court may amend the budget to transfer an amount from another budgeted item to effect the claim for such additional salary. In the event sufficient funds are not available in the budget to effect a transfer to satisfy the claim, the amount may be included in next year's budget and paid after adoption of the budget.

JIM MATTOX
Attorney General of Texas

MARY KELLER
First Assistant Attorney General

JUDGE ZOLLIE STEAKLEY
Special Assistant Attorney General

RICK GILPIN
Chairman, Opinion Committee

Prepared by Tom G. Davis
Assistant Attorney General

[1] Subsection (2) of section 152.017 of the Local Government Code excepts a presiding judge of a commissioners court in a county with a population of 1.7 million from the requirements of section 152.011 et seq. of the Local Government Code relating to compensation for county and precinct officers. Attorney General Opinion WW-110, while recognizing that a county judge is the presiding judge of a court of record, concluded that the requirements of then article 3912k (now Local Government Code section 152.013) apply to all county judges who preside over commissioners courts except those in counties having a population of 1,700,000 or more.