Could Harris County pay district judges extra for serving as weekend and holiday magistrates without reducing the judges' state-funded salary?

Texas AG Opinion JM-695: Extra Compensation for District Judges

Plain-English summary

The Harris County Auditor asked whether district judges trying criminal cases could receive extra county compensation for serving as magistrates on weekends, holidays, and outside scheduled district-court hours.

The Attorney General concluded that Harris County could not add compensation above the salary differential fixed by the General Appropriations Act without causing an equal reduction in the state's share of the judges' salaries.

At the time, Government Code section 32.101 required Harris County to pay district judges an annual county salary between $12,000 and $25,000 in addition to their state salary. The appropriations act separately required a district judge's combined state and county salary to remain $1,000 below the combined salary of the appellate justices in that district.

The judges already sat at that $1,000 differential. If added magistrate compensation raised their combined salary above it, the Comptroller had to reduce the state payment by the excess. The county could make the payment, but it could not increase the judges' net combined salary beyond the cap through that route.

An automobile allowance under Government Code section 32.303 was different. The opinion treated it as reimbursement for official expenses rather than supplemental salary.

Currency note

This opinion was issued in 1987. 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.

Common questions

Could Harris County pay judges for weekend magistrate service?

It could not do so in a way that increased combined salary above the required differential without a matching reduction in the state portion.

What was the salary differential?

District judges could receive a combined state and county annual salary $1,000 below the appellate justices serving the same appellate district.

Who enforced the differential?

The Comptroller of Public Accounts reviewed sworn salary statements and reduced the state's payment when the combined salary exceeded the permitted amount.

Did extra pay for holidays or nonscheduled hours escape the rule?

No. The opinion applied the same compensation limit to magistrate work during weekends, holidays, and nonscheduled district-court hours.

Was an automobile allowance treated as salary?

No. The opinion treated an authorized allowance for automobile expenses incurred in official duties as expense reimbursement rather than supplemental salary.

Background and statutory framework

Government Code section 32.101 required the Harris County commissioners court to budget and pay district judges a county salary for judicial and administrative services. Article 6813b provided that state officers' and employees' salaries were governed by the biennial appropriations act when that act specified them.

The 1985 appropriations act set the state district-judge salary at $54,500 and imposed the state-and-county salary differential. Judges and appellate justices had to file sworn annual statements of expected salary from both sources and amended statements when the rate changed.

The Comptroller could not issue a salary warrant that violated the differential. This made the county supplement and state payment parts of one combined calculation.

Citations and references

Statutory authorities:

• Government Code section 32.101 (Harris County district-judge salary)
• Article 6813b, section 1, V.T.C.S. (state salaries and appropriations)
• General Appropriations Act, Acts 1985, 69th Legislature, chapter 980, article IV (district-judge salary and differential)
• Government Code section 32.303 (automobile allowances)

Source

• Landing page: https://www.texasattorneygeneral.gov/opinions/jim-mattox/jm-0695
• Original PDF: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1987/jm0695.pdf

Original opinion text

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

May 13, 1987

Mr. J. F. Flack
Harris County Auditor
800 County Administration Bldg.
1001 Preston
Houston, Texas 77002

Opinion No. JM-695

Re: Compensation for criminal district judges while sitting as magistrates

Dear Mr. Flack:

We are in receipt of a copy of a letter from the Harris County Attorney in which he declines to answer your questions. See Govt. Code § 41.007. We accept your request for an opinion on the issues presented as follows:

(1) The District Judges trying criminal cases in Harris County are currently sitting as magistrates, on a rotating basis, during all weekends and holidays. Those judges are not receiving any additional compensation for that service. Can Harris County pay those judges additional compensation and/or benefits for that service, and if so, would the state reduce the compensation to the District Judges under the authority of article 4 of the Appropriation Bill?

(2) Can the District Judges trying criminal cases be allowed additional compensation for performing judicial magistrate functions during nonscheduled district court hours seven days a week?

Section 32.101 of the Government Code states:

(a) The Commissioners Court of Harris County shall budget for and pay the judges of the district courts having jurisdiction in that county an annual salary of not less than $12,000 nor more than $25,000 for judicial and administrative services.

(b) The salary shall be paid in equal monthly installments from the county general fund or officers' salary fund.

(c) The salary is in addition to the salary paid by the state.

Section 1 of article 6813b, V.T.C.S., "Salaries of state officers and employees for biennium; exceptions," provides:

All salaries of all State officers and State employees, including the salaries paid any individual out of the General Revenue Fund, shall be in such sums or amounts as may be provided for by the Legislature in the biennial Appropriations Act. It is further provided that in instances where the biennial Appropriations Act does not specify or regulate the salaries or compensation of a State official or employee, the law specifying or regulating the salary or compensation of such official or employee is not suspended by this Act. (Emphasis added).

The biennial appropriations act for the period beginning September 1, 1985 and ending August 31, 1987 (Acts 1985, 69th Leg., ch. 980, art. IV, at budget 437) sets the salary to be paid a district judge at $54,500 per year.

In your letter you state that "Harris County District Judges currently receive $1,000.00 less annually than the appellate court justices."

The General Appropriations Act (Acts 1985, 69th Leg., ch. 980, art. IV, at budget 442) contains the following:

Sec. 2. Salary Differential for District Court Judges and Justices of Courts of Appeals. District Court Judges may receive a combined yearly salary rate from state and county sources which is One Thousand Dollars ($1,000) less than the combined yearly salary rate from state and county sources received by Justices of the Courts of Appeals in whose district the District Court is located. Justices of the Courts of Appeals may receive a combined yearly salary rate from state and county sources which is One Thousand Dollars ($1,000) less than the yearly salary provided in this Act for an Associate Justice of the Supreme Court and the Court of Criminal Appeals. In the case of Chief Justices of the Courts of Appeals, the differential shall be five hundred dollars ($500).

In order that the differential set out above be maintained, each District Court Judge and Justice of the Courts of Appeals shall file a sworn statement with the Comptroller of Public Accounts setting forth the yearly amounts to be received from state and county as salary payments during the ensuing fiscal year. Amended statements shall be filed setting forth any change in the salary rate which occurs during a fiscal year.

For the purpose of salary payments by the state, the Comptroller of Public Accounts shall determine from the filed statements that the required salary differential set out above is maintained. In the event a salary is in excess of the One Thousand Dollars ($1,000) differential, the Comptroller is directed to reduce the state's portion of that salary by the amount of excess, except in the case of the Chief Justices in the Courts of Appeals where the differential shall be Five Hundred Dollars ($500).

The appropriations for salaries of District Court Judges and Justices of Courts of Appeals are made contingent upon strict compliance with the provisions of this section and the Comptroller shall have no authority to issue a warrant for salaries which violate these provisions. (Emphasis added).

Since Harris County judges are currently receiving a combined salary from the state and county which is $1,000.00 less than that of the appellate court justices, it is our opinion that Harris County may not pay the district judges any additional salary or compensation for sitting as magistrates during weekends, holidays and nonscheduled district court hours that would not result in a corresponding reduction in the state's portion of the salary. In the event that the judges' salaries rise above the $1,000.00 differential, we are of the opinion that the comptroller is required to reduce the state's portion of the salaries by the amount of the excess.

You call our attention to section 32.303 of the Government Code, which authorizes:

The commissioners courts of Bexar, Dallas, Harris, and Tarrant counties may pay the judges of the district courts in their counties an automobile allowance in an amount set by the commissioners court for automobile expenses incurred in performing official duties.

We are of the opinion that you are correct in concluding the automobile allowance would not be considered supplemental salary paid by Harris County, but would be an amount for an expense incurred in performing official duties.

SUMMARY

Since the District Judges of Harris County are currently receiving a combined yearly salary (from the state and the county) which is only $1,000.00 less than the combined yearly salary received by the Justices of the Courts of Appeals (in whose district the district courts are located), Harris County may not pay the district judges additional compensation or salary for sitting as magistrates during weekends, holidays and nonscheduled district court hours under the appropriations act (Acts 1985, 69th Leg., ch. 980, art. IV, at budget 442) that would not result in a corresponding reduction in the state's portion of the salary. In the event the salary or compensation rises above the $1,000.00 differential, it is the duty of the comptroller, under the biennial appropriations act, to reduce the state's portion of that salary or compensation by the amount of the excess.

JIM MATTOX
Attorney General of Texas

JACK HIGHTOWER
First Assistant Attorney General

MARY KELLER
Executive Assistant Attorney General

JUDGE ZOLLIE STEAKLEY
Special Assistant Attorney General

RICK GILPIN
Chairman, Opinion Committee

Prepared by Tom G. Davis
Assistant Attorney General