Does a Texas county have to include a district judge's longevity pay when setting a county court judge's salary?

TX AG Opinion GA-0694: Must a county count a judge's longevity pay in a county court judge's salary?

Plain-English summary

A county attorney asked how to set the salary of a statutory county court judge when some of the county's district judges receive longevity pay. Government Code section 659.0445 gives certain state-paid district judges longevity pay of $20 per month for each year of service, payable after 16 years. Government Code section 25.0005(a) requires that a statutory county court judge who does not practice law privately be paid a total annual salary not less than $1,000 below the total annual salary of a district judge in the county. In Fort Bend County, two of five district judges drew longevity pay, and the question was whether the county had to fold that into the baseline.

The Attorney General first concluded that "total annual salary" in section 25.0005(a), which the statute says includes state or county contributions and supplements, is broad enough to encompass longevity pay. But the decisive word was "a." Section 25.0005(a) sets the floor by reference to the total annual salary of "a district judge in the county," and Texas courts treat "a" as synonymous with "any." So the county may choose any of its district judges as the baseline, including one who receives no longevity pay.

The opinion added that where a statute can be read two ways, one favoring an officer seeking compensation above salary and one not, the reading favoring the government controls. It distinguished an earlier opinion, GA-0012, which equalized benefit replacement pay for similarly situated Denton County judges, because that conclusion rested on a specific legislative intent in section 25.0632(c) that has no parallel for section 25.0005. The result: a county may, but is not required to, consider the longevity pay received by some but not all district judges when setting a statutory county court judge's salary.

Currency note

This opinion was issued in 2009. 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.

Judicial salary and longevity-pay statutes are amended regularly. Confirm the current text of Government Code sections 25.0005 and 659.0445 before relying on this analysis.

Who this opinion affected (as of 2009)

County commissioners courts and county auditors: The opinion concluded they had discretion to choose any district judge's total annual salary as the baseline under section 25.0005(a), so counting longevity pay was permitted but not required.

Statutory county court judges: The opinion explained that their statutory salary floor was tied to "a" district judge's salary, which the county could satisfy by reference to a district judge without longevity pay.

Common questions

Did the county have to include longevity pay in the salary calculation?
No. The opinion read "a district judge in the county" to mean any district judge, so the county could use a baseline that excluded longevity pay.

Is longevity pay part of "total annual salary"?
The opinion said yes, longevity pay falls within the broad term "total annual salary," but that did not force the county to use a longevity-receiving judge as the baseline.

Why didn't the earlier GA-0012 opinion control?
The opinion distinguished GA-0012 because that result rested on a specific legislative intent in section 25.0632(c) to equalize Denton County judges' compensation, an intent the opinion found absent for section 25.0005.

Background and statutory framework

Certain state-paid district judges receive longevity pay of $20 per month per year of service after 16 years (Tex. Gov't Code Ann. § 659.0445(a)-(b) (Vernon Supp. 2008)). A statutory county court judge who does not practice law privately must be paid a total annual salary, including state or county contributions and supplements, not less than $1,000 below the total annual salary of "a district judge in the county" (id. § 25.0005(a)). Texas courts read "a" as synonymous with "any" (Chavira v. State, 319 S.W.2d 115, 120 (Tex. Crim. App. 1958)), and where a compensation statute is susceptible of two constructions, the one favoring the government controls (Allen v. Davis, 333 S.W.2d 441, 444 (Tex. Civ. App.-Amarillo 1960, writ ref'd n.r.e.)). The opinion distinguished an earlier opinion that equalized benefit replacement pay based on a specific legislative intent in section 25.0632(c) for Denton County (Tex. Att'y Gen. Op. No. GA-0012 (2003) at 2-3), finding no similar intent for section 25.0005.

Citations

Statutes:

• Tex. Gov't Code Ann. § 659.0445(a)-(b) (Vernon Supp. 2008)
• Tex. Gov't Code Ann. § 25.0005(a) (Vernon Supp. 2008)
• Tex. Gov't Code Ann. § 25.0632(c)

Cases:

• Chavira v. State, 319 S.W.2d 115, 120 (Tex. Crim. App. 1958)
• Allen v. Davis, 333 S.W.2d 441, 444 (Tex. Civ. App.-Amarillo 1960, writ ref'd n.r.e.)
• Tex. Att'y Gen. Op. No. GA-0012 (2003)

Source

• Landing page: https://www.texasattorneygeneral.gov/opinions/greg-abbott/ga-0694
• Original PDF: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/2009/ga0694.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

February 26, 2009

The Honorable Roy L. Cordes, Jr.
Fort Bend County Attorney
301 Jackson Street, Suite 728
Richmond, Texas 77469-3108

Opinion No. GA-0694

Re: Whether a county must consider longevity pay when determining a statutory county court judge's salary under Government Code section 25.0005(a) (RQ-0731-GA)

Dear Mr. Cordes:

Under Government Code section 659.0445, certain district judges who receive a state-paid salary are entitled to "longevity pay" in the amount of $20 per month for each year of service, payable after 16 years of service. See TEX. GOV'T CODE ANN. § 659.0445(a)-(b) (Vernon Supp. 2008). Government Code section 25.0005(a) provides that a statutory county court judge who does not engage in the private practice of law "shall be paid a total annual salary" that is "not less than $1,000 less than the total annual salary received by a district judge in the county." Id. § 25.0005(a). You state that two of Fort Bend County's five district judges receive longevity pay under section 659.0445.[1] You ask whether a county "must consider" the section 659.0445 longevity pay "when determining the salary for a statutory county court judge in accordance with" section 25.0005(a). Request Letter, supra note 1, at 1.

A district judge's "total annual salary" in section 25.0005(a), "includes contributions and supplements, paid by the state or a county." TEX. GOV'T CODE ANN. § 25.0005(a) (Vernon Supp. 2008). Section 25.0005 does not, however, define any of the relevant terms. The ordinary meaning of "salary" is "a fixed regular payment . . . made by an employer to an employee," while a "supplement" is "something that completes or enhances something else when added to it," and a "contribution" is "a gift or payment to a common fund." THE NEW OXFORD AMERICAN DICTIONARY 374, 1504, 1707 (2001). Giving the term its ordinary meaning, "total annual salary" in section 25.0005 is broad enough to encompass the amount of longevity pay received by a district judge in the county.

Section 25.0005(a), by its terms, requires that a statutory county court judge be paid not less than $1000 less than the "total annual salary" received by "a district judge in the county." TEX. GOV'T CODE ANN. § 25.0005(a) (Vernon Supp. 2008) (emphasis added). The "word 'a' is synonymous with the word 'any.'" Chavira v. State, 319 S.W.2d 115, 120 (Tex. Crim. App. 1958). Thus, section 25.0005(a) plainly permits a county, in the situation you describe, to choose any of the district judges' total annual salaries as the baseline when determining a statutory county court judge's salary, including a district judge that does not receive longevity pay.[2] See TEX. GOV'T CODE ANN. § 25.0005(a) (Vernon Supp. 2008); see also Allen v. Davis, 333 S.W.2d 441, 444 (Tex. Civ. App.-Amarillo 1960, writ ref'd n.r.e.) (stating that when a statute is susceptible of two constructions, one of which would favor an officer seeking compensation above his salary and the other which would not, construction should favor government). Accordingly, we conclude that a county may, but is not required to, consider the longevity pay amount received by some but not all district judges in the county when determining the salary for a statutory county court judge in accordance with Government Code section 25.0005(a).

[Footnote 2: We note that Texas Attorney General Opinion GA-0012 concludes that a statutory county court judge should receive benefit replacement pay if he held office at the time when the district court judges received such pay. See Tex. Att'y Gen. Op. No. GA-0012 (2003) at 3. This conclusion was based principally on the "manifest intent of the [L]egislature in [Government Code section 25.0632(c)] to equalize the compensation of similarly situated district and statutory county court judges." Id. (emphasis added). Attorney General Opinion GA-0012 derived that intent from the legislative history of section 25.0632(c) addressing only Denton County. See id. at 2. We find no similar legislative intent regarding Government Code section 25.0005.]

SUMMARY

Based on the plain language of the statute, a county may, but is not required to, consider the amount of longevity pay received by some but not all district judges in the county when determining the salary for a statutory county court judge in accordance with Government Code section 25.0005(a).

Very truly yours,

GREG ABBOTT
Attorney General of Texas

ANDREW WEBER
First Assistant Attorney General

JONATHAN K. FRELS
Deputy Attorney General for Legal Counsel

NANCY S. FULLER
Chair, Opinion Committee

Sheela Rai
Assistant Attorney General, Opinion Committee