Who decides how much, if anything, the judges who sit on a Texas county juvenile board get paid?

TX AG Opinion GA-0799: Who sets the pay for judges on a county juvenile board?

Plain-English summary

The Hood County Commissioners Court, through the county attorney, asked who has the authority to establish, increase, decrease, or eliminate the compensation paid to the judges who serve on the Hood County Juvenile Board. The board had been created under chapter 152 of the Human Resources Code, subchapters A and B. Two provisions bear on pay. Subchapter A says any compensation for a judge serving on a juvenile board is in addition to the judge's other lawful compensation. Subchapter B says service on a juvenile board is an additional duty of office and that "[t]he commissioners court may reasonably compensate each member of the juvenile board for the member's additional duties."

The Attorney General concluded the commissioners court holds that authority. The key was the word "may" in section 152.0034(b). In ordinary usage, "may" indicates discretion or a choice, not a command, and nothing in the statute suggested a different meaning. The word "may" was also qualified by "reasonably," which would have been unnecessary unless the Legislature meant to hand the commissioners court discretion over the amount of the pay. Reading the provision in the context of subchapter B reinforced that result: the very next section uses "shall" to require the county to reimburse board members for their actual and necessary expenses. Because the Legislature used a mandatory word for expenses but a discretionary word for compensation, it knew how to impose a duty and chose not to for compensation.

The Attorney General added that prior opinions had read other parts of chapter 152 to let a commissioners court set juvenile board compensation, so this conclusion fit the rest of the chapter. The opinion also rejected an argument that a juvenile board's general financial independence (it is a specialized local entity whose funds the county disburses as the board directs) overrode the statute. That independence exists only where a statute does not provide otherwise, and here a statute expressly gave the commissioners court discretionary authority over the board members' pay. The bottom line: under section 152.0034(b), the Hood County Commissioners Court could establish, increase, decrease, or eliminate the compensation of the judges serving on the board.

Currency note

This opinion was issued in 2010. 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.

Chapter 152 of the Human Resources Code, which governs county juvenile boards, has been amended since 2010, and some county-specific provisions have changed. Confirm the current statute before relying on anything below.

Who this opinion affected (as of 2010)

County commissioners courts: The opinion told them they held discretionary authority under section 152.0034(b) to set, raise, lower, or eliminate the compensation paid to judges serving on the county juvenile board.

Judges serving on juvenile boards: The opinion meant their additional-duty pay was not guaranteed by this provision; it was within the commissioners court's discretion, though their actual and necessary expenses had to be reimbursed.

Juvenile boards: The opinion clarified that a board's general financial independence did not shield board-member compensation from the commissioners court's statutory authority over that pay.

Common questions

Does a county have to pay judges who serve on a juvenile board?
Not under section 152.0034(b). The opinion read "may reasonably compensate" as discretionary, so the commissioners court could choose whether and how much to pay, and could even eliminate the compensation.

What is the difference between compensation and expenses here?
Compensation under section 152.0034(b) was discretionary ("may"). Reimbursement of a board member's actual and necessary expenses under the next section was mandatory ("shall"). The contrast in wording drove the result.

Doesn't a juvenile board control its own funds?
A juvenile board has general financial independence, but only where a statute does not provide otherwise. Because section 152.0034(b) expressly gave the commissioners court authority over board-member compensation, that independence did not override it.

Background and statutory framework

The Hood County Juvenile Board was created under chapter 152 of the Human Resources Code, subchapters A and B. Subchapter A provides that compensation for a judge serving on a juvenile board is in addition to all other compensation provided by law (Tex. Hum. Res. Code Ann. § 152.0003). Subchapter B provides that service on a juvenile board is an additional duty of office and that the commissioners court "may reasonably compensate" each member for those additional duties (§ 152.0034(a)-(b)). Certain subchapter A sections do not apply to a board operating under subchapter B (§ 152.0040), and the subchapter governing counties with a family district court did not apply here.

In construing section 152.0034, the Attorney General sought to give effect to the Legislature's intent as expressed in the statute's language, consistent with the statute's other provisions (Presidio Indep. Sch. Dist. v. Scott, 309 S.W.3d 927, 930 (Tex. 2010)). The word "may" generally indicates discretion (Tex. Gov't Code Ann. § 311.016(1)), and "shall" generally imposes a duty (§ 311.016(2)). Because the Legislature used "may," qualified by "reasonably," for compensation in section 152.0034(b), but used "shall" for the mandatory reimbursement of expenses in section 152.0035, the discretionary reading followed. The opinion invoked the presumption that every word of a statute is included or excluded for a reason (Old Am. Cnty. Mut. Fire Ins. Co. v. Sanchez, 149 S.W.3d 111, 115 (Tex. 2004)). Prior attorney general opinions construing other chapter 152 provisions had likewise recognized a commissioners court's authority to set juvenile board compensation, and the board's general financial independence yielded where, as here, a statute expressly provided otherwise.

Citations

Statutes:

• Tex. Hum. Res. Code Ann. §§ 152.0003, 152.0034(a)-(b), 152.0035, 152.0040 (West 2001 & Supp. 2010)
• Tex. Gov't Code Ann. § 311.016(1), § 311.016(2) (West 2005)

Cases:

• Presidio Indep. Sch. Dist. v. Scott, 309 S.W.3d 927 (Tex. 2010)
• Old Am. Cnty. Mut. Fire Ins. Co. v. Sanchez, 149 S.W.3d 111 (Tex. 2004)

Source

• Landing page: https://www.texasattorneygeneral.gov/opinions/greg-abbott/ga-0799
• Original PDF: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/2010/ga0799.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

September 22, 2010

The Honorable R. Kelton Conner
Hood County Attorney
1200 West Pearl Street
Granbury, Texas 76048

Opinion No. GA-0799

Re: Compensation of judges serving on a juvenile board (RQ-0861-GA)

Dear Mr. Conner:

You ask, on behalf of the Hood County Commissioners Court ("Commissioners Court"), "[w]ho has the authority and responsibility to establish, increase, decrease or eliminate the amount of compensation to be paid to the judges serving on the Juvenile Board of Hood County[.]" [Footnote 1: Request Letter (available at http://www.texasattorneygeneral.gov).]

A brief attached to your request explains that the Hood County Juvenile Board ("Board") "was created under [c]hapter 152, Human Resources Code [s]ubchapters A and B." [Footnote 2: Brief at 1 (available at http://www.texasattorneygeneral.gov). In addition, you clarify that "Hood County does not have a Family District Court and no provisions for Hood County are set forth in" subchapter D of chapter 152. Request Letter; see also TEX. HUM. RES. CODE ANN. §§ 152.0051-.0055 (West 2001) ("Subchapter C: County Juvenile Board in Counties with a Family District Court"). It is, therefore, our understanding that neither subchapter C nor D of chapter 152 are applicable to the Board. We also note that certain sections of subchapter A do not apply to the Board. See TEX. HUM. RES. CODE ANN. § 152.0040 (West 2001) (providing that "[s]ections 152.0002, 152.0004, 152.0005, and 152.0009 do not apply to a juvenile board operating under" subchapter B).] Subchapters A and B both contain provisions related to the compensation of the Board. Subchapter A provides that "[t]he compensation authorized under this chapter for a judge serving on a juvenile board is in addition to all other compensation provided or allowed by law for a judge." TEX. HUM. RES. CODE ANN. § 152.0003 (West Supp. 2010). Subchapter B provides that "[s]ervice on a juvenile board by a judge is an additional duty of office" and that "[t]he commissioners court may reasonably compensate each member of the juvenile board for the member's additional duties." Id. § 152.0034(a)-(b) (West 2001) (emphasis added).

In construing section 152.0034, we "ascertain and give effect to the Legislature's intent as expressed by the statute's language" and "we give meaning to the language consistent with other provisions in the statute." Presidio Indep. Sch. Dist. v. Scott, 309 S.W.3d 927, 930 (Tex. 2010). We consider first the meaning of the term "may" as used in section 152.0034(b). As previous attorney general opinions explain, in construing a statute, "the use of the word 'may' as opposed to 'shall' generally indicates discretion or choice between two or more alternatives, but the context in which the word appears must be the controlling factor." Tex. Att'y Gen. Op. No. JC-0517 (2002) at 4 (quoting Tex. Att'y Gen. LO-93-60, at 1-2); see also Tex. Att'y Gen. Op. No. GA-0622 (2008) at 3 ("The word 'may' denotes discretion not to do something.") (citing Texas Government Code section 311.016(1)). Nothing in the language of section 152.0034 indicates that the Legislature intended to use the term "may" in anything but its usual sense. Moreover, the term "may" in section 152.0034(b) is qualified by the term "reasonably." TEX. HUM. RES. CODE ANN. § 152.0034(b) (West 2001). It would have been unnecessary to qualify the authority by inserting the word "reasonably" if the Legislature had not intended to grant a commissioners court discretionary authority over the amount of compensation of a board. Cf. Old Am. Cnty. Mut. Fire Ins. Co. v. Sanchez, 149 S.W.3d 111, 115 (Tex. 2004) (presuming that every word of a statute is included or excluded for a reason).

Considering section 152.0034 in the context of subchapter B also indicates the commissioners court has the discretion, but not the duty, to compensate a juvenile board. The very next section of subchapter B uses the term "shall" in referring to the commissioners court's duty to reimburse juvenile board members for their actual and necessary expenses. See TEX. HUM. RES. CODE ANN. § 152.0035 (West 2001) ("The county shall reimburse a juvenile board member for the member's actual and necessary expenses incurred in performing official duties on the board.") (emphasis added); see also TEX. GOV'T CODE ANN. § 311.016(2) (West 2005) (explaining that the term "shall" imposes a duty unless the statute expressly provides otherwise or the context necessarily requires a different construction). Had the Legislature intended to impose a duty on the commissioners court to compensate a juvenile board under section 152.0034(b), it would have similarly used the word shall. [Footnote 3: In addition, as evidenced by certain statutes pertaining to specific juvenile boards, the Legislature does not believe it imperative to compensate those serving on a juvenile board. See, e.g., TEX. HUM. RES. CODE ANN. §§ 152.0791(e) (West 2001) (providing that public members of the Falls County Juvenile Board serve without compensation); 152.0901(c) ("The juvenile board members [of Galveston County] do not receive compensation for serving on the juvenile board" but shall be paid $75 per month for performing certain duties).] Cf. Old Am. Cnty. Mut. Fire Ins. Co., 149 S.W.3d at 115 (presuming that every word of a statute is included or excluded for a reason).

Finally, we note that prior attorney general opinions have construed other provisions of chapter 152 to authorize a commissioners court to set the amount of compensation of a juvenile board. See Tex. Att'y Gen. Op. Nos. GA-0715 (2009) at 2 (construing Human Resources Code section 152.0971), DM-103 (1992) at 2 (construing Human Resources Code section 152.0411(c)). [Footnote 4: The exact scope of that authority may, of course, differ depending upon the statute at issue. For example, the Legislature sometimes establishes a statutory minimum and maximum amount of compensation for a juvenile board within which a commissioners court must act. See Tex. Att'y Gen. Op. No. DM-103 (1992) (construing Human Resources Code section 152.0411(c)).] Thus, our conclusion here is consistent with other provisions in chapter 152 in regard to the relationship between a commissioners court and a juvenile board as to the compensation of the board members.

Having examined section 152.0034(b)'s express terms in the context of subchapter B, we conclude that section 152.0034(b) grants a commissioners court discretionary authority over the compensation of a juvenile board member. See Tex. Att'y Gen. LO-94-055, at 3 ("The commissioners court also has a role in determining the district judge's compensation. It may . . . compensate the district judge for serving on the juvenile board [under section 152.0034]."). It is our opinion that the Commissioners Court has authority under section 152.0034(b) to establish, increase, decrease, or eliminate the amount of compensation to be paid to the judges serving on the Board. [Footnote 5: One brief received by our office suggests that this conclusion conflicts with state law and prior attorney general opinions that address the general financial independence of a juvenile board. See Brief from Honorable Vincent J. Messina, Hood County Court at Law Judge, to Nancy Fuller, at 2-3 (Mar. 26, 2010) (citing, for example, Local Government Code section 140.003, which provides that a juvenile board is a specialized local entity and that the county disburses and cares for its funds as the entity directs). We disagree. A juvenile board has general financial independence only to the extent that a statutory provision does not explicitly provide otherwise. Here we have a statute that expressly provides that the commissioners court has discretionary authority to compensate the members of the juvenile board. Moreover, none of the opinions cited in the brief construe section 152.0034(b) of the Human Resources Code. See generally, e.g., Tex. Att'y Gen. Op. Nos. JC-0209 (2000); JC-0085 (1999); DM-460 (1997).]

SUMMARY

Pursuant to section 152.0034(b) of the Human Resources Code, the Hood County Commissioners Court has the authority to establish, increase, decrease, or eliminate the compensation paid to the judges serving on the Hood County Juvenile Board.

Very truly yours,

GREG ABBOTT
Attorney General of Texas

DANIEL T. HODGE
First Assistant Attorney General

DAVID J. SCHENCK
Deputy Attorney General for Legal Counsel

NANCY S. FULLER
Chair, Opinion Committee

Christy Drake-Adams
Assistant Attorney General, Opinion Committee