When does a Texas county 'initially' start collecting court fees for the judge salary rule?

Plain-English summary

Coryell County Attorney Edwin E. Powell, Jr., asked the Attorney General to pin down when a county "initially" begins collecting fees and costs under section 51.702 of the Government Code, a phrase that matters for the alternative judge-salary formula in section 25.0005(e). The Attorney General concluded that "initially" means the first year a county begins collecting the fees, even if it reapproves collection in later years.

Section 25.0005(a) sets a minimum salary for statutory county court judges in counties that collect section 51.702 fees, generally tying their pay to district judges' pay. A county can escape that formula by using subsection (e), but only if it meets several conditions, the key one being that no later than September 1 of the year it "initially begins collecting fees and costs," it raise each judge's salary to at least $28,000 above what the judge was entitled to on May 1 of that year. Powell suggested "initially" might mean each year a county chose to collect the fees. The opinion rejected that. Before 1995 a commissioners court had to adopt a fee resolution every year, but a 1995 amendment made the resolution continue from year to year until rescinded, so a county no longer re-opts annually.

Reading "initially" by its ordinary meaning ("at the beginning, at the outset, at first"), the opinion held it refers to the first time, not every time. That produced a strict result: a county qualifies for the (e) formula only if it gave the $28,000 raise in the first year it began collecting fees. The opinion pointed out that the 1999 amendment created no exception for counties that had already started collecting, and that because the earlier law required only $20,000 or $24,000 raises, it might be that no county that began collecting before the 1999 amendment ever gave a $28,000 first-year raise. If so, those counties cannot use the (e) formula and must pay under subsection (a). The opinion acknowledged it may consider the consequences of a reading (section 311.023(5)) but did not find this result absurd or contrary to legislative intent, so it followed the statute's plain language. A county that did not raise judges' pay by at least $28,000 when it initially began collecting the fees is ineligible for the subsection (e) formula.

Currency note

This opinion was issued in 1999. 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.

Background and statutory framework

Under section 51.702, a commissioners court that wants to collect the fees and costs adopts a resolution authorizing them; if the resolution is filed with the State Comptroller by June 1, the county may collect for a twelve-month period starting July 1 (section 51.702(f)). To use subsection 25.0005(e), the county must give its statutory county court judges the required raise by September 1 of the year it initially begins collecting. Subsection (e) also requires the county to maintain that salary, keep collecting the fees, have a court with at least the jurisdiction in section 25.0003, and use at least 50 percent of its section 25.0016 receipts for the judges' salaries.

The opinion traced the statute's history to resolve the annual-versus-first-year question. An earlier version required a commissioners court to adopt a fee resolution each year for the 12-month period, as reflected in the 1991 act and recognized in Ector County v. Hollmann, 901 S.W.2d 687, 689-91 (Tex. App.-El Paso 1995, no writ), and in Letter Opinion LO-94-048. But the 1995 amendment provided that the resolution "continues from year to year ... until the resolution is rescinded" (section 51.702(g)). So since 1995 a county need not re-approve collection annually, and "initially" naturally refers to the first year.

To construe "initially," the opinion applied the rule that undefined words are read by grammar and common usage (section 311.011) and cited the Oxford English Dictionary's definition ("at the beginning, at the outset, at first"). It reinforced the reading with the consequences of the alternative: if "initially" reset each year, a county would have to give a $28,000 raise annually, and county court judges' pay would quickly outstrip district judges' (who earned $92,217 from the state in 1999), which would defeat subsection (e)'s purpose of letting counties pay less than subsection (a) requires. The opinion noted subsection (a) ties county court judges' pay closely to district judges', requiring a salary no less than $1,000 below a district judge's.

Common questions

What does 'initially begins collecting fees' mean for the judge-salary formula?
The opinion concluded it means the very first year a county starts collecting fees and costs under section 51.702, even if the commissioners court reapproves collection in later years.

Does a county have to re-adopt the fee resolution every year?
No. The opinion explained that since the 1995 amendment, a fee resolution continues year to year until the county rescinds it, so a county does not re-opt annually.

What does a county have to do to use the section 25.0005(e) formula?
By September 1 of the first year it begins collecting the fees, it must raise each statutory county court judge's salary to at least $28,000 above what the judge was entitled to on May 1 of that year, and meet the other (e) conditions.

Can a county that started collecting fees years ago still use the (e) formula?
Maybe not. The opinion noted the earlier law required only $20,000 or $24,000 first-year raises, so a county that did not give a $28,000 raise when it initially began collecting is ineligible for the (e) formula and must use subsection (a).

Citations

Statutory provisions: Tex. Gov't Code Ann. § 25.0005(a) (Vernon Supp. 2000), §§ 25.0005(e), 25.0003, 25.0016, § 51.702(f), § 51.702(g), § 311.011, § 311.023(5) (Vernon 1998); Act of May 27, 1991, 72d Leg., R.S., ch. 746, § 67, 1991 Tex. Gen. Laws 2620, 2637-38; Act of May 10, 1995, 74th Leg., R.S., ch. 144, § 3, 1995 Tex. Gen. Laws 992, 993; General Appropriations Act, Act of May 29, 1997, 75th Leg., R.S., ch. 1452, art. IV, 1997 Tex. Gen. Laws 5535, 6016.

Case: Ector County v. Hollmann, 901 S.W.2d 687 (Tex. App.-El Paso 1995, no writ).

Other authority discussed: VII Oxford English Dictionary 976 (2d ed. 1989); Tex. Att'y Gen. LO-94-048.

Source

• Landing page: https://www.texasattorneygeneral.gov/opinions/john-cornyn/jc-0157
• Original PDF: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1999/jc0157.pdf

Original opinion text

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

December 16, 1999

The Honorable Edwin E. Powell, Jr.
Coryell County Attorney
P.O. Box 796
113 South Seventh Street
Gatesville, Texas 76528

Opinion No. JC-0157

Re: When a county "initially" begins collecting fees and costs pursuant to section 51.702 of the Government Code for purposes of the statutory county court judges salary formula of section 25.0005(e) (RQ-0093-JC)

Dear Mr. Powell:

Section 25.0005, subsection (a), of the Government Code sets out a formula for determining the minimum salaries of statutory county court judges in counties that opt to collect fees and costs from civil litigants and convicted criminal defendants pursuant to section 51.702 of the Government Code. See TEX. GOV'T CODE ANN. § 25.0005(a) (Vernon Supp. 2000). Generally, the formula ties the salaries of statutory county court judges, which are set by commissioners courts, to the salaries of district judges, which are set by the legislature. Id.

A county is not required to use the salary formula set out in subsection (a) if the county commissioners court raises the judge's salary within a certain period of time after the county "initially begins collecting fees and costs under section 51.702," and complies with other requirements set out in subsection (e):

(e) A county is not required to meet the salary requirements of Subsection (a) for a particular court if:

(1) not later than September 1 of the year in which the county initially begins collecting fees and costs under Section 51.702, the county increases the salary of each statutory county court judge in the county to an amount that is at least $28,000 more than the salary the judge was entitled to on May 1 of the year the county initially begins collecting fees and costs under Section 51.702;

(2) the county pays at least the salary required by Subdivision (1);

(3) the county collects the fees and costs as provided by Section 51.702;

(4) the court has at least the jurisdiction provided by Section 25.0003; and

(5) except as provided by Subsection (f), the county uses at least 50 percent of the amount the county receives each state fiscal year under Section 25.0016 for salaries for the statutory county court judges.

Id. § 25.0005(e). Under section 51.702, the commissioners court of a county that wishes to collect the fees and costs must adopt a resolution authorizing the fees and costs. Id. § 51.702(f) (Vernon 1998). If the resolution is filed with the State Comptroller by June 1, the county may begin collecting the fees and costs for a twelve-month period beginning July 1. Id. In order to comply with subsection (e) of section 25.0005, the county must give its statutory county court judges a raise by September 1 of the year it initially begins collecting fees and costs. See id. § 25.0005(e) (Vernon Supp. 2000).

You ask us to determine when a court "initially" begins to collect fees and costs for purposes of subsection (e) of section 25.0005 of the Government Code. We conclude that a court initially begins to collect fees the very first year that a court begins collecting fees and costs pursuant to section 51.702 of the Government Code.

Your letter suggests that the phrase "initially begins collecting fees and costs under Section 51.702" might refer to "the option to collect fees that a county must exercise each year after 1995." Letter from Honorable Edwin E. Powell, Jr., Coryell County Attorney, to Honorable John Cornyn, Texas Attorney General (July 28, 1999) (on file with Opinion Committee). We note as a preliminary matter that we do not read section 51.702 as requiring a county to approve collection of the fees each year after 1995. An earlier version of section 51.702 authorized the collection of fees and costs if the county commissioners court "adopte[d] a resolution authorizing the fees and costs under this section for the 12-month period." Act of May 27, 1991, 72d Leg., R.S., ch. 746, § 67, 1991 Tex. Gen. Laws 2620, 2637-38. This provision required a commissioners court that desired to participate in the salary financing scheme to adopt annually a resolution authorizing collection of the fees and costs. See Ector County v. Hollmann, 901 S.W.2d 687, 689-91 (Tex. App.-El Paso 1995, no writ); Tex. Att'y Gen. LO-94-048, at 2. However, in 1995, the legislature amended section 51.702 to provide that a resolution approving the fees and costs "continues from year to year allowing the county to collect fees and costs under the terms of this section until the resolution is rescinded." TEX. GOV'T CODE ANN. § 51.702(g) (Vernon 1998); Act of May 10, 1995, 74th Leg., R.S., ch. 144, § 3, 1995 Tex. Gen. Laws 992, 993. Thus, since 1995, a county that wishes to continue collection of the fees and costs need not approve collection each year.

In our view, the term "initially" for purposes of section 25.0005(e) of the Government Code means the first year that a court begins collecting fees and costs under section 51.702. Undefined words and phrases in a statute must be read in context and construed according to the rules of grammar and common usage. See TEX. GOV'T CODE ANN. § 311.011 (Vernon 1998). "Initially" ordinarily means "at the beginning, at the outset, at first." VII OXFORD ENGLISH DICTIONARY 976 (2d ed. 1989). Thus, if an action is performed a number of times, the time it is "initially" performed is the first time. Accordingly, a county complies with section 25.0005(e) of the Government Code if, in addition to other requirements, the county increased the salaries of statutory county court judges by at least $28,000 in the year that the county first began collecting fees and costs under section 51.702, even if the court reapproved collection in subsequent years.

If "initially" were read to mean each year that a county approved collection of the fees and costs after the first year, then in order to use the salary formula of subsection (e) a county would have to give its statutory county court judges a $28,000 raise each year. With such annual increases, the salaries of county court judges would quickly surpass those of district court judges who, for example, earned $92,217 from the state in 1999. See General Appropriations Act, Act of May 29, 1997, 75th Leg., R.S., ch. 1452, art. IV, 1997 Tex. Gen. Laws 5535, 6016. Such a result not only seems contrary to common sense, but also would be inconsistent with the purpose of subsection (e), which is to provide a salary formula that allows counties to pay judges less than the amount required by subsection (a). Subsection (a) ties county court judges' salaries closely to district judges' salaries. See TEX. GOV'T CODE ANN. § 25.0005(a) (Vernon Supp. 2000) (providing that county must pay statutory county court judges a salary that is no less than $1,000 less than salary paid to district judges).

We note that the most recent amendment to subsection (e) makes no exception to the salary increase requirements for counties that have already begun to collect fees and costs pursuant to section 51.702 of the Government Code. Id. § 25.0005(e). In other words, if a county initially began collecting fees and costs before the effective date of the 1999 amendment, it can comply with subsection (e) only if, at that initial time, it had increased judges' salaries by at least $28,000. It may be the case that there are no counties in Texas that increased judges salaries by $28,000 when they initially began collecting fees and costs pursuant to section 51.702, since prior to the most recent amendment subsection (e) required initial increases of only $20,000 or $24,000. See Letter from Honorable David L. Hodges, Judge, McLennan County Court at Law, to Elizabeth Robinson, Chair, Opinion Committee, Office of the Attorney General, at 2-3 (Aug. 31, 1999) (on file with Opinion Committee). The result may be that no counties that initially began collecting fees before the effective date of the most recent amendment are able to use the salary formula of subsection (e), but instead must use the formula of subsection (a).

While we may take into account the consequences of a particular construction of a law, see TEX. GOV'T CODE ANN. § 311.023(5) (Vernon 1998), we do not find this result absurd, unreasonable, meaningless or otherwise of a character that would call for a departure from the plain language of the statute. Nor do we find any evidence in the statute's legislative history that this result is contrary to the intent of the legislature. Accordingly, we conclude that a county that did not increase the salaries of its statutory county court judges by at least $28,000 at the time the county initially began collecting fees and costs pursuant to section 51.702 of the Government Code is ineligible to use the salary formula set out in section 25.0005, subsection (e), of the Government Code.

SUMMARY

A county that wishes to use the salary formula for statutory county court judges set out in section 25.0005(e) of the Government Code must, not later than September 1 of the year in which the county initially begins collecting fees and costs under section 51.702, increase the salary of each statutory county court judge in the county to an amount that is at least $28,000 more than the salary the judge was entitled to on May 1 of that year. The term "initially" for purposes of section 25.0005(e) means the very first year that a court begins collecting fees and costs upon approval of the collection by the county commissioners court pursuant to section 51.702 of the Government Code, even if the court reapproves collection in subsequent years.

Yours very truly,

JOHN CORNYN
Attorney General of Texas

ANDY TAYLOR
First Assistant Attorney General

CLARK KENT ERVIN
Deputy Attorney General - General Counsel

ELIZABETH ROBINSON
Chair, Opinion Committee

Barbara Griffin
Assistant Attorney General - Opinion Committee