Can a Texas county pay court employees a one-time salary supplement from refunded judicial funds?

Plain-English summary

The Comptroller deposited $962.42 of "excess contributions" into Wharton County's account under section 26.008 of the Government Code, money that by statute can be used only for court-related purposes in support of the judiciary, as provided by section 21.006. The county judge directed the treasurer to pay that amount to a court employee as a salary supplement. The county attorney asked the Attorney General two things: whether a salary supplement to court staff is a "court-related purpose," and whether a one-time supplement would be an illegal "bonus."

On the first question, the opinion concluded that compensating court personnel is a court-related purpose. It relied on a 1999 opinion, JC-0158, which read the identical "court-related purposes for the support of the judiciary" language in a parallel statute (section 25.0016) to include "salaries and other expenses related to the operation of the courts." Because the wording of sections 26.008 and 25.0016 is the same, the opinion concluded the refunded money may be spent on the compensation of court employees.

On the "bonus" question, the opinion turned to article III, section 53 of the Texas Constitution, which forbids a county from granting extra compensation to a public officer, agent, servant, or contractor after service has been rendered. The point of that provision is to stop counties from giving away public money for past work the public will get nothing more in return for. Drawing on a line of opinions (JM-1113, JM-1253, JC-0026, JC-0123), the opinion restated the rule: a retroactive increase for work already performed is unconstitutional, but a prospective increase, fixed before the work is done, is fine. The opinion stressed it cannot find facts in the opinion process, so it could not say which category this $962.42 payment fell into; it could only state the legal rule.

Currency note

This opinion was issued in 2001. Subsequent statutory amendments, court decisions, or later Attorney General opinions may have changed the analysis. Treat this page as historical context, not current legal advice. In fact, the opinion noted that House Bill 2300 would repeal the parallel section 25.0016 and effectively overrule JC-0158 by operation of law, though it considered the "court-related purpose" reasoning still sound. Verify the current Government Code provisions before relying on anything here.

What the opinion meant for those who asked

County officials and commissioners courts (what the opinion held for them): The opinion held that section 26.008 excess-contribution money may be spent on the compensation of court personnel, because that is a court-related purpose for the support of the judiciary.

Court employees (what the opinion held for them): The opinion held that whether a one-time supplement is permissible depends on timing: a payment for work already finished would be an unconstitutional retroactive increase, while a supplement set up before the work is done would not be.

The requesting county (what the opinion held for them): The opinion held that it could not determine, on the limited facts and without fact-finding, whether this specific $962.42 payment was retroactive or prospective; it gave only the governing legal rule.

Common questions

Can refunded judicial funds pay court employees in Texas?
Under this opinion, yes. The opinion concluded that compensating court personnel is a court-related purpose for the support of the judiciary within sections 26.008 and 21.006.

Is a one-time salary supplement an illegal bonus?
It depends on timing. The opinion explained that a retroactive increase for work already performed violates article III, section 53, while a prospective increase does not.

Why does timing matter so much?
The opinion described article III, section 53 as preventing counties from giving away public money as extra compensation for services already rendered, for which the public gets no return.

Did the AG decide whether the Wharton County payment was legal?
No. The opinion stressed that it does not find facts in the opinion process, so it could only state the rule, not apply it to the specific payment.

Background and statutory framework

Excess contributions deposited under section 26.008 of the Government Code may be used "only for court-related purposes for the support of the judiciary as provided by Section 21.006." Tex. Gov't Code Ann. §§ 26.008(b), 21.006 (Vernon 1988 & Supp. 2001). The opinion read that language the same way it had read the identical phrase in the parallel statute, section 25.0016(b), in Attorney General Opinion JC-0158 (1999), which held the funds could pay statutory county court judges' salaries and that court-related purposes "include salaries and other expenses related to the operation of the courts." Tex. Gov't Code Ann. § 25.0016(b) (Vernon Supp. 2001). The opinion noted House Bill 2300 would repeal section 25.0016. Tex. H.B. 2300, 77th Leg., R.S. (2001).

Article III, section 53 of the Texas Constitution forbids a county or municipal authority from granting "any extra compensation, fee or allowance to a public officer, agent, servant or contractor, after service has been rendered." Tex. Const. art. III, § 53. The opinion drew its retroactive-versus-prospective rule from prior opinions JM-1113 (1989) (no retroactive merit raises), JM-1253 (1990) (bonus from drug-seizure funds allowed only if approved before services rendered), JC-0026 (1999) (longevity pay may be adjusted prospectively, not retroactively), and JC-0123 (1999) (policy change cannot be applied retroactively to give "extra compensation"). It also reiterated, citing JC-0020 (1999), DM-98 (1992), and H-56 (1973), that this office cannot find facts in the opinion process.

Citations

Constitutional and statutory provisions:

• Tex. Const. art. III, § 53
• Tex. Gov't Code Ann. §§ 21.006, 26.008(b), 25.0016(b) (Vernon 1988 & Supp. 2001)

Prior Attorney General opinions:

• Tex. Att'y Gen. Op. Nos. JC-0158 (1999); JM-1113 (1989); JM-1253 (1990); JC-0026 (1999); JC-0123 (1999); JC-0020 (1999); DM-98 (1992); H-56 (1973)

Source

• Landing page: https://www.texasattorneygeneral.gov/opinions/john-cornyn/jc-0376
• Original PDF: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/2001/jc0376.pdf

Original opinion text

Best-effort transcription from the official scanned PDF. Minor character-level errors from the source OCR have been corrected; the linked PDF is authoritative. One digit of the request-letter number was illegible in the source and is marked with an underscore.

OFFICE OF THE ATTORNEY GENERAL . STATE OF TEXAS

JOHN CORNYN

May 11, 2001

The Honorable Karen H. Meinardus
Wharton County Attorney
103 South Fulton
Wharton, Texas 77488

Opinion No. JC-0376

Re: Whether excess contributions refunded to a county under section 26.008 of the Government Code may be paid as one-time salary supplements to employees of a county court (RQ-031_-JC)

Dear Ms. Meinardus:

You have asked this office whether a "one-time salary supplement to court personnel" constitutes a court-related purpose within the meaning of section 21.006 of the Government Code, or whether such a payment "would . . . be prohibited as a 'bonus'?" We conclude that the use of moneys from the judicial fund created by section 21.006 for the compensation of court personnel is a court-related purpose. See Tex. Att'y Gen. Op. No. JC-0158 (1999) at 3 (court-related purposes include "salaries and other expenses related to the operation of the courts"); see also TEX. GOV'T CODE ANN. § 21.006 (Vernon 1988). As to the question of whether a "bonus" is prohibited, retrospective increases to an already-established salary after services have been rendered would violate article III, section 53 of the Texas Constitution. Prospective increases in salary, however, are another matter.

As you explain the situation giving rise to your request, the Comptroller of Public Accounts deposited the sum of $962.42 in the account of Wharton County. See Request Letter, supra note 1, at 1. This deposit constituted "excess contributions" within the meaning of section 26.008 of the Government Code. Accordingly, it is "to be used only for court-related purposes for the support of the judiciary as provided by Section 21.006 [of the Government Code]." TEX. GOV'T CODE ANN. § 26.008(b) (Vernon Supp. 2001). "On November 17, 2000 the Constitutional County Judge directed that the Treasurer pay the $962.42 to a court employee as a salary supplement." See Request Letter, supra note 1, at 1. You ask first whether a salary supplement to a court employee is a "court-related purpose."

(Footnote: Letter from Honorable Karen H. Meinardus, Wharton County Attorney, to Honorable John Cornyn, Attorney General of Texas (Nov. 27, 2000) (on file with Opinion Committee) [hereinafter Request Letter].)

This office considered a related question in Attorney General Opinion JC-0158. In that opinion, we considered whether funds distributed to the counties under section 25.0016 of the Government Code, which parallels section 26.008, could be used for the salaries of statutory county court judges and concluded that the funds could be used for that purpose. See Tex. Att'y Gen. Op. No. JC-0158 (1999). Noting that section 25.0016, like section 26.008, requires that the funds in question be "used only for court-related purposes for the support of the judiciary as provided by Section 21.006," see TEX. GOV'T CODE ANN. § 25.0016(b) (Vernon Supp. 2001), Attorney General Opinion JC-0158 concludes that "such purposes include salaries and other expenses related to the operation of the courts." Tex. Att'y Gen. Op. No. JC-0158 (1999) at 3. Given that the language of both sections is identical, we conclude that funds distributed to the counties under section 26.008, like those distributed pursuant to section 25.0016, may be expended for the compensation of court employees.

(Footnote: We note that the passage of House Bill 2300, repealing section 25.0016, will effectively overrule Attorney General Opinion JC-0158 (1999) by operation of law. However, the opinion's analysis of the meaning of the phrase "court-related purpose" in our view remains sound. See Tex. H.B. 2300, 77th Leg., R.S. (2001).)

You next ask whether a "one-time salary supplement . . . would . . . be prohibited as a 'bonus'?" See Request Letter, supra note 1, at 1. We presume that your concern here is based on article III, section 53 of the Texas Constitution, which forbids "any county or municipal authority to grant, any extra compensation, fee or allowance to a public officer, agent, servant or contractor, after service has been rendered . . . ." TEX. CONST. art. III, § 53 (emphasis added). As the Interpretive Commentary to this section puts it, the purpose of this section is "to prevent the counties or municipalities from freely giving away the public moneys for services previously rendered or for which no valid legal authorization existed for which the public would receive no return." Id. interp. commentary (Vernon 1977).

As this office has frequently noted, the key concern here is that public compensation not be increased retrospectively. Thus, in Attorney General Opinion JM-1113, we wrote that "the fact that [a] commissioners court budgeted funds for merit raises does not give the court authority to make individual raises retroactive to the date on which funds were available for merit raises." Tex. Att'y Gen. Op. No. JM-1113 (1989) at 3. Attorney General Opinion JM-1253 holds that a prosecutor could pay a bonus from drug seizure funds only if the commissioners court had approved a bonus plan as part of compensation before services were rendered. See Tex. Att'y Gen. Op. No. JM-1253 (1990) at 2-3. Similarly, in Attorney General Opinion JC-0026, we found that while a commissioners court might prospectively adjust the rate of longevity pay for a county sheriff, making such an adjustment retroactive would fall afoul of section 53, see Tex. Att'y Gen. Op. No. JC-0026 (1999); and in Attorney General Opinion JC-0123, we determined that, where a county's personnel policy credited unused vacation time to an employee on the anniversary of his starting date, an employee who resigned before that anniversary to become a county officer lost such unused leave. See Tex. Att'y Gen. Op. No. JC-0123 (1999). While in that case the county could prospectively change that policy, it could not apply such a change retroactively, because "[o]therwise . . . the officer would receive 'extra compensation' for the work he performed as a county employee." Id. at 2. The rule, as we expressed it in that opinion, is that "an increase in benefits approved after the work has been performed may not be applied retroactively to work that has already been performed." Id. In short, additional payments made for work already done would violate article III, section 53. On the other hand, a prospective increase in compensation or benefits does not.

We have only limited information as to this particular instance, and in any case cannot find facts in the opinions process. See Tex. Att'y Gen. Op. Nos. JC-0020 (1999) at 2; DM-98 (1992) at 3; H-56 (1973) at 3. Accordingly, we can only offer our view on the purely legal question involved, which is, as we have said, that a retroactive increase in compensation is constitutionally impermissible, but a prospective one is not.

SUMMARY

Compensation of court personnel is a "court-related purpose" within the meaning of section 21.006 of the Government Code. Retroactive increases in compensation for services already rendered violate article III, section 53 of the Texas Constitution. Prospective increases in compensation do not.

JOHN CORNYN
Attorney General of Texas

ANDY TAYLOR
First Assistant Attorney General

SUSAN D. GUSKY
Chair, Opinion Committee

James E. Tourtelott
Assistant Attorney General - Opinion Committee