Did the state's FICA contribution for a Galveston County district judge count as salary when calculating county court and probate judge pay?

Texas AG Opinion JM-322: Judge FICA and Salary Base

Plain-English summary

The Galveston County Auditor asked whether state-paid Social Security contributions for district judges counted as salary when calculating the salaries of Galveston County Court Nos. 1 and 2 and the probate court. Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1985/jm0322.pdf

The local statutes set those county judges' salaries at no less than 90 percent of the total salary, including supplements, paid to a Galveston County district judge. Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1985/jm0322.pdf

JM-322 concluded that a district judge's salary included the amount provided in the General Appropriations Act plus any additional county salary supplement. It did not include the state's FICA contribution. Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1985/jm0322.pdf

Article 695h, section 4, expressly said that state contribution payments under the Social Security program "may not be considered compensation under any law of this State." Read with section 5(b), the statute excluded those payments from total judicial compensation. Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1985/jm0322.pdf

The FICA contributions therefore could not be included when calculating the salary base for the county court and probate judges. Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1985/jm0322.pdf

Currency note

This opinion was issued in 1985. 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

What salary formula applied to the Galveston County judges?

The cited local statutes required at least 90 percent of the total salary, including supplements, paid to a Galveston County district judge. Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1985/jm0322.pdf

What did JM-322 count as the district judge's salary?

It counted the state salary set through the General Appropriations Act and any additional salary supplement provided by the Galveston County Commissioners Court. Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1985/jm0322.pdf

Why did state-paid FICA not count?

Article 695h, section 4, directly stated that payment of contributions by the state could not be considered compensation under Texas law. Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1985/jm0322.pdf

Did section 5(b) allow the Legislature to pay a judge's Social Security contribution?

Yes. It allowed the General Appropriations Act to provide state payment at a selected rate and compensation amount, while making any excess the judge's obligation. Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1985/jm0322.pdf

Did the opinion apply only to one local court?

No. It addressed County Court Nos. 1 and 2 and the Galveston County probate court because all three salary statutes used the district-judge compensation measure. Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1985/jm0322.pdf

Background and statutory framework

Articles 1970-342, 1970-342a, and 1970-342b were designed to link the relevant Galveston County judicial salaries to district-judge compensation. JM-322 described the purpose as equalizing judicial salaries within the county. Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1985/jm0322.pdf

V.T.C.S. art. 6813b placed state-official salaries, including district judges, in the General Appropriations Act. V.T.C.S. art. 6819a-28 allowed the Galveston County Commissioners Court to add compensation. Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1985/jm0322.pdf

Article 695h governed Social Security contributions. Section 5(b) addressed contributions for state-paid judges, while section 4 controlled their legal classification as noncompensation. Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1985/jm0322.pdf

Citations and references

• V.T.C.S. article 1970-342, section 9
• V.T.C.S. article 1970-342a, section 11(b)
• V.T.C.S. article 1970-342b, section 11(b)
• V.T.C.S. articles 6813b and 6819a-28
• V.T.C.S. article 695h, sections 1(e), 4, and 5(b)
• Schattman v. Tarrant County, 618 S.W.2d 864 (Tex. Civ. App. - Fort Worth 1981)

Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1985/jm0322.pdf

Source

• Landing page: https://www.texasattorneygeneral.gov/opinions/jim-mattox/jm-0322
• Original PDF: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1985/jm0322.pdf

Original opinion text

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

The Attorney General of Texas

May 28, 1985

Phillip A. Lohec, C.P.A.
Galveston County Auditor
County Courthouse
Galveston, Texas 77550

Opinion No. JM-322

Re: Whether contributions to F.I.C.A. under article 695h, V.T.C.S., constitute a salary supplement to a county court-at-law judge

Dear Mr. Lohec:

Pursuant to your limited authority to request opinions, you ask what constitutes the salary of a district judge sitting in Galveston County for the basis in calculating the salary for the positions of judge of county court nos. 1 and 2, and probate court in Galveston County. Specifically you ask:

Whether the contributions paid for social security under the provision of article 695h, section 5(b), V.T.C.S., constitute a supplement and is used in compiling the salary basis for the positions of Judge of County Court No. 1, No. 2, and Probate Court?

We conclude that section 4 of article 695h, V.T.C.S., specifically excludes these social security contributions from the salary of a district judge sitting in Galveston County. Therefore, these contributions should not be considered in computing the salaries of the judges of county court nos. 1 and 2, and the probate court.

The legislature has provided that:

The Commissioners Court of Galveston County shall fix the yearly salary of the Judge of the County Court No. 1 of Galveston County at a sum not less than 90 percent of the total salary including supplements, paid any District Judge in and for Galveston County. . . . (Emphasis added).

V.T.C.S. art. 1970-342a, §11(b). Identical language has been used to provide for the salaries of the judges of county court no. 2 and the probate court. V.T.C.S. art. 1970-342b, §11(b) (county court no. 2); V.T.C.S. art. 1970-342, §9 (probate court). These statutes were enacted to equalize judicial salaries within Galveston County. Cf. Schattman v. Tarrant County, 618 S.W.2d 864 (Tex. Civ. App. - Fort Worth 1981) (Spurlock, J., dissenting at 866).

The legislature has provided that state salaries of all state officials and employees, including district judges of the several judicial districts, shall be determined by the General Appropriations Act. See V.T.C.S. art. 6813b. The commissioners court of Galveston County may provide additional compensation to judges of district courts of Galveston County. V.T.C.S. art. 6819a-28. Thus, a district judge's salary includes an amount provided by the state legislature in the General Appropriations Act and any additional salary supplement the county commissioners court may wish to provide.

The state's contribution to the Social Security System on behalf of district judges is governed by section 5(b) of article 695h, V.T.C.S. That provision provides in part:

The State is not required to pay any contributions of State-paid judges under the Federal Insurance Contributions Act. However, the Legislature may provide in the General Appropriations Act for the State payment of State-paid judges' contributions under the Federal Insurance Contributions Act at any rate and on any amount of State-paid compensation that it considers appropriate. There is imposed on the services of State-paid judges which are covered by an agreement with the Secretary of Health and Human Services a contribution with respect to wages (as defined in Section 1(e) of this Act) equal to the amount of the employee tax which would be imposed by the Federal Insurance Contributions Act if such services constituted employment within the meaning of that Act. Any contributions in excess of the State payment, if any, prescribed by the General Appropriations Act are the obligations of the State-paid judges.

V.T.C.S. art. 695h, §5(b).

Section 4 of article 695h, V.T.C.S., specifically provides that "[t]he payment of contributions by the State under the program may not be considered compensation under any law of this State." When both section 4 and section 5(b) are read together, it is clear that the legislature did not intend that these payments be considered as part of the total compensation to district judges for purposes of state law.

Accordingly, we conclude that contributions paid by the state under section 5(b) of article 695h, V.T.C.S., should not be included in computing the salary of a district judge sitting in Galveston County for purposes of article 1970-342a.

SUMMARY

Section 4 of article 695h, V.T.C.S., specifically excludes social security contributions paid by the state under section 5(b), article 695h, V.T.C.S., from the salary of a district judge. These contributions should not be used in compiling the salary basis of a district judge to determine the salaries of the judges of county court nos. 1 and 2, and probate court.

Very truly yours,

JIM MATTOX
Attorney General of Texas

TOM GREEN
First Assistant Attorney General

DAVID R. RICHARDS
Executive Assistant Attorney General

ROBERT GRAY
Special Assistant Attorney General

RICK GILPIN
Chairman, Opinion Committee

Prepared by Tony Guillory
Assistant Attorney General

APPROVED:
OPINION COMMITTEE

Rick Gilpin, Chairman
Jon Bible
Colin Carl
Susan Garrison
Tony Guillory
Jim Moellinger
Jennifer Riggs
Nancy Sutton