When does a Texas county judge qualify for the state salary supplement?

Plain-English summary

An Austin County Auditor asked the AG what qualifies as a "judicial function" of a county judge, the threshold for claiming a state salary supplement under Government Code section 26.006. That statute entitles a county judge to an annual supplement equal to 18 percent of a district judge's compensation, but only if at least 40 percent of the functions the judge performs are judicial functions, and it requires the judge to file an affidavit to that effect with the Comptroller's judiciary section. The request did not ask about specific tasks, so the AG answered generally.

The AG started with the dual role of a Texas county judge. The judge is the presiding officer of the commissioners court, the county's principal governing body, whose duties mostly involve legislative, executive, and administrative functions like regulating subjects and furnishing services to county residents. The same person also presides over the constitutional county court created by the Texas Constitution, whose procedures and jurisdiction are set by chapter 26 of the Government Code. County courts generally share civil jurisdiction with the justice courts and may have criminal jurisdiction over certain misdemeanors, but a subchapter of chapter 26 expands or limits the jurisdiction of many specific county courts, so the amount of judicial work varies by county.

Because the Legislature did not define "judicial function," and because the salary supplement sits within chapter 26, the AG read the phrase to encompass a county judge's performance of powers and duties authorized by chapter 26. The conclusion: when a county judge exercises the criminal or civil jurisdiction that chapter 26 authorizes, the judge is performing a judicial function for purposes of section 26.006. The AG noted the practical reality, drawn from an Office of Court Administration study, that in more urban counties the county judge typically devotes full attention to administering county government rather than judging.

On the auditor's second question, whether the auditor could refuse to disburse or claw back a supplement the auditor thought was improperly requested, the AG explained the division of responsibility. The county auditor has continual access to and may examine the county judge's records, including any affidavit submitted to the Comptroller. But the supplement comes from the state, and the Comptroller's office accepts the affidavit and disburses the money. So an auditor with concerns about an improperly requested supplement should confer with the Comptroller of Public Accounts about the disbursement, rather than acting unilaterally.

Currency note

This opinion was issued in 2016. 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. The salary figures and the Government Code and Local Government Code provisions cited here, including the appropriated district-judge compensation, have likely changed since 2016, so confirm the current statutes and amounts before relying on these specifics.

What the opinion meant for those who asked

The county auditor (as the opinion described it): The opinion told the auditor that "judicial function" means the chapter 26 county-court powers a county judge exercises, and that, although the auditor may examine the judge's records, the supplement is a state payment the Comptroller handles, so concerns about an improper request should go to the Comptroller rather than being acted on by the auditor alone.

County judges (as the opinion described it): The opinion described which part of a county judge's mixed role counts toward the 40 percent threshold: exercising the county court's criminal or civil jurisdiction under chapter 26 is a judicial function, while presiding over commissioners-court business is generally not.

The Comptroller of Public Accounts (as the opinion described it): The opinion placed responsibility for accepting the affidavit and disbursing the supplement with the Comptroller, and identified the Comptroller as the office an auditor should consult about a questioned supplement.

Common questions

What is the county judge salary supplement?
Government Code section 26.006 gives a county judge an annual state supplement equal to 18 percent of a district judge's compensation if at least 40 percent of the judge's functions are judicial functions, claimed by filing an affidavit with the Comptroller.

What counts as a "judicial function"?
Under this opinion, exercising the criminal or civil jurisdiction authorized by chapter 26 of the Government Code, which governs the constitutional county courts. The AG read the undefined phrase in light of its placement in chapter 26.

Does presiding over the commissioners court count?
The opinion described commissioners-court duties as largely legislative, executive, and administrative, in contrast to the chapter 26 county-court jurisdiction that constitutes the judicial function.

Why does it vary from county to county?
Because statutes in chapter 26 expand or limit the jurisdiction of specific county courts, so how much judicial work a county judge does depends on the particular county court.

Can a county auditor block a supplement the auditor thinks is improper?
The opinion said the auditor may examine the judge's records, but because the supplement is a state payment the Comptroller disburses, an auditor with concerns should confer with the Comptroller of Public Accounts.

Background and statutory framework

Government Code section 26.006 entitles a county judge to an annual state salary supplement equal to 18 percent of a district judge's compensation under the General Appropriations Act if at least 40 percent of the judge's functions are judicial functions, and requires the judge to file an affidavit to that effect with the Comptroller's judiciary section (Tex. Gov't Code § 26.006(a)-(b); see id. § 659.012(a)(1)). The county judge is the presiding officer of the commissioners court, the county's principal governing body, whose duties include legislative, executive, administrative, and some judicial functions, but which generally acts as part of the legislative branch when regulating subjects and furnishing services (Tex. Loc. Gov't Code § 81.001(b); Tex. Const. art. V, § 18(b); Comm'rs Ct. of Titus Cty. v. Agan, 940 S.W.2d 77, 79 (Tex. 1997); Comm'rs Ct. of Shelby Cty. v. Ross, 809 S.W.2d 754, 757 (Tex. App.-Tyler 1991, no writ); see Tex. Loc. Gov't Code §§ 240.002(a), 352.001(a), 561.001(a)).

The Texas Constitution also establishes a county court in each county and provides for the county judge to preside over it, with chapter 26 of the Government Code governing the procedures and jurisdiction of these constitutional county courts (Tex. Const. art. V, §§ 15, 16; Tex. Gov't Code §§ 26.001-.353). A county court generally has concurrent civil jurisdiction with the justice courts and may have criminal jurisdiction over certain misdemeanors, while a subchapter of chapter 26 expands or limits the jurisdiction of specific county courts (Tex. Gov't Code §§ 26.042(a), 26.045(a), 26.176, 26.327). Reading "judicial function" in the context of its placement in chapter 26, the AG concluded the phrase encompasses a county judge's exercise of the powers and duties chapter 26 authorizes (Tex. Adjutant Gen.'s Office v. Ngakoue, 408 S.W.3d 350, 354 (Tex. 2013)).

The county auditor has continual access to and may examine and investigate the correctness of the records of any county officer, including a county judge's record of an affidavit submitted to the Comptroller under section 26.006 (Tex. Loc. Gov't Code § 115.001(1)). But because the supplement is paid from the state and the Comptroller accepts the affidavit and disburses the supplement, an auditor with concerns about an improperly requested supplement should confer with the Comptroller of Public Accounts (Tex. Gov't Code § 26.006(a)).

Citations

Constitutional and statutory provisions:

• Tex. Const. art. V, §§ 15, 16, 18(b) (county courts and commissioners court)
• Tex. Gov't Code § 26.006(a)-(b) (county judge salary supplement)
• Tex. Gov't Code §§ 26.001-.353 (county court procedures and jurisdiction)
• Tex. Gov't Code §§ 26.042(a), 26.045(a), 26.176, 26.327 (general and specific county-court jurisdiction)
• Tex. Gov't Code § 659.012(a)(1) (district judge salary)
• Tex. Loc. Gov't Code § 81.001(b) (county judge as presiding officer)
• Tex. Loc. Gov't Code §§ 240.002(a), 352.001(a), 561.001(a) (county regulatory and service powers)
• Tex. Loc. Gov't Code § 115.001(1) (county auditor access to records)

Cases:

• Comm'rs Ct. of Titus Cty. v. Agan, 940 S.W.2d 77 (Tex. 1997)
• Comm'rs Ct. of Shelby Cty. v. Ross, 809 S.W.2d 754 (Tex. App.-Tyler 1991, no writ)
• Tex. Adjutant Gen.'s Office v. Ngakoue, 408 S.W.3d 350 (Tex. 2013)

Texas Attorney General opinions:

• Tex. Att'y Gen. Op. No. GA-0426 (2006)

Source

• Landing page: https://www.texasattorneygeneral.gov/opinions/ken-paxton/kp-0090
• Original PDF: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/2016/kp0090.pdf

Original opinion text

Best-effort transcription from the official PDF. Minor extraction artifacts were corrected; the linked PDF is authoritative.

KEN PAXTON
ATTORNEY GENERAL OF TEXAS

May 23, 2016

Mr. Billy M. Doherty Opinion No. KP-0090
Austin County Auditor
1 East Main Street Re: What qualifies as a "judicial function" of a
Bellville, Texas 77418 county judge such that the judge may claim a
state salary supplement under section 26.006 of
the Government Code (RQ-0078-KP)

Dear Mr. Doherty:

    Your predecessor requested an opinion concerning the statutorily-authorized state salary supplement for a county judge under Government Code section 26.006(a). [1] Section 26.006 states, in relevant part:

            (a) A county judge is entitled to an annual salary supplement from the state in an amount equal to 18 percent of the annual compensation provided for a district judge in the General Appropriations Act if at least 40 percent of the functions that the judge performs are judicial functions. [2]

            (b) To receive a supplement under Subsection (a), a county judge must file with the comptroller's judiciary section an affidavit stating that at least 40 percent of the functions that the judge performs are judicial functions.

TEX. GOV'T CODE § 26.006(a)-(b) (footnote added). The first question asks what qualifies as a "judicial function" such that a county judge may claim the salary supplement. Request Letter at 1. The request does not ask about any specific tasks, and our advice is therefore general in nature.

   To answer this question, it is necessary to first consider the various roles of a county judge. By statute, the county judge serves as "the presiding officer of the commissioners court." TEX. LOC. GOV'T CODE § 81.001(b). The Texas Constitution establishes the commissioners court as the principal governing body of the county, and the duties of commissioners courts "include aspects of legislative, executive, administrative, and judicial functions." Comm'rs Ct. of Titus Cty. v. Agan, 940 S.W.2d 77, 79 (Tex. 1997); see TEX. CONST. art. V, § 18(b). Throughout the Local Government Code, the Legislature has delegated to counties authority to regulate certain subject matter and furnish various services to county residents. See, e.g., TEX. LOC. GOV'T CODE §§ 240.002(a) (authorizing the commissioners court to "regulate the keeping of a wild animal in the county"), 352.001(a) (authorizing the commissioners court to "furnish fire protection" to residents of the county); 561.001(a) (authorizing a county to acquire property "to provide for flood control and water outlets" and giving the county eminent domain authority to do so). In performing these and similar functions, the commissioners court generally acts "as part of the legislative branch of government." See Comm'rs Ct. of Shelby Cty. v. Ross, 809 S.W.2d 754, 757 (Tex. App.-Tyler 1991, no writ).

    In addition to the role on the commissioners court, article V, sections 15 and 16 of the Texas Constitution establish a county court in each county in the state and provide for the county judge to preside over the county court. TEX. CONST. art. V, §§ 15, 16. Chapter 26 of the Government Code governs the procedures and jurisdiction of these constitutional county courts. See TEX. GOV'T CODE §§ 26.001-.353. Unless otherwise specified, a county court "has concurrent jurisdiction with the justice courts" in certain civil cases, and may also have criminal jurisdiction over certain misdemeanors. See id. §§ 26.042(a), .045(a). Subchapter E of chapter 26, however, contains numerous statutes that may expand or limit the jurisdiction of specific county courts. See id. §§ 26.103-.353. For example, section 26.176 expands the jurisdiction of the County Court of Fisher County to have "original concurrent jurisdiction with the justice courts in all civil matters in which the justice courts have jurisdiction under general law," whereas, section 26.327 limits the County Court of Travis County to "the general jurisdiction of a probate court" with "no other civil or criminal jurisdiction." Id. §§ 26.176, .327. [3] Thus, the extent to which a county judge performs functions or duties under chapter 26 will depend on the specific county court at issue. The Office of Court Administration has explained that in practice some county courts perform extensive judicial functions while others do not, noting that "[i]n more urban counties, the county judge typically devotes his or her full attention to the administration of county government." [4]

    The Legislature has not expressly defined the phrase "judicial function" as used in Government Code section 26.006; however, the state salary supplement for county judges is located within chapter 26. Thus, it would appear that the Legislature intended "judicial function" to encompass a county judge's performance of powers and duties authorized by chapter 26. See Tex. Adjutant Gen.'s Office v. Ngakoue, 408 S.W.3d 350, 354 (Tex. 2013) (explaining that courts read a statute in its context and view the statute as a whole). Thus, when a county judge is exercising criminal or civil jurisdiction as authorized by chapter 26 of the Government Code, the county judge is performing a judicial function. See Tex. Att'y Gen. Op. No. GA-0426 (2006) at 5 (concluding that "when a county judge sits as a magistrate, he performs judicial functions").

    We are also asked whether a county auditor may "refrain from disbursing or return to the State any supplement the auditor believes has been improperly requested." Request Letter at 1. In order to receive the supplement, the county judge must file with the comptroller an affidavit "stating that at least 40 percent of the functions that the judge performs are judicial functions." TEX. GOV'T CODE § 26.006(b). The county auditor has "continual access to and shall examine and investigate the correctness of ... the books, accounts, reports, vouchers, and other records of any officer." TEX. LOC. GOV'T CODE § 115.001(1). Pursuant to such authority the auditor is authorized to examine and investigate the county judge's records, including any record of an affidavit submitted to the comptroller pursuant to section 26.006 requesting a salary supplement. However, the salary supplement provided under section 26.006 is "from the state," and the Office of the Comptroller is charged with accepting the affidavit and disbursing the supplement. TEX. GOV'T CODE § 26.006(a). [5] Thus, to the extent that an auditor has concerns regarding an improperly requested salary supplement under Government Code section 26.006, the auditor should confer with the Comptroller of Public Accounts regarding disbursing the supplement.

[1] See Letter from Ms. Betty Jez, Austin Cty. Auditor, to Honorable Ken Paxton, Tex. Att'y Gen. (Nov. 20, 2015), https://www.texasattorneygeneral.gov/opinion/requests-for-opinions-rqs ("Request Letter").

[2] The annual compensation for a district judge provided in the Eighty-fourth Legislature's General Appropriations Act is $140,000. See General Appropriations Act, 84th Leg., R.S., ch. 1281, § 1, 2015 Tex. Gen. Laws 4343, 4894; see also TEX. GOV'T CODE § 659.012(a)(1) (providing that "a judge of a district court is entitled to an annual salary from the state of at least $125,000"). Eighteen percent of $140,000 is $25,200.

[3] Chapter 26 of the Government Code does not include a provision specific to Austin County. See TEX. GOV'T CODE §§ 26.103-.353.

[4] OFFICE OF COURT ADMIN., STUDY ON THE ADEQUACY AND APPROPRIATENESS OF ADDITIONAL COMP. PAID TO CERTAIN COUNTY JUDGES 3 (2014), www.txcourts.gov/media/683099/County-Judge-Salary-Study-FINAL.pdf.

[5] The Eighty-fourth Legislature's General Appropriations Act appropriates $2,155,000 to the Judiciary Section of the Comptroller's Department for purposes of "Salary Supplement per Gov. Code 26.006." See General Appropriations Act, 84th Leg., R.S., ch. 1281, § 1, 2015 Tex. Gen. Laws 4343, 4895.

                                  SUMMARY

          When a county judge is exercising criminal or civil jurisdiction as authorized by chapter 26 of the Government Code, the county judge is performing a judicial function for purposes of section 26.006.

          To the extent that a county auditor has concerns regarding an improperly requested salary supplement under Government Code section 26.006, the auditor should confer with the Comptroller of Public Accounts regarding disbursing the supplement.

                                         Very truly yours,

                                         KEN PAXTON
                                         Attorney General of Texas

JEFFREY C. MATEER
First Assistant Attorney General

BRANTLEY STARR
Deputy First Assistant Attorney General

VIRGINIA K. HOELSCHER
Chair, Opinion Committee