Can a Texas county leave the county judge out of its longevity pay policy?

Plain-English summary

Leon County's personnel policy pays longevity pay (an extra increment of salary tied to length of service) to full-time county officers and employees whose whole salary comes from the county. The policy leaves out anyone whose salary is supplemented by the State, which in practice means the county judge, because a county judge who does enough judicial work gets a state supplement under Government Code section 26.006. The county attorney asked the AG whether a commissioners court may exclude the county judge from longevity pay precisely because the judge receives that state supplement.

The AG said yes, subject to one guardrail. The commissioners court is the county's governing body and sets compensation for county officers and employees under Local Government Code section 152.011, and that power includes deciding whether and to whom to pay longevity pay. Courts have long recognized the commissioners court's broad discretion to compensate different officers differently based on their responsibilities.

The catch is section 26.006(c). A county judge who performs at least 40 percent judicial functions is entitled to a state supplement equal to 18 percent of a district judge's salary (§ 26.006(a)). To make sure the judge actually keeps the benefit of that supplement, subsection (c) bars the county from reducing the county-funded part of the judge's salary because of the supplement. The AG read this as protecting the judge's existing county pay, not as requiring the county to hand the judge every benefit it gives other employees. So if the county has never paid the judge longevity pay, paying it to others does not "reduce" the judge's county funds, and the judge's reasons for being excluded do not matter. The exclusion is permitted as long as it does not effectively cut the judge's salary to offset the state supplement.

Currency note

This opinion was issued in 2018. 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.

What the opinion meant for those who asked

Leon County and the commissioners court (as the opinion described them): The opinion told the county its longevity pay policy could exclude the county judge who receives a state supplement, provided the policy did not effectively reduce the judge's county-funded salary to offset that supplement.

The county judge (as the opinion described the position): The opinion protected the judge's existing county pay under section 26.006(c), so the supplement could not be clawed back through salary cuts, but it did not entitle the judge to longevity pay the county had never paid the position.

The requesting county attorney (as the opinion described it): The opinion answered that section 26.006(c) does not preclude a longevity pay policy excluding the county judge, and that where county salary funds are untouched, the county's reasons for the exclusion are immaterial under that subsection.

Common questions

Can a Texas county exclude the county judge from longevity pay?
Under this opinion, yes, so long as the exclusion does not effectively reduce the judge's county-funded salary to offset the judge's state salary supplement.

Why does the state supplement matter at all?
Government Code section 26.006(c) bars a county from cutting the county-paid portion of the judge's salary because of the supplement. The point is to make sure the judge, not the county, gets the full benefit of the state money.

Does the county have to give the judge longevity pay because it gives it to others?
No. The AG concluded that if the county has never paid the judge longevity pay, paying it to other officers and employees does not reduce the judge's county funds, so section 26.006(c) is not triggered.

Does the county's reason for excluding the judge matter?
The opinion said that as long as the county has not reduced the county component of the judge's salary, its reasons for leaving the judge out of the longevity policy are immaterial for purposes of section 26.006(c).

What is longevity pay?
The opinion described it as an incremental increase in salary generally based on length of service, and noted prior opinions treat it as an element of salary rather than a mere benefit.

Background and statutory framework

The commissioners court is the county's principal governing body and exercises a core legislative function when it makes the county budget (Henry v. Cox). In doing so it must set compensation for county officers and employees (Tex. Loc. Gov't Code § 152.011), and that authority includes longevity pay (Tex. Att'y Gen. Op. Nos. KP-0135 (2017), KP-0060 (2016)). The court has broad discretion to compensate officers differently in light of their responsibilities (Canales v. Laughlin; Tex. Att'y Gen. Op. Nos. GA-0857 (2011), JC-0026 (1999), H-1161 (1978)). Longevity pay is generally an increment based on length of service and is treated as an element of salary (Tex. Att'y Gen. LO-96-007; Tex. Att'y Gen. Op. No. JC-0438 (2001); Tex. Gov't Code §§ 403.055(f)(1), 659.0445(a)-(b)).

A county judge has two constitutional roles: presiding member of the commissioners court (Tex. Const. art. V, § 18(b)) and presiding judge of the constitutional county court (id. §§ 15, 16). The amount of judicial work varies by county (Tex. Gov't Code §§ 26.041, .103-.353). Section 26.006(a) entitles a county judge who performs at least 40 percent judicial functions to an annual state salary supplement equal to 18 percent of a district judge's compensation. Section 26.006(c) provides that a commissioners court "may not reduce the county funds provided for the salary or office of the county judge as a result of the salary supplement."

The AG read subsection (c) to require that the judge, not the county, receive the full effective benefit of the supplement (Tex. Att'y Gen. Op. No. JC-0397 (2001); cf. Tex. Gov't Code § 41.255(a)-(b), the analogous assistant-prosecutor longevity supplement, which bars reducing salary to offset it). So long as the county honors that directive, subsection (c) does not limit the county's discretion to set the salary it pays its officers, including the county judge. If the county never paid or agreed to pay the judge longevity pay, paying it to others is not a reduction of the judge's county funds, and the reasons for the exclusion are immaterial. The AG concluded subsection 26.006(c) does not preclude a longevity pay policy that excludes the county judge, provided it does not effectively reduce the judge's salary to offset the state supplement.

Citations

Statutes and constitutional provisions:

• Tex. Const. art. V, §§ 15, 16, 18(b)
• Tex. Loc. Gov't Code § 152.011
• Tex. Gov't Code §§ 26.006(a), 26.006(c), 26.041, 41.255(a)-(b), 403.055(f)(1), 659.0445(a)-(b)
• Tex. Att'y Gen. Op. Nos. KP-0135 (2017), KP-0060 (2016), GA-0857 (2011), JC-0438 (2001), JC-0397 (2001), JC-0026 (1999), H-1161 (1978); Tex. Att'y Gen. LO-96-007

Cases:

• Henry v. Cox, 520 S.W.3d 28 (Tex. 2017)
• Canales v. Laughlin, 214 S.W.2d 451 (Tex. 1948)

Source

• Landing page: https://www.texasattorneygeneral.gov/opinions/ken-paxton/kp-0180
• Original PDF: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/2018/kp0180.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

February 15, 2018

The Honorable James Caleb Henson Opinion No. KP-0180
Leon County Attorney
Post Office Box 429 Re: Whether a county commissioners
Centerville, Texas 75833 court may deny a county judge longevity pay
due to receipt of a State salary supplement
pursuant to section 26.006 of the
Government Code (RQ-0173-KP)

Dear Mr. Henson:

   You inform us that the Leon County personnel policy provides for longevity pay to full-time county officers and employees who are not paid by grants and whose total salary is paid by the county. [1] You further state that the longevity pay policy excludes those who "receive a salary supplemented by the State," effectively excluding the county judge. Request Letter at 1. You ask whether a county commissioners court may adopt a longevity pay policy for county officers and employees that excludes the county judge expressly because the judge receives a State judicial supplement. Id.

    The commissioners court is the county's principal governing body, exercising "aspects of legislative, executive, administrative, and judicial functions." Henry v. Cox, 520 S.W.3d 28, 36 (Tex. 2017). The commissioners court exercises a core legislative function when it makes the county's budget. Id. at 36. In doing so, the commissioners court must establish county compensation for its employees and officers. TEX. LOC. GOV'T CODE § 152.011. The commissioners court's authority to set compensation under Local Government Code section 152.011 includes the authority to pay longevity pay. See Tex. Att'y Gen. Op. Nos. KP-0135 (2017) at 2 (observing that compensation under section 152.011 of the Local Government Code can include longevity pay); KP-0060 (2016) at 2 (recognizing the commissioners court's discretion to provide longevity pay to an officer). [2] The commissioners court has discretion to decide the compensation of its employees and officers in light of their individual responsibilities. See Canales v. Laughlin, 214 S.W.2d 451, 453 (Tex. 1948) (stating that a commissioners court has broad discretion in exercising express powers); Tex. Att'y Gen. Op. Nos. GA-0857 (2011) at 3 (recognizing the commissioners court's broad discretion with respect to compensation and the county budget), JC-0026 (1999) at 1 (determining that county may pay longevity pay to its sheriff at a different level than that paid other elected officials), H-1161 (1978) at 2 (determining that the commissioners court had discretion to pay county law enforcement officers different compensation).

    A county judge has two distinct constitutional functions. First, the county judge is the presiding member of the commissioners court, the legislative body of the county with "jurisdiction over all county business." TEX. CONST. art. V, § 18(b). Second, the county judge presides over the constitutional county court, performing judicial functions as the Legislature provides. Id. art. V, §§ 15, 16. The extent of judicial services required of the constitutional county court varies by county. See TEX. GOV'T CODE §§ 26.041, .103-.353. Section 26.006 of the Government Code provides for an annual salary supplement to county judges who perform substantial judicial functions:

               (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.

               (c) The commissioners court in a county with a county judge who is entitled to receive a salary supplement under this section may not reduce the county funds provided for the salary or office of the county judge as a result of the salary supplement ....

Id. § 26.006(a), (c). The supplement in subsection 26.006(a) compensates county judges for performing the requisite amount of judicial functions in addition to their commissioners court duties. See id. § 26.006(a). Subsection 26.006(c) prohibits a county from effectively denying the salary increase from the State component by reducing the county component, "the county funds provided for the salary or office of the county judge." Id. § 26.006(c). Subsection 26.006(c) manifestly requires that the recipient of a State supplement, not the county, receive the full effective benefit of the State supplement. See id.; see also Tex. Att'y Gen. Op. No. JC-0397 (2001) at 2, 4-5 (determining that a county may not pay its share of employment taxes from a county judge's State salary supplement); TEX. GOV'T CODE § 41.255(a)-(b) (analogous statute requiring a county to pay a longevity pay supplement to assistant prosecutors and providing that the county may not "reduce the salary of the assistant prosecutor to offset the longevity pay supplement"). So long as a county honors that legislative directive, subsection 26.006(c) does not limit the county's discretion to determine the salary it will pay its officers and employees, including the county judge. Thus, if a county has never paid or agreed to pay longevity pay to the county judge, paying other officers and employees longevity pay does not "reduce the county funds provided" for the county judge. TEX. GOV'T CODE § 26.006(c). Moreover, provided the county has not reduced the county funds that make up the county component of the judge's salary, its reasons for not including the county judge in the longevity pay policy are immaterial for purposes of subsection 26.006(c). Accordingly, subsection 26.006(c) of the Government Code does not preclude a longevity pay policy that excludes the county judge, provided the policy does not effectively reduce the county judge's salary to offset the county judge's State salary supplement.

                                 SUMMARY

                  Subsection 26.006(c) of the Government Code does not preclude a county policy that excludes a county judge who receives a State salary supplement from receiving longevity pay paid to other officers and employees, provided the policy does not effectively reduce the county judge's salary to offset the county judge's State salary 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

WILLIAM A. HILL
Assistant Attorney General, Opinion Committee

[1] See Letter from Honorable James Caleb Henson, Leon Cty. Att'y, to Honorable Ken Paxton, Tex. Att'y Gen. at 1 (Aug. 17, 2017), https://www.texasattorneygeneral.gov/opinion/requests-for-opinions-rqs ("Request Letter"); see also Leon County Policy on Longevity Pay 4.03 (on file with the Op. Comm.).

[2] Longevity pay is an incremental increase in salary generally based on length of service. Tex. Att'y Gen. LO-96-007, at 2. It "is not merely a benefit, but is an element of salary." Tex. Att'y Gen. Op. No. JC-0438 (2001) at 2; see also TEX. GOV'T CODE §§ 403.055(f)(1) (defining "compensation" as including salary and longevity pay for certain purposes); 659.0445(a)-(b) (longevity pay for certain State-paid judges after 16 years of service).