Attorney General Opinion GA-0694

ATTORNEY GENERAL OF TEXAS GREG ABBOTT February 26, 2009 The Honorable Roy L. Cordes, Jr. Fort Bend County Attorney 301 Jackson Street, Suite 728 Richmond, Texas 77469-3108 Dear Mr. Cordes: Opinion No. GA-0694 Re: Whether a county must consider longevity pay when determining a statutory county courtjudge's salary under Government Code section 25.0005(a) (RQ-0731-GA) Under Government Code section 659.0445, certain district judges who receive a state-paid salary are entitled to "longevity pay" in the amount of $20 per month for each year of service, payable after 16 years of service. See TEX. GOV'T CODE ANN. § 659.0445(a)-(b) (Vernon Supp. 2008). Government Code section 25.0005(a) provides that a statutory county courtjudge who does not engage in the private practice of law "shall be paid a total annual salary" that is "not less than $1,OOOless than the total annual salary received by a district judge in the county." Id. § 25.0005(a). You state that two of Fort Bend County's five district judges receive longevity pay under section 659.0445. 1 You ask whether a county "must consider" the section 659.0445 longevity pay "when determining the salary for a statutory county court judge in accordance with" section 25.0005(a). Request Letter, supra note 1, at 1. A district judge's "total annual salary" in section 25.0005(a), "includes contributions and supplements, paid by the state or a county." TEX. GOV'T CODE ANN. § 25.0005(a) (Vernon Supp. 2008). Section 25.0005 does not, however, define any ofthe relevant terms. The ordinary meaning of "salary" is "a fixed regular payment . . . made by an employer to an employee," while a "supplement" is "something that completes or enhances something else when added to it," and a "contribution" is a "a gift or payment to a common fund." THE NEW OXFORD AMERICAN DICTIONARY 374, 1504, 1707 (2001). Giving the term its ordinary meaning, "total annual salary" in section 25.0005 is broad enough to encompass the amount oflongevity pay received by a district judge in the county. Section 25.0005(a), by its terms, requires that a statutory county court judge be paid not less than $1000 less than the "total annual salary" received by "a district judge in the county." TEX. GOV'T CODE ANN. § 25.0005(a) (Vernon Supp. 2008) (emphasis added). The "word 'a' is lRequest Letter at 2 (available at http://www.texasattomeygeneral.gov). The Honorable Roy L. Cordes, Jr. - Page 2 (GA-0694) synonymous with the word 'any.'" Chavira v. State, 319 S.W.2d 115, 120 (Tex. Crim. App. 1958). Thus, section 25.0005(a) plainly permits a county, in the situation you describe, to choose any ofthe districtjudges' total annual salaries as the baseline when determining a statutory countycourtjudge's salary, including a district judge that does not receive longevity pay.2 See TEX. GOV'T CODE ANN. § 25.0005(a) (Vernon Supp. 2008); see also Allen v. Davis, 333 S.W.2d 441, 444 (Tex. Civ. App.-Amarillo 1960, writ refd n.r.e.) (stating that when a statute is susceptible of two constructions, one ofwhich would favor an officer seeking compensation above his salary and the other which would not, construction should favor government). Accordingly, we conclude that a county may, but is not required tO,consider the longevity pay amount received by some but not all district judges in the county when determining the salary for a statutory county court judge in accordance with Government Code section 25.0005(a). 2We note that Texas Attorney General Opinion GA-0012 concludes that a statutory county courtjudge should receive benefit replacement pay ifhe held office at the time when the district courtjudges received such pay. See Tex. Att'y Gen. Ope No. GA-0012 (2003) at 3. This conclusion was based principally on the "manifest intent of the [L]egislature in [Government Code section 25.0632(c)] to equalize the compensation ofsimilarly situated district and statutory county courtjudges." Id. (emphasis added). Attorney General Opinion GA-0012 derived that intent from the legislative history of section 25.0632(c) addressing only Denton County. See id at 2. We fmd no similar legislative intent regarding.Government Code section 25.0005. The Honorable Roy L. Cordes, Jr. - Page 3 (GA-0694) SUMMARY Based on the plain language ofthe statute, a county may, but is not required to, consider the amount of longevity pay received by some but not all district judges in the county when determining the salary for a statutory county court judge in accordance with Government Code section 25.0005(a). Very truly yours, GREG A OTT Attorney General of Texas ANDREW WEBER First Assistant Attorney General JONATHAN K. FRELS Deputy Attorney General for Legal Counsel NANCY S. FULLER Chair, Opinion Committee Sheela Rai Assistant Attorney General, Opinion Committee