Untitled Texas Attorney General Opinion ( 2004 )

The Honorable Mark E. Price Opinion No. GA-02 11
San Jacinto County Criminal District Attorney
1 State Highway 150, Room 21 Re: Whether a county judge whom the State
Coldspring, Texas 7733 1 Commission on Judicial Conduct has suspended
from office with pay is entitled to his full salary
(RQ-0160-GA)
Dear Mr. Price:
You ask whether a county judge whom the State Commission on Judicial Conduct (the
“Commission”) has suspended fi-om office with pay is entitled to his full salary, including a state
supplement.’ See TEX.GOV’TCODEANN. 9 25.0015(a) (Vernon 2004) (requiring the state annually
to compensate a county that collects fees under section 5 1.702, Government Code, $35,000 for each
of certain statutory county court judges in the county). On a related matter, you ask whether the
county may pay a car ,allowance to a constable and his deputies when they have been temporarily
suspended with pay by a district judge under chapter 87 of the Local Government Code. See Request
Letter, supra note 1, at 1.
The county judge in your county was indicted for the “intentional[] or knowing[] misuse [of]
government property,” a felony offense, on December 12, 2003. See State Comm’n on Judicial
Conduct, CJC No. 03-0958-CO, Order of Suspension (Dec. 22,2003). The Commission, which has
constitutional authority to suspend from office, “with or without pay,” a state court judge
“immediately on being indicted . . . for a felony offense or charged with a misdemeanor involving
official misconduct,” TEX.CONST.art. V, 5 1-a(6), ordered that the judge be “suspended from office,
with pay” pending further proceedings of the courts or the Commission, State Comm’n on Judicial
Conduct, CJC No. 03-0958-CO, Order of Suspension (Dec. 22,2003). See generaZZy TEX. GOV’T
CODE ANN. 9&33.001-.051 (Vernon 2004) (chapter 33, “State Commission on Judicial Conduct”).
You ask whether the judge is entitled to his full pay, including a supplement paid by the state under
section 25.0015 of the Government Code.2 See Request Letter, supra note 1, at 1.
‘See Letter from Honorable Mark E. Price, San Jacinto County Criminal District Attorney, to Honorable Greg
Abbott, Texas Attorney General (Jan. 8, 2004) (on tile with Opinion Committee, also available at
http://www.oag.state.tx.us) pereinafter Request Letter].
*Telephone Conversation with Honorable Mark E. Price, San Jacinto County Criminal District Attorney (Apr.
l&2004). You inform us that, since the time of your initial request, the judge has been reinstated to his offrce, but you
continue to need an answer to this question. Id.
The Honorable Mark E. Price - Page 2 (GA-02 11)
In our opinion, the Commission’s constitutional authority encompasses authority to order the
state and the county to pay a suspended judge all compensatiorrthe judge normally would receive.
Article V, section l-a(6) of the Texas Constitution plainly authorizes the Commission to suspend
a judge “with or without pay” and does not suggest that a judge suspended with pay would receive
less than the full salary to which he or she is entitled, from all sources. TEX.CONST.art.V, 3 l-a(6).
We further conclude that, absent a contrary construction from the Commission, an order
suspending a judge “with pay” entitles the judge to his or her total salary, including state-paid
supplements. Although the Commission, not this office, is the proper entity to construe the meaning
of its order, cf: Tex. Att’y Gen. Op. No. JC-0346 (2001) at 4 (stating that the attorney general will
not review a court order), the Order of Suspension uses the constitutional phrase “with pay” to
expressly provide that the suspended judge will receive pay:
Having considered the indictment, and having been advised
that the defendant . . . allegedly used government property . . ,. for
unauthorized purposes during his employment as the County Judge
of San Jacinto County, Texas, the. . . Commission. . . concluded that
the offense charged is a felony offense, and determined that [the
judge] should be suspended from office, with pay. . . .
State Comm’n on Judicial Conduct, CJC No. 03-0958-CO, Order of Suspension (Dec. 22,2003).
Section 25.0005 of the Government Code expressly states that a statutory county court judge’s “total
annual salary includes contributions and supplements, paid by the state,” including a supplement
paid under section 25.0015. TEX. GOV’TCODEANN. $25.0005(a) (Vernon 2004).
You ask second about a car allowance paid to a constable and the constable’s deputies, who
you state have been “temporarily suspended with pay by a District Judge under” section 87.017 of
the Local Government Code. See Request Letter, supra note 1, at 1; see aZso TEX.LOC.GOV’TCODE
ANN. $87.017 (Vernon 1999).
We are unable to answer your second question. We have not seen a copy of this order.
Moreover, the court, not this office, is the proper forum for determining what the term “pay’ means
in this particular order. The tial court that issued the order is the fact finder that receives evidence
concerning the amounts at issue, expenses that may be incurred, and information relating to the pay
that constable and deputy constables receive. We have not taken evidence, and we do not resolve
fact issues in the opinion process. See Tex. Att’y Gen. Op. No. GA-01 56 (2004) at 10 (stating that
fact questions cannot be answered in the opinion process). We accordingly defer to the court to
determine whether “pay” for the purposes of the court order includes car allowances.
The Honorable Mark E. Price - Page 3 (GA-02 11)
SUMMARY
Absent a contrary construction from the State Commission on
Judicial Conduct, a county judge whom the Commission has
suspended “with pay” is entitled to receive his or her total salary,
including any supplement from the state.
Very truly yours,
BARRY R. MCBEE
First Assistant Attorney General
DON R. WILLETT
Deputy Attorney General for Legal Counsel
NANCY S. FULLER
Chair, Opinion Committee
Kymberly K. Oltrogge
Assistant Attorney General, Opinion Committee