Untitled Texas Attorney General Opinion ( 2004 )

ATTORNEY GENERAL OF TEXAS
GREG ABBOTT
May 26,2004
The Honorable Tom Maness Opinion No. GA-0193
Jefferson County Criminal District Attorney
Jefferson County Courthouse Re: Whether a county may pay a justice of the
1001 Pearl Street, 3d Floor peace amounts over and above the justice’s
Beaumont, Texas 77701-3545 salary for conducting inquests and performing
magisterial work (RQ-0141-GA)
Dear Mr. Maness:
Gn behalf of the Jefferson County Judge, you ask whether a county may pay a justice of the
peace amounts over and above the justice’s salary for conducting inquests and performing
magisterial work.’
‘Letterfrom Tom Rugg, First Assistant, Civil Division, Jefferson County Criminal District Attorney’s Office,
to Honorable Greg Abbott, Texas Attorney General (Dec. 4,2003) (on tile with Opinion Committee, also available at
http://www.oag.state.tx.us);Letter from John Johnson,Assistantto JeffersonCounty Judge, to Tom Rugg, FirstAssistant,
Civil Division, Jefferson County Criminal District Attorney’s Office (Aug. 28,2003) (on file with Opinion Committee,
also available af http://www.oag.state.fx.us)[hereinafterRequest Letter].
Although the request letter specifically asks whether a county may pay a justice of the peace an hourly wage,
over and above the justice’s salary, for time spent conducting “arraigmnents,“see id. at I, a justice of the peace may not
conduct an arraignment. See TEX.CODEGRIM.PROC.ANN.art. 26.04(a), (c) (Vernon Supp. 2004) (omittingjustices of
the peace from the list ofjudges who may appoint counsel at an arraignment);see Tex. Att’y Gen. Op. No. JM-739
(1987) at 3 (noting that justices of the peace do not conduct arraignments). The term “arraigned”is sometimes used
colloquiallyto indicate that an individual has been taken before a magistrate,but this usage is inconsistentwith statutory
language. See Watsonv. State, 762 S.W.Zd591,594 a4 (Tex. Grim App. 1988) (en bane) (stating that an appearance
before a magistrate under article 15.17 of the Code of Criminal Procedure “is not arraignment in Texas”).
You appear to ask instead about a justice’s service as a magi&ate under articles 14.06 and 15.17of the Code
of Criminal Procedure. See TEX.CODECRIM. PROC.ANN.arts. 14.06,15.17 (Vernon Supp. 2004). Article 2.09 ofthe
Code of Criminal Procedure lists, as officers who are magistrates “withinthe meaning of this Code the justices of
the peace.” Id.art.2.09.
The Honorable Tom Maness - Page 2 (GA-0193)
We have been told that, “for a number of years,” Jefferson County has compensated its
justices of the peace “over and above” their normal salaries for each inquest they conduct. Request
Letter, supra note 1, at 2.
As early as 1971 (the first year for which the county’s budget
document was readily available in the Auditor’s Office), justice ofthe
peace budgets included a line item for “mileage (inquests).” From the
1980s to the present, the justice of the peace budgets included a line
item for either “inquests” or “auto mileage (allowance)” and, since
1999-2000, both.
Id. For the last several years, we understand, the amount paid a justice of the peace per inquest has
been $25. See id. It appears from your description that the Jefferson County justices of the peace
have been receiving a payment for conducting an inquest as well as a transportation allowance for
inquest-related travel expenses. See id. at 2-3. A commissioners court has specific authority to
set an annual travel allowance for elected precinct officers. See TEX. Lot. GOV’T CODE ANN.
§§ 152.011, .013(a) (Vernon 1999). Forpurposes ofthis opinion, andconsistentlywith your express
question, we consider only the supplement paid for conducting the inquest. See Request Letter,
supra note 1, at 1.
We have also been told that, “[slince about 1990,” Jefferson County has compensatedjustices
of the peace for acting as weekend magistrates in accordance with articles 14.06 and 15.17 of the
Code of Criminal Procedure. Id. at 3; see TEX. CODE GRIM. PROC. ANN.arts. 14.06,15.17 (Vernon
Supp. 2004). Article 14.06 requires that an arrested person be timely brought before a magistrate,
who must, consistently with article 15.17, inform the person of the charges and ofthe person’s rights.
TEX. CODE GRIM. PROC. ANN. arts. 14.06,15.17 (Vernon Supp. 2004). You indicate that the county
pays the justices on a daily basisi
This additional compensation is reflected as “overtime” in payroll
records and is budgeted not in the budgets of the individual justices
. . . but in the county’s “general services” account. The current rate
is approximately $240 per day (their regular hourly rate of $29.85 for
a minimum of eight hours, regardless of how long they actually
work). The amount paid varies from individual to individual, from
pay period to pay period and from year to year.
Request Letter, supra note 1, at 3.
The County Judge now suggests that these payments, over and above the justices’ salaries,
are not legal and raises two issues. See id. at 1. First, he asks whether conducting inquests and
serving as a magistrate under articles 14.06 and 15.17 of the Code of Criminal Procedure are
“statutoryduties ofjustices oftbe peace.” Id. Second, ifinquests and magisterial duties are statutory
duties of justices of the peace, he asks “‘what authority exists, if any, to compensate justices . in
an amount over and above their salary for performing those duties.” Id. The County Judge does not
ask whether a county may pay different salaries to the different justices, based upon the estimated
number of hours to be spent conducting inquests or serving as a magistrate, and we therefore do not
The Honorable Tom Maness - Page 3 (GA-0193)
address the issue. See Tex. Att’y Gen. Gp. No. DM-5 l(l991) at 4 (concluding that a commissioners
court constitutionally could establish a pay scale differential for justices of the peace within the
county, based on the number of cases filed in each court).
A justice of the peace is a salaried officer. Article XVI, section 61 requires commissioners
courts “to compensate all justices of the peace on a salary basis.” TEX. CONST. art. XVI, 5 61(b).
Under section 154.002 of the Local Government Code, a salaried precinct officer, such as a justice
of the peace, see TEX. CONST. art. XVI, 9 61(b), “receives the salary instead of all fees, commissions,
and other compensation the officer would otherwise be authorized to keep, except as otherwise
provided by” chapter 154, subchapter A. TEX. Lot. GOV’T CODE ANN. 5 154.002 (Vernon 1999).
Salaried officers generally must deposit any fees received for performing required duties in the
county treasury. See TEX. CONST. art. XVI, 5 61(d).
A county commissioners court annually must set elected county offtcers’ “salar[ies],
expenses, and other allowances” during the commissioners’ “regular budget hearing and adoption
proceedings.” TEX. tic. GOV’T CODE ANN. $152.013(a) (Vernon 1999). At least ten days before
the commissioners’ regular meeting considering the proposed budget, the commissioners must
publish notice apprising the public of increases in salaries, expenses, or allowances, see id.
5 152.013(b), and must specifically notify each elected officer “of the officer’s salary and personal
expenses to be included in the budget,” id. 5 152.013(c). Once the commissioners court has adopted
a budget, section 152.013 of the Local Government Code does not permit it to change an officer’s
salary until it adopts the subsequent annual budget. See Tex. Att’y Gen. Op. No. GA-01 62 (2004)
at 2; Tex. Att’y Gen. LO-95-018, at 2. A salary increase that was not set in accordance with the
statutory notice requirements is invalid. See Tex. Att’y Gen. Op. No. GA-0162 (2004) at 2.
No statute authorizes a county commissioners court to pay a justice an amount, over and
above the justice’s budgeted salary, expenses, and allowances, for inquests or magisterial work. A
county commissioners court may exercise only those powers that the state constitution and statutes
confer upon it, either explicitly or implicitly. See TEX. CONST. art. V, § 18 (providing that a county
commissioners court “shall exercise such powers and jurisdiction over all county business, as is
conferred by this Constitution and the laws of the State”); G@nes v. Galveston County, 861 S.W.2d
861, 863 (Tex. 1993) (stating that “the legal basis for any action taken [by a commissioners court]
must be grounded ultimately in the constitution or statutes”) (and cases cited therein). Indeed,
section 154.004 of the Local Government Code prohibits a county from paying “a fee or
commission” to a precinct officer, such as a justice of the peace, for performing a service.* TEX.
LOC. GOV’T CODE ANN. $154.004(c) (Vernon 1999); see id. 5 154.001 (defining the term “precinct
officer” to include a justice of the peace).
‘As you suggest, prior to 1985, article 1053 ofthe Code of Criminal Procedure expressly authorized a county
topayajwticeS10 forperfotminganinquest. SeeRequestLener,supranote 1, at2;seealsoActofMay 17,1985,69th
Leg., R.S., ch. 269, $5(2), 1985Tex. Gen. Laws 1300,1307 (repealingarticle 1053ofthe Code ofCriminal Procedure).
The 1985 legislation codified titles 1 and 2 of the Code of Crimina1Procedure. See Act of May 17, 1985,69th Leg.,
R.S., ch. 269, 5 1, 1985 Tex. Gen. Laws 1300, 1300. Noting article 1053’s proposed repeal, the Texas Legislative
Council stated that the statutorypredecessor of section 154.004ofthe Local Government Code prohibited a county from
paying a fee or commission to a justice paid an annual salary; article 1053 was, accordingly, “meaningless.” TEX.LEG.
COUNCIL,
REWSOR’SREPORT:
Trm2, CODEOFCRJMINALPROCEDUXE,
at 41,62-63 (1985).
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Consequently, the salary the commissioners court establishes for a justice of the peace in the
annual budget process compensates the justice for all “constitutional and statutory duties.” Tex.
Att’y Gen. Gp. No. GA-0145 (2004) at 5. While a justice has express statutory authority to retain
a fee from third parties for performing nonrequired services, such as marriage ceremonies, see TEX.
Lot. GOV’T CODE ANN. 3 154.005(a) (Vernon 1999); Tex. Att’y Gen. Op. No. GA-0145 (2004) at
5, a justice may not “receive extra compensation for performing . . . official duties prescribed by
law,” Tex. Att’y Gen. Gp. No. DM-397 (1996) at 1. Thus, a commissioners court may not pay a
justice of the peace additional compensation for conducting inquests or serving as a magistrate if
either function is among a justice’s mandatory duties.
We conclude that a justice of the peace has a mandatory duty to perform inquests. Article
49.04 of the Code of Criminal Procedure requires a justice of the peace to “conduct an inquest into
the death of a person who dies in the cotmy in certain circumstances. TEX. CODE CRIM. PROC.
ANN.art. 49.04(a) (Vernon Supp. 2004). The justice must conduct the inquest “immediately or as
soon as practicable after the justice receives notification of the death.” Id. art. 49.05(a). But see id.
art. 49.25, 5 12 (transferring all inquest-related powers and duties from a justice of the peace to a
medical examiner in a county with a medical examiner). As a justice must conduct an inquest when
the statute requires it, a commissioners court may not pay the justice additional compensation for
doing so.
We similarly conclude that a justice of the peace has a mandatory duty to serve as a
magistrate. When an arrested person is taken before a magistrate, “[tlhe magistrate shaNinform the
person arrested” of the charge brought against the person and of the person’s rights. TEX. CODE
CIUM. PROC. ANN. art. 15.17(a) (Vernon Supp. 2004) (emphasis added); see also Exparte Knight,
904 S.W.2d 722,726 (Tex. App.-Houston [lst Dist.] 1995, pet. ref d) (explaining that a justice of
the peace has “two roles”: (1) a justice’s “general criminal jurisdiction, and (2) jurisdiction as a
magistrate”). Consequently, a commissioners court may not pay a justice additional compensation
for serving as a magistrate.
If a county wishes a justice’s salary to reflect time spent conducting inquests or serving as
a magistrate, the commissioners court must address these matters during the normal budget process.
See Tex. Att’y Gen. Gp. No. DM-51 (1991) at 4; see also Tex. Att’y Gen. Gp. No. JC-0389 (2001)
at 5 (stating that a county may pay different salaries to constables in different precincts if each
precinct’s circumstances reasonably require different salaries and if each salary is in itself
reasonable).
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SUMMARY
A county may not pay a justice ofthe peace amounts over and
above the justice’s salary for conducting inquests and serving as a
magistrate.
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