Untitled Texas Attorney General Opinion ( 2010 )

ATTORNEY GENERAL OF TEXAS
GREG ABBOTT
September 22, 20 I 0
The Honorable R. Kelton Conner Opinion No. GA-0799
Hood County Attorney
1200 West Pearl Street Re: Compensation of judges serving on a juvenile
Granbnry, Texas 76048 board (RQ-0861-GA)
Dear Mr. Conner:
You ask, on behalf of the Hood County Commissioners Court ("Commissioners Court"),
'" [w]ho has the authority and responsibility to establish, increase, decrease or eliminate the amount
of compensation to be paid to the judges serving on the Juvenile Board of Hood County[.]''''
A brief attached to your request explains that the Hood County Juvenile Board ("Board")
"was created under [c]hapter 152, Human Resources Code [s ]ubchapters A and B.,,2 Subchapters
A and B both contain provisions related to the compensation of the Board. Subchapter A provides
that "[t]he compensation authorized under this chapter for a judge serving on a juvenile board is in
addition to all other compensation provided or allowed by law for a judge." TEx. HUM. REs. CODE
ANN. § 152.0003 (West Supp. 2010). Subchapter B provides that "[s]ervice on ajuvenile board by
a judge is an additional duty of office" and that "[t]he commissioners court may reasonably
compensate each member ofthe juvenile board for the member's additional duties." Id. § 152.0034
(a)-(b) (West 2001) (emphasis added).
In construing section 152.0034, we "ascertain and give effect to the Legislature'S intent as
expressed by the statute's language" and "we give meaning to the language consistent with other
provisions in the statnte." Presidio Indep. Sch. Dist. v. Scott, 309 S.W.3d 927, 930 (Tex. 2010). We
consider first the meaning of the term "may" as used in section 152.0034(b). As previous attorney
lRequest Letter (available at http://www.texasattomeygeneral.gov).
'Briefat I (available athttp://www.texasattomeygeneral.gov). In addition, you clarifY that "Hood County does
not have a Family District Coutt and no provisions for Hood County are set forth in" subchapter D of chapter 152.
Request Letter; see also TEX. HUM. RES. CODE ANN. §§ 152.0051-.0055 (West 2001) ("Subchapter C: County Juvenile
Board in Counties with a Family District Court"). It is, therefore, our understanding that neither subchapter C nor D of
chapter 152 are applicable to the Board. We also note that certain sections of subchapter A do not apply to the Board.
See TEX. HUM. RES. CODE ANN. § 152.0040 (West2001) (providingthat"[s]ections 152.0002, 152.0004, 152.0005, and
152.0009 do not apply to ajuvenile board operating under" subchapter B).
The Honorable R. Kelton Conner - Page 2 (GA-0799)
general opinions explain, in construing a statute, "the use of the word 'may' as opposed to 'shall'
generally indicates discretion or choice between two or more alternatives, but the context in which
the word appears must be the controlling factor." Tex. Att'y Gen. Op. No. JC-0517 (2002) at 4
(quoting Tex. Att'y Gen. LO-93-60, at 1-2); see also Tex. Att'y Gen. Op. No. GA-0622 (2008)
at 3 ("The word 'may' denotes discretion not to do something.") (citing Texas Government Code
section 311.016(1)). Nothing in the language of section 152.0034 indicates that the Legislature
intended to use the tenn "may" in anything but its usual sense. Moreover, the term "may" in section
152.0034(b) is qualified by the term "reasonably." TEx. HUM. REs. CODE ANN. § 152.0034(b) (West
2001). It would have been unnecessary to qualifY the authority by inserting the word "reasonably"
if the Legislature had not intended to grant a commissioners court discretionary authority over the
amount of compensation ofa board. Cf Old Am. Cnty. Mut. Fire Ins. Co. v. Sanchez, 149 S.W.3d
111, 115 (Tex. 2004) (presuming that every word of a statute is included or excluded for a reason).
Considering section 152.0034 in the context of subchapter B also indicates the
commissioners court has the discretion, but not the duty, to compensate a juvenile board. The very
next section of subchapter B uses the term "shall" in referring to the commissioners court's duty to
reimburse juvenile board members for their actual and necessary expenses. See TEX. HUM. REs.
CODE ANN. § 152.0035 (West 2001) ("The county shall reimburse ajuvenile board member for the
member's actual and necessary expenses incurred in performing official duties on the board.")
(emphasis added); see also TEx. GOV'T CODE ANN. § 311.016(2) (West 2005) (explaining that the
term "shall" imposes a duty unless the statute expressly provides otherwise or the context necessarily
requires a different construction). Had the Legislature intended to impose a duty on the
commissioners court to compensate a juvenile board under section 152.0034(b), it would have
similarly used the word shall. 3 Cf Old Am. Cnty. Mut. Fire Ins. Co., 149 S.W.3d at 115 (presuming
that every word of a statute is included or excluded for a reason).
Finally, we note that prior attorney general opinions have construed other provisions of
chapter 152 to authorize a commissioners court to set the amount of compensation of a juvenile
board: See Tex. Att'y Gen. Op. Nos. GA-0715 (2009) at 2 (construing Human Resources Code
section 152.0971), DM-103 (1992) at 2 (construing Human Resources Code section 152.0411(c)).
Thus, our conclusion here is consistent with other provisions in chapter 152 in regard to the
relationship between a commissioners court and a juvenile board as to the compensation ofthe board
members.
'In addition, as evidenced by certain statutes pertaining to specific juvenile boards, the Legislature does not
believe it imperative to compensate those serving on a juvenile board. See, e.g., TEX. HUM. RES. CODE ANN. §§
152.0791(e) (West 2001) (providing that public members of the Falls County Juvenile Board serve without
compensation); 152.0901(c) ("The juvenile board members [of Galveston County] do not receive compensation for
serving on the juvenile board" but shall be paid $75 per month for performing certain duties).
'The exact scope of that authority may, of course, differ depending upon the statute at issue. For example, the
Legislature sometimes establishes a statutory minimmn and maximmn amount of compensation for a juvenile board
within which a commissioners court must act. See Tex. All'y Gen. Op. No. DM-103 (1992) (construing Hmnan
Resources Code section 152.0411(c)).
The Honorable R. Kelton Conner - Page 3 (GA-0799)
Having examined section 152.0034(b)'s express terms in the context of subchapter B, we
conclude that section 152.0034(b) grants a commissioners court discretionary authority over the
compensation of a juvenile board member. See Tex. Att'y Gen. LO-94-055, at 3 ("The
commissioners court also has a role in determining the district judge's compensation. It may ...
compensate the district judge for serving on the juvenile board [under section 152.0034]."). It is our
opinion that the Commissioners Court has authority under section 152.0034(b) to establish, increase,
decrease, or eliminate the amount of compensation to be paid to the judges serving on the Board. 5
'One briefreceived by our office suggests that this conclusion conflicts with state law and prior attorney general
opinions that address the general fInancial independence of a juvenile board. See Brief from Honorable Vincent J.
Messina, Hood County Court at Law Judge, to Nancy Fuller, at 2-3 (Mar. 26, 2010) (citing, for example, Local
Government Code section 140.003, which provides that a juvenile board is a specialized local entity and thatthe county
disburses and cares for its funds as the entity directs). We disagree. A juvenile board has general fInancial independence
only to the extent that a statutory provision does not explicitly provide otherwise. Here we have a statute that expressly
provides that the commiSsioners court has discretionary authority to compensate the members of the juvenile board.
Moreover, none of the opinions cited in the brief construe section I 52.0034(b) of the Human Resources Code. See
generally, e.g., Tex. Att'y Gen. Op. Nos. JC-0209 (2000) (regarding ajuvenile board's authority to contract with an
attorney to represent it in litigation); JC-0085 (1999) (regarding the authority of commissioners court to set salaries for
employees of a juvenile probation department); DM-460 (1997) (regarding a juvenile board's authority to enter into
contracts or authorize expenditures for the juvenile probation department).
The Honorable R. Kelton Conner - Page 4 (GA-0799)
SUMMARY
Pursuant to section lS2.0034(b) of the Human Resources
Code, the Hood County Commissioners Court has the authority to
establish, increase, decrease, or eliminate the compensation paid to
the judges serving on the Hood County Juvenile Board.
DANIEL T. HODGE
First Assistant Attorney General
DAVID J. SCHENCK
Deputy Attorney General for Legal Counsel
NANCY S. FULLER
Chair, Opinion Committee
Christy Drake-Adams
Assistant Attorney General, Opinion Committee