Untitled Texas Attorney General Opinion ( 2000 )

OFFICE
OFTHE
ATTORNEY
GENERAL.
STATE
OFTEXAS
JOHN CORNYN
March 17. 2000
The Honorable Carole Keeton Rylander Opinion No. JC-0196
Comptroller of Public Accounts
Lyndon B. Johnson Building Re: Whether a county may discontinue its
111 East 17th Street participation in the salary supplementation program
Austin, Texas 78711 established by section 51.702 of the Government
Code, and related questions (RQ-0161-JC)
Dear Comptroller Rylander:
You request advice on the salary supplement program for statutory county court-at-law
judges established under section 51.702 of the Government Code. You ask specifically whether a
county that is participating in this program is permitted under this statute to discontinue collecting
court costs and fees in the middle ofthe program year. We conclude that the applicable statute does
not permit a commissioners court to withdraw from the salary supplementation program during the
program year. If a county were authorized to discontinue participation in the program during the
year, you ask whether the comptroller’s office must continue to pay the salary supplement required
by section 25.0015 of the Government Code to that county for the remainder of the program year.
Because we have concluded that a county may not by statute discontinue participation in the program
during the year, we need not address your second question.
Section 5 1.702 of the Government Code authorizes the commissioners court to impose a $40
tiling fee in addition to other fees in each civil case in a statutory county court and an additional
court cost of $15 on conviction of a criminal offense in a statutory county court. TEX.GOV’T CODE
ANN. 3 5 1.702(a), (b) (Vernon Supp. 2000). This provision, together with certain sections of chapter
25 of the Government Code, establishes a program for raising the salaries of county court-at-law
judges to an amount near that earned by a districtjudge. Tex. Att’y Gen. Op. Nos. JC-0159 (1999)
at 1; JC-0158 (1999) at 1; JC-0157 (1999) at 1. Participation in the program is voluntary with each
commissioners court. Ector County v. Hollmann, 901 S.W.2d 687,689 (Tex. App.-El Paso 1995,
no writ). A commissioners court that chooses to collect the court costs and fees authorized by
section 5 1.702 of the Government Code must pay its county court-at-law judges the salary required
bysection25,0005(a) or(e)oftheGovernment Code. Id.; Tex. Att’y Gen. Op. Nos. JC-0159 (1999)
at 1, JC-0158 (1999) at 1; Tex. Att’y Gen. LO-94-048, at 3. A county opts into the plan by adopting
a resolution authorizing collection of the additional fees and costs, and it remains in the plan until
it rescinds its resolution. See TEX. GOV’T CODE ANN. 5 51.702(f)-(h) (Vernon Supp. 2000). The
tiling fees collected under section 5 1.702 are sent to the Comptroller for deposit in the judicial fund
ofthe state treasury. See id. 5 21.006 (Vernon 1988) (judicial fund); id. 5 51.702(d) Vernon Supp.
2000). Each county that collects the additional fees and costs receives annually from the state “an
The Honorable Carole Keeton Rylander - Page 2 (``-0196)
amount equal to $35,000 for each statutory county court judge in the county” who does not engage
in the private practice of law and who meets other statutory qualifications. Id. 5 25.0015(a).
Your question arises because the Dallas County Commissioners Court has attempted
to withdraw from the salary supplement program effective October 1, 1999. You inform us that
Dallas County has participated in the program since July 1, 1992. Letter horn Honorable
Carole Keeton Rylander, Comptroller of Public Accounts, to Honorable John Comyn, Attorney
General (Dec. 10, 1999) (on tile with Opinion Committee). Your office has been informed that the
Dallas County Commissioners Court has passed an order directing the Dallas County Clerk
to discontinue the collection of the fees and costs under this program. Id. The order is dated
October 5,1999, but indicates that it is to be effective from October 1,1999. Id. The Dallas County
Clerk’s Office has not collected the costs and fees under the program since this date and has remitted
no funds related to this program to your office during this time. Accordingly, you inquire whether
a county may withdraw from the salary supplementation program during the program year.
Section 5 1.702 of the Government Code requires a county to participate in the program for
at least twelve months at a time and permits a participating commissioners court to discontinue
participation in the program only for a future twelve-month period. Section 5 1.702 “applies only
to fees and costs for a 12-month period beginning July 1” in a county in which the commissioners
court:
(1) adopts a resolution authorizing the fees and costs under
this section; and
(2) tiles the resolution with the comptroller not later than June
1 immediately preceding the first 12-month period during which the
fees and costs are to be collected.
TEX. GOV’T CODE. ANN. $ 51.702(f) (Vernon Supp. 2000). By adopting a resolution, the county
commits itself to collecting the fees and costs for a twelve-month period. The resolution continues
“from year to year allowing the county to collect fees and costs under the terms of this section
until the resolution is rescinded.” Id. 5 51.702(g). Thus, the county’s decision to collect the
fees operates for one or more periods of twelve months, until it rescinds the resolution. A
commissioners court that wishes to rescind the resolution must submit notice to the comptroller “not
later than June 1 preceding the beginning of the first day of the state fiscal year the commissioners
court desires to rescind the resolution.” Id. 5 5 1.702(h). See TEX. GOV’T CODE ANN. § 3 16.071(a)
(Vernon 1998) (“state fiscal year” ends on August 3 1 of each year).
A prior ruling of this office, Attorney General Letter Opinion 94-048, also read section
5 1.702 as requiring a county to participate in the program for a ml1 year. Letter Opinion 94-048
addressed the 1991 version of section 51.702, which required each county to decide annually
whether it wished to participate in the plan. Act of May 27, 1991,72d Leg., R.S., ch. 746, 5 67,
1991 Tex. Gen. Laws 2620,2637-38; see Ector County, 901 S.W.2d at 688,689; Tex. Att’y Gen.
The Honorable Carole Keeton Rylander - Page 3 (JC-0196)
Op. No. JC-0157 (1999) at 2; Tex. Att’y Gen. LO-94-048, at 2. This office read the prior version
of section 51.702 as requiring the county to participate in the program for a full year:
Under subsection (0, a county may resolve to participate in the
program section 5 1.072 establishes onlyfor a twelve-month period of
time-no more and no less-which begins on July 1 of every year.
[A county that discontinued participation in the program ] may, of
course, renew its participation for any subsequent twelve-month
period beginning July 1 by adopting the appropriate resolution. . .”
Tex. Att’ y Gen. LO-94-048, at 2 (emphasis added). Section 5 1.702 was amended in 1995 to provide
that the resolution continued from year to year until it was rescinded, but nothing in the amendment
authorized the county to participate in the program for only part of a year. Act of May 10, 1995,
74th Leg., R.S., ch. 144, $ 3, 1995 Tex. Gen. Laws 992,993 (codified at TEX. GOV’T CODE ANN.
5 51.702(g)); see Tex. Att’y Gen. Op. No. JC-0159 (1999) at 4 (county could decide at the end of
any year to rescind authorization for the additional fees).
A commissioners court may not withdraw in the middle of the program year from
participation in the salary supplementation program fimded by additional fees and costs collected
under section 5 1.702 ofthe Government Code. It may rescind its resolution authorizing participation
in the program only with respect to a future program year.
You have not raised a constitutional question about section 5 1.702 ofthe Government Code
and we have thus far addressed your question solely as a matter of statutory construction. We note
that questions have been raised about the constitutionality of the additional court costs that may be
imposed under section 5 1.702(b) on conviction of a criminal offense in a statutory county court. See
Caldwell v. Comptroller ofPublic Accounts, No. 99-13088 (261st Dist. Ct., Travis County, Tex.
Nov. 8,1999). Because we have dealt only with issues of statutory construction in addressing your
request, we must advise you that our conclusions may be modified or overturned by judicial
decisions, if any, considering the constitutionality of section 5 1.702.
The Honorable Carole Keeton Rylander - Page 4 (JC-0 196)
SUMMARY
Under section 51.702 of the Government Code, a
commissioners court that participates in the salary supplementation
program for county court-at-law judges funded by additional fees and
costs collected under that provision may not end its participation in
the middle of the program year. Section 5 1.702 contemplates that a
commissioners court may rescind its resolution authorizing
participation in the program only with respect to a future program
year.
Attorney General of Texas
ANDY TAYLOR
First Assistant Attorney General
CLARK KENT ERVIN
Deputy Attorney General - General Counsel
ELIZABETH ROBINSON
Chair, Opinion Committee
Susan L. Garrison
Assistant Attorney General - Opinion Committee