Untitled Texas Attorney General Opinion

December 16,1999
The Honorable Edwin E. Powell, Jr. Opinion No. JC-0157
Coryell County Attorney
P.O. Box 796 Re: When a county “initially” begins collecting
113 South Seventh Street fees and costs pursuant to section 5 1.702 of the
Gatesville, Texas 76528 Government Code for purposes of the statutory
county court judges salary formula of section
25.0005(e) (RQ-0093-JC)
Dear Mr. Powell:
Section 25.0005, subsection (a), ofthe Government Code sets out a formula for determining
the minimum salaries of statutory county court judges in counties that opt to collect fees and costs
from civil litigants and convicted criminal defendants pursuant to section 5 1.702 of the Government
Code. See TEX.GOV’TCODEANN. 5 25.0005(a) (v emon Supp. 2000). Generally, the formula ties
the salaries of statutory county court judges, which are set by commissioners courts, to the salaries
of district judges, which are set by the legislature. Id.
A county is not required to use the salary formula set out in subsection (a) if the county
commissioners court raises the judge’s salary within a certain period of time after the county
“initially begins collecting fees and costs under section 51.702,” and complies with other
requirements set out in subsection (e):
(e) A county is not required to meet the salary requirements of
Subsection (a) for a particular court if:
(1) not later than September 1 of the year in which the county
initially begins collecting fees and costs under Section 5 1.702, the
county increases the salary of each statutory county court judge in the
county to an amount that is at least $28,000 more than the salary the
judge was entitled to on May 1 of the year the county initially begins
collecting fees and costs under Section 51.702;
(2) the county pays at least the salary required by Subdivision
(1);
The Honorable Edwin E. Powell, Jr. - Page 2 (X-0157)
(3) the county collects the fees and costs as provided by
Section 5 1.702;
(4) the court has at least the jurisdiction provided by Section
25.0003; and
(5) except as provided by Subsection (t), the county uses at
least 50 percent of the amount the county receives each state fiscal
year under Section 25.0016 for salaries for the statutory county court
judges.
Id. 5 25.0005(e). Under section 5 1.702, the commissioners court of a county that wishes to collect
the fees and costs must adopt a resolution authorizing the fees and costs. Id. 5 5 1.702(f) (Vernon
1998). If the resolution is filed with the State Comptroller by June 1, the county may begin
collecting the fees and costs for a twelve-month period beginning July 1. Id. In order to comply
with subsection(e) of section 25.0005, the county must give its statutory county court judges a raise
by September 1 ofthe year it initially begins collecting fees and costs. See id. 5 25.0005(e) (Vernon
supp. 2000).
You ask us to determine when a court “initially” begins to collect fees and costs for purposes
of subsection (e) of section 25.0005 of the Government Code. We conclude that a court initially
begins to collect fees the very first year that a court begins collecting fees and costs pursuant to
section 5 1.702 of the Government Code.
Your letter suggests that the phrase “initially begins collecting fees and costs under Section
5 1.702” might refer to “the option to collect fees that a county must exercise each year after 1995.”
Letter from Honorable Edwin E. Powell, Jr., Coryell County Attorney, to Honorable John Comyn,
Texas Attorney General (July 28,1999) (on file with Opinion Committee). We note as a preliminary
matter that we do not read section 5 1.702 as requiring a county to approve collection of the fees each
year after 1995. An earlier version of section 51.702 authorized the collection of fees and costs if
the county commissioners court “adopte[d] a resolution authorizing the fees and costs under this
section for the 12-month period.” Act of May 27, 1991,72d Leg., R.S., ch. 746, 5 67, 1991 Tex.
Gen. Laws 2620,2637-38. This provisionrequired a commissioners court that desired to participate
in the salary financing scheme to adopt annually a resolution authorizing collection of the fees and
costs. See Ector County v. Hollmann, 901 S.W.2d 687,689-91 (Tex. App.-El Paso 1995, no writ);
Tex. Att’y Gen. LO-94-048, at 2. However, in 1995, the legislature amended section 51.702 to
provide that a resolution approving the fees and costs “continues from year to year allowing the
county to collect fees and costs under the terms of this section until the resolution is rescinded.”
TEX.GOV’TCODEANN. 8 5 1.702(g) (V emon 1998); Act ofMay 10, 1995,74th Leg., R.S., ch. 144,
$3, 1995 Tex. Gen. Laws 992,993. Thus, since 1995, a county that wishes to continue collection
of the fees and costs need not approve collection each year.
The Honorable Edwin E. Powell, Jr. - Page 3 (X-0157)
In our view, the term “initially” for purposes of section 25.0005(e) of the Government Code
means the first year that a court begins collecting fees and costs under section 5 1.702. Undefined
words and phrases in a statute must be read in context and construed according to the rules of
grammar and common usage. See TEX. GOV’T CODEANN. 5 311.011 (Vernon 1998). “Initially”
ordinarily means “at the beginning, at the outset, at first.” VII OXFORDENGLISHDICTIONARY976
(2d ed. 1989). Thus, if an action is performed a number oftimes, the time it is “initially” performed
is the first time, Accordingly, a county complies with section 25.0005(e) of the Government Code
if, in addition to other requirements, the county increased the salaries of statutory county court
judges by at least $28,000 in the year that the county first began collecting fees and costs under
section 5 1.702, even if the court reapproved collection in subsequent years.
If “initially” were read to mean each year that a county approved collection of the fees and
costs after the first year, then in order to use the salary formula of subsection(e) a county would have
to give its statutory county court judges a $28,000 raise each year. With such annual increases,
the salaries of county court judges would quickly surpass those of district court judges who,
for example, earned $92,217 from the state in 1999. See General Appropriations Act, Act of
May 29, 1997,75th Leg., R.S., ch. 1452, art. IV, 1997 Tex. Gen. Laws 5535,6016. Such a result
not only seems contrary to common sense, but also would be inconsistent with the purpose of
subsection (e), which is to provide a salary formula that allows counties to pay judges less than the
amount required by subsection (a). Subsection (a) ties county court judges’ salaries closely to
district judges’ salaries. See TEX. GOV’TCODEANN.§ 25.0005(a) (Vernon Supp. 2000) (providing
that county must pay statutory county court judges a salary that is no less than $1,000 less than
salary paid to district judges).
We note that the most recent amendment to subsection (e) makes no exception to the salary
increase requirements for counties that have already begun to collect fees and costs pursuant to
section 5 1.702 of the Government Code. Id. 5 25.0005(e). In other words, if a county initially began
collecting fees and costs before the effective date of the 1999 amendment, it can comply with
subsection(e) only if, at that initial time, it had increased judges’ salaries by at least $28,000. It may
be the case that there are no counties in Texas that increased judges salaries by $28,000 when they
initially began collecting fees and costs pursuant to section 5 1.702, since prior to the most recent
amendment subsection (e) required initial increases of only $20,000 or $24,000. See Letter thorn
Honorable David L. Hodges, Judge, McLemnm County Court at Law, to Elizabeth Robinson, Chair,
Opinion Committee, Office of the Attorney General, at 2-3 (Aug. 3 1, 1999) (on tile with Opinion
Committee). The result may be that no counties that initially began collecting fees before the
effective date of the most recent amendment are able to use the salary formula of subsection (e), but
instead must use the formula of subsection (a).
While we may take into account the consequences of a particular construction of a law, see
TEX. GOV’T CODE ANN. 5 311.023(5) (V emon 1998), we do not find this result absurd,
unreasonable, meaningless or otherwise of a character that would call for a departure from the plain
language of the statute. Nor do we find any evidence in the statute’s legislative history that this
result is contrary to the intent ofthe legislature. Accordingly, we conclude that a county that did not
The Honorable Edwin E. Powell, Jr. - Page 4 (JC-0157)
increase the salaries of its statutory county court judges by at least $28,000 at the time the county
initially began collecting fees and costs pursuant to section 51.702 of the Government Code is
ineligible to use the salary formula set out in section 25.0005, subsection (e), of the Government
Code.
SUMMARY
A county that wishes to use the salary formula for statutory
county court judges set out in section 25,0005(e) of the Government
Code must, not later than September 1 ofthe year in which the county
initially begins collecting fees and costs under section 51.702,
increase the salary of each statutory county court judge in the county
to an amount that is at least $28,000 more than the salary the judge
was entitled to on May 1 of that year. The term “initially” for
purposes of section 25.0005(e) means the very first year that a court
begins collecting fees and costs upon approval ofthe collection by the
county commissioners court pursuant to section 51.702 of the
Government Code, even if the court reapproves collection in
subsequent years.
Yo sve truly
‘rJv+-@$
---Tc
JOHN CORNYN
Attorney General of Texas
ANDY TAYLOR
First Assistant Attorney General
CLARK RENT ERVIN
Deputy Attorney General - General Counsel
ELIZABETH ROBINSON
Chair, Opinion Committee
Barbara Griffin
Assistant Attorney General - Opinion Committee