Office of the Attorney General, 022820 TXAGO, AGO RQ-336-KP

• Case Date: February 28, 2020
• Court: Texas

Office of the Attorney General AGO RQ-336-KP No. RQ-0336-KP Texas Attorney General Opinion February 28, 2020          Office of the Attorney General          P.O. Box 12548          Austin, Texas 78711-2548          Dear General Paxton:          Pursuant to 402.043 of the Texas Government Code, I request a written opinion on the following questions:          Questions presented:          1) When determining whether a county judge is entitled to the salary supplement provided in Texas Government Code Section 26.006(a), what is the appropriate method to calculate whether 40 percent of the functions performed are judicial functions? Is this calculation based on the time the judge spends in performing judicial functions as a percentage of the total time spent on his or her official duties, or on the number of judicial functions performed as a percentage of all official functions performed?

a. If entitlement to the salary supplement depends on the time spent on judicial functions as a percentage of the total time a county judge spends on all functions, what is the appropriate method of calculating time spent on all functions against which to measure time spent on judicial functions? Do "all functions" include time spent fulfilling duties for the benefit of the community outside of traditional business hours? Do "all functions" include a standard work year of 2,080 hours?

b. If entitlement to the salary supplement depends on the number of judicial functions performed as a percentage of the total number of functions performed, what is the appropriate method of calculating the total number of functions performed by a county judge, against which to measure their judicial functions?

         2) What remedies are available to county or district attorneys, or other representatives of county or state government, if a county judge claims entitlement to the supplemental pay by submitting an affidavit falsely or erroneously claiming that 40 percent of his or her functions are judicial?          Background:          Texas Government Code, Section 26.006(a) provides in relevant part, "A county judge is entitled to an annual salary supplement from the state in an amount equal to 18 percent of the annual compensation provided for a district judge in the General Appropriations Act if at least 40 percent of the functions that the judge performs are judicial functions." The statute further provides in subparagraph (b), "To receive a supplement under Subsection (a), a county judge must file with the comptroller's judiciary section an affidavit stating that at least 40 percent of the functions that the judge performs are judicial functions."          A group of citizens filed a complaint with the 33^rd/424th[1] Judicial District Attorney's Office concerning Burnet County Judge James Oakley receiving a state salary supplement provided in the Texas Government Code. The complaint alleged that, as a non-lawyer that did not handle contested matters, it was not possible for Judge Oakley to have spent 40 percent of his time as county judge on "judicial functions" and therefore, he was not entitled to the salary supplement. A review of opinions rendered by the Office of the Attorney General in reference to this issue included Attorney General Opinion KP-0090 which addressed activities qualifying as "judicial functions." However, that request for opinion, and the responsive opinion did not address how the percentage of "judicial functions" should be calculated. Detailed factual information, including examples of time estimated in judicial functions, has been included in this request in order to obtain an opinion and guidance on the calculation of the percentage of judicial functions as well as remedies if the 40 percent threshold contained in Tex. Gov. Code §26.006(a) is not met.          Judge Oakley took office as the Constitutional County Court Judge2 on January 1,2015, and currently holds that position. He hears only uncontested probate matters and refers contested probate matters to the statutory county court at law judge.          The annual compensation for a district judge during the years 2015-2019 was $140,000.3 Therefore, the annual salary supplement for a county court judge who affirms by affidavit that 40 percent of his functions as a county judge are "Judicial Functions" is $25,200.00. Affidavits have been filed by Judge Oakley each year beginning in 2015 to support his request for the $25,200 supplemental pay from the Comptroller's Office. There is no remedy provided in Tex. Gov. Code §26.006 when a judge files an affidavit claiming that 40 percent of his functions are judicial functions when the affidavit is not accurate.          Inquiry of the Comptroller's Office          Attorney General Opinion KP-0090 provides, "To the extent that a county auditor has concerns regarding an improperly requested salary supplement under Government Code 26.006(a), the auditor should confer with the Comptroller of the Public Accounts regarding disbursing the supplement." The Chief Investigator for the District Attorney contacted the Comptroller's Office to determine how the supplement for county court judges was verified in terms of whether the 40 percent judicial functions threshold had been met. Specifically, the District Attorney' s Office requested whether the 40 percent determination was tracked by actual work hours or time spent on the bench or in hearings. Additionally, the District Attorney's Office investigator inquired as to whether any specific entity was tasked with tracking the time spent by county judges requesting the supplement.          The Comptroller's Office responded that that office did not question the affidavits submitted by county court judges. If a judge submitted an affidavit, the Comptroller's Office issued the supplemental pay. The Comptroller's Office expressed that control over payment of the supplement was "county business" and not "state business."          The Legislative Budget Board's April 2019 report, "Improve Oversight of the Texas County Judge Salary Supplement" on page one related the following:

Although the State Auditor's Office has authority to audit county judge salary supplements, supplements are unlikely to be audited due to the low amount of individual payments. No audits have been performed. Moreover, neither

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