33rd/424th District Attorney Sonny McAfee will refer to the State Auditor’s Office a complaint regarding the judicial stipend paid to Burnet County Judge James Oakley after receiving an opinion from Texas Attorney General Ken Paxton this week.
“The Legislature authorized the State Auditor, upon legislative directive, to audit or investigate any entity receiving funds from the State,” Opinion No. KP-330 states. “The State Auditor may therefore investigate an allegation that an affidavit submitted by a county judge incorrectly claims that forty percent of his or her functions are judicial.”
“I will follow the guidance of the Attorney General’s office and be referring the case to the State Auditor’s office,” McAfee said Wednesday, Aug. 26.
Oakley said the opinion issued Tuesday, Aug. 25, by Paxton “was exactly what I anticipated and reinforces the generally accepted spirit of the governing code.”
“It is my understanding that the District Attorney’s request for that opinion was the result of constant and endless pestering from an individual making the complaint,” Oakley said. “Because of the vague language associated with the current legal code, the District Attorney sought clarification such to provide a definitive answer to the complainant. That individual is a known political foe who is, yet again, lobbing unfounded antagonistic attacks.
“As further clarified by the Attorney General, I am confident that the governing code is being adhered to and the public is being served in a very efficient manner.”
After receiving a complaint from a private citizen, McAfee had asked Paxton in February for guidance in answering two questions regarding the extra $25,200 salary supplement paid to Oakley each year for hearing uncontested probate, guardianship, receivership and muniment of title cases in addition to being the constitutional county court judge for Burnet County:
• What is the appropriate method to calculate whether 40 percent of the functions performed are judicial functions?
• 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?
Texas Government Code 26.006(a) allows for county judges to receive a supplement equal to 18 percent ofthe annual salary of a district judge “if at least 40 percent of the functions that the judge performs are judicial functions.” To receive the salary supplement, the county judge must file an affidavit affirming he has met that standard.
“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,” McAfee wrote Paxton, noting that neither the legislative code nor a previous AG opinion which addressed qualifying “judicial functions” did not address how the percentage of those functions should be calculated.
“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?” McAfee asked.
When McAfee calculated the period of time Oakley would have spent performing his judicial duties in each year from 2015-2019, the percentage of time ranged from 12.16 to 15.34 percent of a standard 2,080-hour work year. However, Oakley insists that if the number of functions he performs, and not the amount of time he spends, is what determines the qualification.
“According to the judge, 50 percent of his functions are judicial as there are only judicial and administrative functions,” McAfee wrote.
In his opinion, Paxton wrote “the Legislature did not specify a method for how to calculate the percentage of judicial functions performed by the county judge.”
“A construction limiting eligibility of the salary supplement to only those county judges spending forty percent of their time on judicial functions would require reading a time element into the statute beyond what the Legislature adopted,” Paxton wrote. “In construing statutes courts will refrain from ‘reading words or elements into a statute that do not appear on its face.’ Likewise, limiting the salary supplement to only those county judges whose list of functions include at least forty percent judicial functions imposes a numerical requirement not found within the language of section 26.006.
“Therefore, we cannot conclude as a matter of law that the salary supplement is available only to those judges who spend at least forty percent of their time on judicial functions, nor can we conclude that it is only available when the number of judicial functions performed as a percentage of the total number of functions performed is equal to or greater than forty percent,” Paxton wrote.
The Comptroller’s Office is responsible for payment of state supplemental pay for judges.
McAfee said he has been told the Comptroller’s 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.’”