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Some state judges are at odds with the Texas Legislature’s top budget-writers over pay raises for attorneys at state appellate courts. At issue is whether the courts’ legal staffs are eligible for the 4 percent across-the-board raise that lawmakers approved for state employees. Sen. Rodney Ellis and Rep. Rob Junell, chairmen of the legislative budget panels, said in an Aug. 7 letter to the State Comptroller’s Office that it wasn’t their intent that the appellate court attorneys and law clerks be eligible for the 4 percent salary increase provided to other state employees. The Legislature boosted funding for the judiciary by 12.3 percent in the current biennium, with about $4.2 million of the increase expected to go for salary increases for appellate court lawyers. Junell says employees getting raises greater than the across-the-board increase are not supposed to receive the 4 percent raise. “I was there,” Junell says. “I know what our intent was.” John Cayce, chief justice of Fort Worth’s 2nd Court of Appeals, says the state appropriations act, which became effective on Sept. 1, does not expressly exclude the appellate courts’ lawyers from the cost-of-living increase approved for state employees. Since they aren’t excluded, they should be eligible for the raise, says Cayce, who is seeking an opinion from Attorney General John Cornyn to settle the matter. “It’s just an unfortunate misunderstanding that needs to be resolved,” Cayce says. Michael Schneider, chief justice of the 1st Court of Appeals in Houston, says the opinion is being requested on behalf of all the appellate courts. “My impression was the 4 percent [increase] applied to every employee that wasn’t expressly excluded by the appropriations act. Obviously, someone doesn’t agree with me,” Schneider says. The state Supreme Court also had the impression that its staff attorneys would receive the across-the-board raise, says Osler McCarthy, the court’s staff attorney for communications. “The [Ellis/Junell] letter was a surprise, to say the least,” McCarthy says. McCarthy says the Legislature provided block grants that the courts will decide how to use. The comptroller’s office is following the lead of the budget committee chairmen with regard to the raises. Vicki Smith, the comptroller’s payroll policy coordinator, notified Cayce in an Aug. 28 letter that the agency would adhere to the legislative intent expressed in the Ellis/Junell letter. But Smith indicated in her letter that the comptroller’s office would allocate funds for the 4 percent raise if the attorney general supports Cayce’s position in a legal opinion. Jerry Benedict, administrative director of the State Office of Court Administration, joined the courts in requesting the opinion in a Sept. 7 letter to Cornyn. Tom Kelley, spokesman for the Office of the Attorney General, says he doesn’t expect an opinion to be issued “any time soon.” State law gives the OAG’s opinions committee 180 days from the date a request is made to develop a final opinion and get Cornyn to sign off on it, Kelley says. The opinion will affect paychecks for about 200 staff attorneys at the 14 intermediate appellate courts, Texas Supreme Court and Court of Criminal Appeals. It also will affect the pay of a small number of law clerks employed by those courts for two-year terms. Phil Hardberger, chief justice of the 4th Court of Appeals in San Antonio, says the staff attorneys were expecting to receive the cost-of-living raise. “They don’t get paid enough anyway, so I think they ought to get it,” Hardberger says. Lawmakers capped the salary for appellate courts’ legal staffs at $71,001 for a chief staff attorney and $60,142 for other attorneys. Cayce says he believes the caps apply to the salary increases decided by the courts and that the 4 percent raise for state employees is in addition to those amounts. In his letter, Cayce questions whether appellate court attorneys are among the public officials excluded from the 4 percent raise. He also asks whether the comptroller’s office can determine the legislative purpose of an appropriations act based on post-enactment statements of individual legislators that aren’t supported by the statute’s legislative history or recorded proceedings of the legislative committees responsible for proposing appropriations. Junell, of counsel to Jackson Walker in San Angelo, says tape recordings of the House/Senate budget conference committee’s sessions were reviewed to determine the legislative intent regarding the raise. The conference committee hammered out differences in the budget plans passed by each chamber.

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