Probate Judge Kimberly Sullivan
In a per curiam opinion, the Texas Supreme Court on Friday held that county commissioners, not the statutory probate court judge, have authority to grant a salary supplement to the judge for serving as local administrative statutory probate court judge. The decision reverses both a Galveston County district court and the Houston [14th] Court of Appeals.
The dispute arose when, in its 2014-15 county budget, the Galveston County Commissioners Court stopped funding an additional $5,000 salary supplement for Probate Judge Kimberly Sullivan after having done it for the previous three years. Judge Sullivan is the only probate judge in Galveston County, so she doubles as the local administrative probate judge (not sure exactly what she “administers” in that role). She sued the county commissioners challenging their authority and decision to stop funding the supplement. The commissioners resumed funding for two additional years but stopped it again in the 2018-19 budget. Ultimately, after getting a ruling from the 14th Court of Appeals that Judge Sullivan had adequately pleaded a claim that that the commissioners abused their discretion, Judge Sullivan obtained a final judgment from the trial court that the commissioners had acted ultra vires and ordered them to pay the supplement. The court also awarded her $63,000 in attorney’s fees and costs (a lot more than the salary supplement was worth).
SCOTX reversed based on the constitutional grant of authority to commissioners court to govern county business and approve and adopt county budgets. As part of that authority, the Government Code requires the commissioners to set the total annual salary of each judge of a statutory probate court. At the time Judge Sullivan filed suit, the commissioners were obliged to pay her at least the annual salary received by a state district judge in the county. Judge Sullivan’s argument rested on language in the Government Code that requires a county to use its “contribution fund” (that is, the fund containing the filing fees for statutory probate courts) for probate court-related expenses, including compensation. She alleged that by failing to use the contribution fund for a court-related expense (her salary supplement), the commissioners had acted ultra vires.
Unfortunately for Judge Sullivan, the Court held that although the contribution fund must be used for the support of statutory probate courts, the law does not require the county to make or approve any expenditures out of the fund to begin with. The contribution fund is merely part of the county treasury available for use for court-related expenses as determined by the county budget adopted by the commissioners. No statutory authority exists for a statutory probate court judge to control those funds or pay himself or herself with them.
