Untitled Texas Attorney General Opinion ( 1985 )

The Attorney General of Texas
tfsy 23, 1985
JIM MATTOX
Attorney General
Supreme Court Building
Ronorable Neal E. Binningham Opinion No. JM-319
P. 0. BOX 12546 Caas County District Attorney
Austin, TX. 76711- 2546 P. 0. Box 555 Re: Whether a county is required
512i475.2501 Linden, Texas 755 5:3 to contribute to the compensation
Telex 910,674-1367
of a criminsl district attorney
Telecopier 512/475-0266
Dear Mr. Birmingham:
714 .tackson, suite 700
Dallas, TX. 75202.4506 You inform us that you were appointed to fill an unexpired term
2W742-0944
of the office of criminal district attorney of Cass County because of
the resignation of the elected official. You also inform us that you
4624 Alberta Ave.. Suite 160 requested, but were refused, a salary supplement in addition to the
El Paso, TX. 79905-2793 salary you receive from the state under article 332b-4, V.T.C.S.
915/533-3484 [hereinafter the Professional Prosecutors Act], from the Cass County
commissioners court. You request the supplement to compensate you for
*- civil work which in 'thiscase you performed for Cass County but which
1 Texas, Suite 700
, vmsto”, TX. 77002-3111 is normally performed by a county attorney. In that regard you first
7131223-W ask:
Does the commissioners court have the discretion
606 BroadwaY, Suite 312
to refuse [to compensate the criminal district
Lubbock, TX. 79401-3479
606i747.5236
attorney for legal work performed as ,county
attorney]"
4309 N. Tenth. Suite B The office of C.assCounty criminal district attorney ,was created
McAllen, TX. 78601-1665
5121662.4547
by the legislature in 1955. See V.T.C.S. art. 326k-32, 41. Article
326k-32, section 3, V.T.C.S., Eidas:
MO Main Pena, suite 400 Sec. 3. It shall be the duty of the Criminal
San Antonio, TX. 76205.2797
District Attorney of Cass County, as herein
512l225-4191
provided, to be in attendance upon each tern and
all sesaitms of the District Court of Cass County
An Equal OpportUnitYI and all o:ithe sessions and terns of the inferior
Affirmative Actlon Employer courts of Caes County held for the transaction of
criminal ‘business, and to exclusively' represent
the State cf Texas in all criminal matters pending
before saj.dcourts and to represent Cass County in
all matter:3 pending before such courts and any
other court where Cass County has pending business
of any kird. nature or interest and in addition to
the specified powers given and the duties imposed
upon him by this Act, all such powers, duties and
privileges within Cass County as are now by law
p. 1459
Bonorable Neal E. Birmingham - Page 2 (JM-319)
conferred or which may hereafter be conferred upon
the district and county attorneys in the various
counties and judicfal districts of this State. He
shall collect such fees, commissions and perqui-
sites as are now or hereafter may be provided by
law for similar se:nricesrendered by district and
county attorneys of this State.
Thus, the criminal district .sttorney of Cass County is required to
perform duties which are .u,rmally performed by both a district
attorney and a county attorney. Under the provisions of article
332b-1, V.T.C.S., the commissioners court of Cass County had
permissive authority to p~.y its criminal district attorney any
compensation it deemed advisable in addition to the salary paid the
criminal district attorney by the state. See Acts 1977, 65th Leg.,
ch. 742, 01, at 1866. However, in 1983,the legislature amended
article 332b-4, section 2, V.T.C.S., the Professional Prosecutors Act,
to include the Cass County c.riminal district attorney in that act.
See Acts 1983, 68th Leg., cl).. 789, $1, at 4624, eff. June 19, 1983.
Section 3 of the Professional.Prosecutors Act provides:
Sec. 3. --Each district attorney governed by
this Act shall receive from the state compensation
equal to 90 percel;i:of the compensation that is
Provided for a drstrict judge in the General
Appropriations Act, Each commissioners court may
supplement the district attorney's state salary,
but shall in no event pay the district attorney an
amount less than thlzcompensation it provides its
highest paid distr:.ctjudge. (Emphasis added).
V.T.C.S. art. 332b-4, 93. Accordingly, we conclude that the
Professional Prosecutors Act is controlling in your situation.
In response to your fire,tquestion, we believe that the Profes-
sional Prosecutors Act authorizes the Cass County commissioners court
to refuse to compensate the criminal district attorney for legal work
performed as county attorney. Cass County does not have an office of
county attorney. The criminal district attorney is required to
perform those duties along wf.th his duties as a criminal prosecutor.
See V.T.C.S. art. 326k-32, !i3; Tex. Const., art. 5, $21; Neal v.
Sheppard, 209 S.W.2d 388, 3X (Tex. Civ. App. - Texarkana 1948, writ
ref'd).
However, article 332b-l., section 3, V.T.C.S., as quoted above,
permits the commissioners court to supplement the district attorney's
state salary. We also note that article 332b-4, section 3, V.T.C.S.,
provides that a commissionc:rs court "may" supplement the district
attorney's state salary. That term generally creates a discretionary
and not a mandatory function.. See Matter of Estate of Minnick, 653
S.W.2d 503 (Tex. Civ. App. - Amamo 1983, no writ). To construe the
p. 1460
Honorable Neal E. Birmingham - Page 3 (JM-319)
term "may" in this context as discretionary would be consistent with
section 6, which implies that the local supplementation of the
district attorney's salary is not necessary to give effect to the
purpose of the statute. V.T.C.S. art. 332b-4, 66. Thus, the Cass
County commissioners court nay refuse to supplement the salary of the
criminal district attorney, even though his duties include civil work
normally performed by a cour,tyattorney.
You next ask:
Does the commissioners court have the discretion
to set any amount,,*, a dollar a year, or must
it pay a rea1isi:j.camount consistent with the
duties performed?
As indicated above, the Professional Prosecutors Act is con-
trolling as to the compensation of the criminal district attorney in
Cass County. The only provision in the act establishing a criterion
as to the amount of salary supplement the commissioners court may
provide the criminal distrjct attorney is found in section 3, which
provides in part:
Each commissionerl;court may supplement the dis-
,-
trict attorney's sitate salary, but shall in no
event pay the district attorney an amount less
than the compensat:on it provides its highest paid
district judge. (Emphasis added).
V.T.C.S. art. 332b-4, 93. Thus, the minimum amount the commissioners
court may supplement is set by the amount it determines to supplement
the salary of its highest pr.i,d
district judge.
You inform us that Caris County has only one district judge and
that the only supplement by the commissioners court to the judge's
state salary is $100.00 pr:r month for serving as a member of the
juvenile board. This office has previously held that, in computing a
district attorney's supplementary salary, a county must include any
supplement it pays district judges for services on the juvenile board.
See Attorney General Opinion MN-87 (1979). Therefore, we conclude
that, should the Cass Count:7commissioners court decide to supplement
the criminal district attorazy's state salary under the circumstances
you describe in your requ?:;t, it must provide him not less .than
$100.00 per month.
SUMMARY
Article 332b-4, section 3, V.T.C.S., does not
require a commisc;ioners court to supplement the
- salary of a crj.minal district attorney whose
duties include lelcalwork normally performed by a
county attorney in counties having the official.
p. 1461
Eonorable Neal E. Birmingham - Page 4 (JM-319)
Article 332b-4, section 3, V.T.C.S., does require
a minimum amount by which a county commissioners
court may supplenent the state salary of a
criminal district a,ttorney.
JIM MATTOX
Attorney General of Texas
TOM GREEN
First Assistant Attorney General
DAVID R. RICBARDS
Executive Assistant Attorney General
ROBERT GRAY
Special Assistant Attorney Goneral
RICK GILPIN
Chairman, Opinion Committee
Prepared by Tony Guillory
Assistant Attorney General
APPROVED:
OPINION COMMITT.EE
Rick Gilpin, Chairman
Susan Garrison
Tony Guillory
Jim Moellinger
Jennifer Riggs
Nancy Sutton
p. 1462