Untitled Texas Attorney General Opinion ( 1987 )

THE ATTORNEY GENERAI.
OF TEXxU3
July 6. 1987
JIM Mxl-cox
XlToRs’EY OESERAL
Ronorable Gary W. Rholes Opinion No. M-738
Shelby County Attorney
104 Church Street Re: Authority of a county attorney to
Center, Texas 75935 hire an investigator without approval
of the commissioners court, where pay-
ment will be made solely from funds
collected pursuant to article 53.08 of
the Code of Criminal Procedure
Dear Mr. Rholes:
You ask about the authority of a county attorney to hire an
investigator without approval of the commissioners court when payment
of the investigator’s salary will be made solely from funds collected
pursuant to article 53.08 of the Code of Criminal Procedure.
Pou note that funds collected under article 53.08 are to be
expended “at the sole discretion ~of the attorney” and that section
41.102 of the Government Code provides that a prosecutor “may
employ . . . investigators . . . and other office personnel that in
his judgment are required for the proper and efficient operation and
administration of the office.” Your concern is prompted by section
41.106(a) of the Government Code which allows the prosecuting attorney
to fix the salaries of investigators and other office personnel
“subject to the approval of the commissioners court.”
Attorney General Opinion MW-439 (1982) addressed the question of
expenditures by a criminal district attorney from the fund established
by article 53.08. It states:
Article 53.08 of the Code of Criminal Procedure
authorizes a county attorney, district attorney,
or criminal district attorney to collect a fee if
his office processes a hot check under certain
circumstances. It further provides that:
(e) Fees collected under this article
shall be deposited in the county
treasury in a special fund to be
administered by the county attorney,
district attorney, or criminal district
r? attorney. Expenditures from this fund
shall be at the sole discretion of the
p. 3436
Ronorable Gary W. Rholes - Page 2 (JR-7381
attorney, and may be used only to defray
the salaries and expenses of the
prosecutor’s office. . . . (Emphasis
added).
This statute creates a special fund which is in
the county treasury, but which is segregated from
other county funds and earmarked for a specific
purpose. More Importantly. the statute states
that the fund is to be administered by county
attorneys, district attorneys, and criminal
district attorneys, and that, within the limits
set out therein, expenditures from the fund are to
be made at their sole discretion. The express
enumeration of particular persons or things in a
statute is tantamount to an express exclusion of
all others. Ex parte McIver, 586 S.W.2d 851 (Tex.
Grim. App. 1979). Thus, by virtue of the express
language of the statute, the hot check fund is
explicitly placed beyond the reach of the
commissioners court.
By its terms, article 2368a applies only where
a county acts ‘through its Commissioners Court.’
It follows, in our opinion, that the statute is
not triggered unless, in making a specific
purchase, a county acts through its commissioners
court. Article 1659a does not contain this
precise language, but it does state that contracts
for the purchase of supplies and materials are to
be avarded to the party who ‘in the judgment of
the Commissioners Court’ submits the lowest and
best bid. This is sufficient to convince us that,
like article 2368a, article 1659a does not come
into play where a commissioners court is not
involved with the purchase in question.
We have noted that article 53.08 gives the
exclusive right to administer the hot check fund,
and to make purchases from it, to county
attorneys, district attorneys, and criminal
district attorneys. Because commissioners courts
are without any right to administer the fund or to
be involved in making expenditures from it, we
conclude, for the reasons set forth above. that
articles 2368a and 1659a are inapplicable in this
purchasing context. In this respect, it should be
noted that to conclude that these statutes are
applicable is to give commissioners courts an
indirect means of controlling the fund, a result
contrary to the express terms of article 53.08
p. 3437
Eoaorable Gary W. Rholes - Page 3 (m-738)
and. therefore, to the legislature's intent. A
conmissioners court could, for example, refuse to
accept any or all bids in a particular instance
and thus interfere with the exclusive right of the
designated individuals to administer the fund and
to determine when, for what purposes, and under
what circumstances expenditures will be made from
it.
Attorney General Opinion JM-313 (1985) expressly states that the
prosecuting attorney way make expenditures from the hot check fund to
hire staff without the prior authorization of the commissioners court.
Since article 53.08 gives the exclusive right to county attorneys,
district attorneys and criminal district attorneys in administering
the fund to defray the salaries and expenses of the prosecutor's
office, it is our opiaion that you may hire an investigator and set
his salary without approval of the commissioners court where payment
of the salary is made from such fund.
SUMMARY
Approval of the commissioners court is not
required for a county attorney to hire an
investigator and set his salary where the
expenditure for same is derived solely from funds
collected under article 53.08 of the Code of
Criminal Procedure.
JIM MATTOX
Attorney General of Texas
MARYKELLER
Executive Assistant Attorney General
JUDGEZOLLIE STUKLEY
Special Assistant Attorney General
RICK GILPIN
Chairman, Opinion Committee
Prepared by Tom G. Davis
Assistant Attorney General
p. 3438