Untitled Texas Attorney General Opinion

The Honorable Harold Hollingsworth Opinion No. H- 473
Criminal District Attorney
Kaufman %ounty Re: Eligi.bi1it.y of Criminal
Kaufman, Texas ,’ 75142 DistrictAttorney ,to be a
member of ‘State Retirement
System.
Dear Mr. Hdllingsworth: .: .~
You,have requested an opinion as to whether the Criminal
District Attorney of Kaufman County is erigible to participate in,
&he Employees Retirement System of Texas established by,article
6228a, V. Ti C. S. which’provides in section 3 (B) (1):
The memtiership of said Retirement System
shall be composed of any elective Stkte official or
appointee in an elertive office of the state; including
all elected or appoi.ntrd members of State Legisla-
ture, and District Attorneys receiving salaries paid
‘by the State from the State General Revenues Fund,
but shall not include any elective official’in the
Judicial, Education, District, or County, of the
Statue of Texas other than those expressed eligibk
as provi.ded herein.
Thu.s, to be el,igible for the Retirement program the Criminal .District
Attorney must be a “District Attorney” and be receiving a salary paid
by theState from the General Revenue Fund. ~”
The Supreme Court of Texas in Hill Countv v. Sheppard, 17’8
S. W. 2d 261 (Tex. Sup. 1944) defined the= “criminal district
attorney”:
p. 2157
.
The Honorable Harold Hollingsworth page 2 (H-473)
. * . it is,our opinion that the term criminal
district attorney refers to a class or kind of
district attorneys, and that a criminal di,strict
attorney is a district attorney within the meaning
of the Constitution.
The’ office of District Attorney, including that
of c.riminal district attorricy, is a constitutional
office, ,the duties and compensation of which are
provided for in Article V, Se,ction 21, of the
Constitution . .’ . . 178 S. W. 2d at 263.
See also:
-- N@aI v. Sheppard, 209 S. W. 2d 388 (Texy Civ. App. --T;exarkana
.1948, writ ref.),; and 20 TEX. JUR. 2d District Attorney $1 (1960 ed).
Under the,provisions of articl,e 326k-71, which created, ,the office
of ,the Criminal Dis,t.rict Attorney of Kaufman County, ..the Criminal District
Attorney’s salary is paid out of both .state and county funds. Section 4, of
.:articli 326k-71 provi.des:
The Crimi’nal District Attorney of Kaufman Count9
shall be commissioned by the governor, and shall,
receive as compensation arr annual salary payable in
,equal, monthly installment,s... ,The salary shall include
the amount, equ,al, to ,the, amount paid dii trict attorneys
by the State of Texas,,.and shall. be paid by the comptroller
of public accounts, as,appro,p.riated by the legi.slature.
In .addition, the Cri.minal DistrLct Attorney of Kaufman
County shaI1 be.paid.in e~ial bimonthly installments out
of the oHicers’ salary fund of Kaufman County an amount ”
which, when added to the amount paid by the State 0
Texas, equals an amount not less than 90 p,ercent of .the
total .sa,i,a:ries paid to the Judg,e of th,,e 86,th Judickal Di,st’rict
‘by the State .of .Tesas and Kaumnm, ‘VanZandt, ‘and
Rockwall ccunties~
In Attorney .General Opj,ni,on M-10,87 (197.2) this ~pffice held that:,a
-,+Zr?minal :Z&stcict ``t.or````~,,.pa%.il.
e,nWe,l~y from s++,te ~fund.s .was eligible
to ~particl.pate in the state retirement program auiho~rized by,article
p. 21.58
I
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2
The Honorable Harold Hollingsworth page 3 (H-473)
6228a. Similarly it is our opinion that the Criminal District Attorney
of Kaufman County is eligible to participate in the Employees Retirement
System of Texas established by article 6228a to the extent of the amount
of his salary paid by the state. This conclusion is in accordance with
the general program outlined in article 6228g providing for a County
and District ,Retirement System. See
- section 11(A) (1) of article 6228g,
entitled “optional coverage of employees receiving supplemental compensa-
tion from participating counties” and providing that
The governing body of any participating ccunty
which ,Rays compensation from county funds to a
person reg,ularly engaged in the performance of
the duties of an elective or appointive State or
district office in addition to ,that.received from
the State of Texas, may by order of the governing
body p,rovide that the persons shall ba considered
em,ployees of the county, and as such eligible for
membership in the~system to the extent of .the
compensation paid the person by the county.
SUMMARY
The Criminal Di.strict Attorney of Kaufman
~County is eligible to participate in the Employees
- Retirement System’establjsbad by article 6228a,
V. T. C. S., to the extent ot the amount of his salary
paid by the state.
C. ROBERT HEATH, Chairman
Opinion Committee
ps 2159