ATTORNEY GENERAL OF TEXAS
GREG ABBOTT
September 3,2003
The Honorable John F. Healey, Jr. Opinion No. GA-0096
Fort Bend County District Attorney
301 Jackson Street Re: Whether an assistant prosecutor’s prior
Richmond, Texas 77469 service as an elected district attorney, criminal
district attorney, or county attorney who
performed the duties of a district attorney
qualifies as lifetime service credit for longevity
pay purposes (RQ-0035GA)
Dear Mr. Healey:
You ask whether, for longevity pay purposes, an assistant prosecutor is entitled to lifetime
service credit for prior service as an elected district attorney, criminal district attorney, or county
attorney who perfomred the duties of a district attorney.’
Chapter 41, subchapter D of the Government Code authorizes longevity pay for assistant
prosecutors. It defines an assistant prosecutor as “an assistant district attorney, an assistant criminal
district attorney, or an assistant county attorney to a county attorney compensated by the state to
perform the duties of a district attorney.” TEX. GOV’T CODE ANN. 9 41.25 l(1) (Vernon Supp. 2003).
An assistant prosecutor who “has accrued at least four years of lifetime service credit” is entitled to
longevity pay. Id. § 41.252(a)(3).* Th e amount of the pay is “$20 per month for each year of
lifetime service credit,” not to exceed $5,000 annually. Id. 5 41 .253(a)3, (c)(2).
Longevity pay under chapter 41 is clearly intended to encourage experienced felony
prosecutors to remain in public service. See HOUSE COMM. ON JUDICIAL AFFAIRS,BILLANALYSIS,
Tex. H.B. 178,77th Leg., R.S. (2001) (noting that the salaries counties pay experienced prosecutors
have failed to keep pace with salaries in the private sector). As you observe, a district attorney,
criminal district attorney, or county attorney who left office to become an assistant prosecutor may
‘Letter from John F. Healey, Jr., Fort Bend County District Attorney, to Office of the Attorney General, at 1
(Mar. 24,2003) ( on f11e with Opinion Committee) [hereinafter Request Letter].
2Act of May 30,2003,78th Leg., R.S., H.B. 1940,s 1 (to be codified as an amendment to TEX. GOV’T CODE
ANN. 0 41.252(a)).
3k?. 9 2 (to be codified as an amendment to TEX. GOV’T CODE ANN. 0 41.253(a)).
The Honorable John F. Healey, Jr. - Page 2 (GA-0096)
bring valuable prosecutorial experience to the new job.4 You state that the public policy reflected
in chapter 41 would best be served if an assistant prosecutor’s prior service as an elected prosecutor
may be counted as lifetime service credit, and chapter 41 should be construed accordingly?
However, section 41.257(a) provides the sole means for an assistant prosecutor to accrue lifetime
service credit: “An assistant prosecutor accrues lifetime service credit for the period in which the
assistant prosecutor serves as a full-time, part-time, or temporary assistant prosecutor.” TEX. GOV’T
CODE ANN. 9 41.257(a) (Vernon Supp. 2003).
A court may consider a statute’s purposes even when the statute is unambiguous. Id.
5 311.023(1), (9, (5) w emon 1998) (Code Construction Act); In re Canales, 52 S.W.3d 698,702
(Tex. 2001). But a court may not rewrite a plainly worded, unambiguous statute on the ground that
the statute is insufficient to effectuate sound public policy. Tijerina v. City of Tyler, 846 S.W.2d
825,827 (Tex. 1992). The legislature is the sole judge of a statute’s adequacy to achieve its intended
purpose. Exparte Hughes, 129 S.W.2d 270,276 (Tex. 1939).
Under section 41.257(a), lifetime credit accrues only for service as an assistant prosecutor.
The legislature did not include elected prosecutors when it defined an assistant prosecutor as “an
assistant district attorney, an assistant criminal district attorney, or an assistant county attorney.”
TEX. GOV’T CODE ANN. 5 41.25 l(1) (Vernon Supp. 2003). We are bound to accept the legislature’s
definition. See id. 8 3 11.011 (b) (V emon 1998) (Code Construction Act); Texas Dep ‘t of Transp. v.
Needham, 82 S.W.3d 3 14,3 18 (Tex. 2002). Had the legislature intended lifetime service credit to
accrue for other kinds of prior service, it surely would have said so. See Hilco Elec. Co-op. v.
Midlothian Butane Gas Co., 46 Tex. Sup. Ct. J. 909,2002 WL 32126133 (July 3,2003) (applying
the rule of ejusdem generis: “when words of a general nature are used in connection with the
designation of particular objects or classes of persons or things, the meaning of the general words
will be restricted to the particular designation.“). Consequently, lifetime service credit for service
as an assistant prosecutor does not include prior service as an elected district attorney, criminal
district attorney, or county attorney. See TEX. GOV’T CODEANN. 5 41.257(a) (Vernon Supp. 2003).
4Request Letter, supra note 1, at 2.
‘See id.
The Honorable John F. Healey, Jr. - Page 3 (GA-0096)
SUMMARY -.
An assistant prosecutor’s prior service as an elected district
attorney, criminal district attorney, or county attorney who performed
the duties of a district attorney does not qualify as lifetime service
credit for longevity pay purposes.
Very truly yours,
Attorney General of Texas
BARRY R. MCBEE
First Assistant Attorney General
DON R. WILLETT
Deputy Attorney General for Legal Counsel
NANCY S. FULLER
Chair, Opinion Committee
William A. Hill
Assistant Attorney General, Opinion Committee