I
.JlX 3lATTOX December 10, 1990
Honorable John D. Hughes Opinion No. JM-1253
County Attorney
Hood County Courthouse Re: Whether a prosecutor may
Room 6 use drug seizure funds to pay
Granbury, Texas 76048 bonuses or increase salaries
without approval of the com-
missioners court (RQ-2078)
Dear Mr. Hughes:
You ask whether a prosecuting attorney may use drug
seizure funds to pay bonuses or increase salaries of
employees without fixst obtaining the approval of the
commissioners court. You also ask if it would constitute a
violation of the criminal law if a prosecutor were to pay
bonuses or salary increases to employees without having
obtained the approval of the commissioners court.
Article 59.06 of the Code of Criminal Procedure,
adopted by Acts 1989, 71st Leg., 1st C.S., ch. 12, § 1, at
14, and effective October 18 1989, addresses the
disposition of forfeited property. i Section (d) of article
59.06 provides:
Proceeds awarded under this ChaDter to a
law enforcement aoencv or to the attorney
1. Forfeiture provisions prior to the 71st Legislature
were contained in article, 4476-15, V.T.C.S., the Texas Con-
trolled Substances Act. See Attorney General Opinion JM-678
(1987). The Texas Controlled Substances Act was codified as
part of the Health and Safety Code (effective September 1,
1989). &g Health & Safety Code, Acts 1989, 71st Leg., ch.
678, 5 1, at 2230. This was a non-substantive codification.
However, each of the codified forfeiture provisions was
repealed, effective October 18, 1989. See Acts 1989, 71st
Leg., 1st C.S., ch. 12, § 6, at 21. New statutes dealing
with the same subject matter, which are substantially
different from the repealed Controlled Substance Act
provisions, were enacted as articles 59.02, 59.05, 59.06 and
59.08 of the Code of Criminal Procedure. Id. § 1. See
State v. Garcia, Docket No. 04-89-00194~CV, Tex. App. - San
Antonio, October 3, 1990 (unreported).
P. 6676
I
Honorable John D. Hughes - Page 2 (JM-1253)
reoresentina the state mav be soent bv the
aaencv or the attornev after a budaet for the
exnenditure of the Droceeds has been
submitted to the co issioners Court or
aovernina bodv of t: municiDality. The
budget must be detailed and clearly list and
define the categories of expenditures, but
may not list details that would endanger the
security of an investigation or prosecution.
Expenditures are subject to audit provisions
established under this article. A commis-
sioners court or governing body of a munici-
pality may not use the existence of an award
to offset or decrease total salaries, ex-
penses, and allowances that the agency or the
attorney receives from the commissioners
court or governing body at or after the time
the proceeds are awarded. The head of the
aoencv or attornev reoresentina the state may
not use the existence of an award to increase
a salarv. exnense. or allowance for an
DlOV f the attornev or aaencv who is
~~daet~~ 'bv the commissioners court or
aovernina bodv unless the commissioners court
or aovernina bodv first aonroves the exnendi-
w. (Emphasis added.)
you advise that bonuses are given for achievement to
employees and that employees are paid from budgeted county
funds.
Article 59.06(d) expressly provides that an attorney
representing the state may not use drug forfeiture funds to
increase a "salary, expense, or allowance for an employee of
the attorney or agency who is budgeted by the commissioners
court . . . unless the commissioners court . . . first
approves the expenditure." We believe that the payment of
any additional compensation to an employee in the
prosecutor's office who is budgeted by the commissioners
court is contingent upon the commissioners court's approval.
In light of your relating that bonuses are given for
achievement, there is also a constitutional prohibition
relevant to their payment. Bonuses for achievement are
compensation for services rendered. Attorney General
Opinion JW-313 (1985) concluded that a prosecuting attorney
may not pay bonuses from the "hot check" fund despite the
fact that article 53.08 of the Code of Criminal Procedure
(now article 102.007 of said code) permits the prosecuting
attorney sole discretion in using such funds to defray
salaries and expenses in his office. It was noted that
article III, section 53, of the Texas Constitution prohibits
the paying of extra compensation to a public officer, agent,
servant or contractor for services after they have been
rendered. A bonus may be paid to a county employee only if
P. 6677
Honorable John D. Hughes - Page 3 (JM-1253)
the commissioners court has approved the bonus plan as part
of compensation before the services are rendered. See
Attorney General Opinions JM-459 (1986): H-786 (1976); H-402
(1974).
You also ask if it would constitute a violation of the
criminal law if a prosecuting attorney uses drug seizure
funds to pay bonuses or salaries under the circumstances you
have related without having obtained the approval of the
commissioners court. You do not refer to a specific
provision of criminal law. The resolution of whether the
circumstances you have related constitutes a violation of
any provision of the criminal law involves the determination
of factual issues and does not come within the province of
the opinion process.
SUMMARY
The payment of any additional compensation
from the drug forfeiture funds to employees
in the prosecutor's office whose salaries are
budgeted by the commissioners court is con-
tingent upon approval of the commissioners
court. Payments for services rendered in the
form of bonuses are prohibited by article
III, section 53, of the Texas Constitution,
unless the bonus plan is approved as part of
a compensation before the services are
rendered.
l-l /Ni%%
Very truly yo r ,
A;,
JIM MATTOX
Attorney General of Texas
MARY KELLER
First Assistant Attorney General
LOU MCCREARY
Executive Assistant Attorney General
JUDGE ZOLLIE STEAKLKY
Special Assistant Attorney General
RENEA HICKS
Special Assistant Attorney General
RICK GILPIN
Chairman, opinion Committee
Prepared by Tom G. Davis
Assistant Attorney General
P. 6678