Untitled Texas Attorney General Opinion

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