The Attorney General of Texas
July 10, 1978
JOHN L. HILL
Attorney General
Honorable Fred Toler Opinion No. H- 1286”
Executive Director
Texas Commission on Law Enforcement Re: Authority of the District
Officer Standards & Education Attorney in Travis County to
llO6 Clayton Lane, Ste. 220-E appoint investigators without the
Twin Towers Office Building approval of the Commissioners
Austin, Texas 78723 Court.
Dear Mr. Toler:
You have requested our opinion regarding the authority of the District
Attorney of Travis County to appoint investigators without the approval of
the Commissioners Court.
Prior to its last amendment, article 326k-14, V.T.C.S., read in its
entirety:
Section 1. The District Attorney for the 53rd
Judicial District shall represent the State in all
criminal cases before the Criminal District Court .of
Travis County, Texas, the S3rd Judicial District Court,
the 98th Judicial District Court, the 126th Judicial
District Court, and all other District Courts of said
County.
Sec. 2. The District Attorney shall appoint a First
Assistant District Attorney and such other assistants
and secretaries as shall be necessary to the proper
performance of his official duties. The number of
assistants and secretaries’ to be appointed and the
compensation to be paid shall be with the approval of
the Commissioners Court of Travis County, Texas.
Sec. 3. The District Attorney of the 53rd Judicial
District shall be paid a salary in an amount not to
exceed the total salary paid from State and county
funds to the Judge of the Criminal District Court or
other District Judges of Travis County nor less than
the salary paid from State funds alone to the Judge of
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Honorable Fred Toler - Page 2 (H-12 96)
the Criminal District Court or other District Judges of
Travis County, Texas. The First Assistant District Attorney
shall receive a salary not less than Seven Thousand, Five
Hundred Dollars ($7,500) nor more than Ten Thousand
Dollars ($10,000) per year and other Assistant District
Attorneys shall receive salaries not less than Five Thousand
Dollars ($5,000) nor more than Seven Thousand, Five
Hundred Dollars ($7,500) per year.
Sec. 4. The Commissioners Court of Travis County is
hereby authorized to pay the salaries.provided in Section 3
of this Act or to supplement the salaries of the District
Attorney and Assistant District Attorneys paid by the State
of Texas in such an amount that the total salaries paid shall
not exceed the maximum provided herein.
Acts 1963, 58th Leg., ch. 187, at 502 (emphasis added). Thus, under the statute as it
existed from 1963 to 1969, the Travis County District Attorney was empowered to
appoint all “assistants and secretaries as shall be necessary to the proper
performance of his official duties.” The number of these personnel was to be
regulated, and their salaries approved, by the Commissioners Court. Clearly,
however, the sole authority to appoint was conferred upon the District Attorney,
and the only limitation upon that authority was the maximum number of positions
fixed by the Commissioners Court.
In 1969, article 326k-14 was amended to its present version:
Section i. The District Attorney of the 53rd Judicial
District shall represent the State of Texas in all criminal
cases before all the District Courts of Travis County, Texas.
Sec. 2. The District Attorney of the 53rd Judicial District
shall appoint a First Assistant District Attorney and such
other Assistant District Attorneys as shall be necessary to
the proper performance of his official duties. The number
of assistants to be appointed and the compensation to be
paid shall be with the approval of the Commissioners Court
of Travis County, Texas. The First Assistant District
Attorney and other Assistant District Attorneys shall be
duly licensed to practice law in the State of Texas and shall
be authorized to perform any official act delving [sic1 upon
or authorized to be performed by the District Attorney,
under the direction of the District Attorney, and shall be
subject to removal at the will of the District Attorney.
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Honorable Fred Toler - Page 3 (H-1206)
Sec. 3. The District Attorney of the 53rd Judicial District
shall appoint as many stenographers, secretaries, investi-
gators and other office personnel to be appointed and the
compensation to be paid shall be with the approval of the
Commissioners Court of Travis County, Texas.
Sec. 4. The District Attorney of the 53rd Judicial District
shall be paid a salary in an amount equal to the total salary
paid from State and County Funds to the Judge of the 53rd
Judicial District Court of Travis County, Texas, excluding
any compensation paid to the Judge of the 53rd Judicial
District Court of Travis County, Texas, with reference to
juvenile board matters. The First Assistant District
Attorney shall be paid a salary not to exceed Fifteen
Thousand Dollars ($15,000.00) per year, and the other
Assistant District Attorneys shall be paid a salary not to
exceed Twelve Thousand-Five Hundred Dollars ($12,500.00)
per year. The Commissioners Court of Travis County, Texas
ls hereby authorized to supplement the salaries of the
District Attorney and the Assistant District Attorneys paid
by the State of Texas in such an amount that the total
salaries paid shall not exceed the maximum provided herein.
Acts 1969, 61st Leg., ch. 56, at 157.
According to the bill analysis, the only purpose of the amendment was “to
raise the salaries of the District Attorney and his assistants.” But, in addition, the
form of the statute was altered, so that the District Attorney’s authority to appoint
assistant district attorneys remained in section 2, while his authority to appoint
various “assistants and secretaries” was transferred to a completely rewritten
section 3, and “stenographers” and “secretaries” were specifically listed among the
“other office personnel” which the District Attorney was empowered to appoint.
As presently written, section 3 is not a meaningful sentence. The comparison
which begins “as many. . .‘I is not completed, while “to be appointed” appears to be
redundant. It is probable that several words were inadvertently omitted from the
statute.
We are supported in this belief by the bill analysis regarding the 1969
amendment. If the amendment had been meant to alter the method of appointing
“assistants and secretaries” in the office of the Travis County District Attorney,
either by requiring individual confirmation or by removing the Commissioners
Court’s authority to impose a limit on the number of positions, it would seem that
such a change would have been reflected in the. bill analysis. However, the only
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Honorable Fred Toler - Page 4 (H-1206)
substantive purpose of the amendment appears to have been to raise salaries. The
reorganization of the various sections of article 326k-14 appears to have been
merely a matter of form.
Although a specific statute, such as article 326k-14, is generally held to
prevail over a general statute dealing with the same subject matter, in the present
instance a particular provision of the specific statute is meaningless. In that
event, we believe it is permissible to consider the general enactment. Application
Of the relevant portion of article 3902, V.T.C.S., to the appointment power of the
Travis County District Attorney leads to the same result as does resort to the pre-
1969 version of article 326k-14. On the basis of these considerations, it is our
opinion that the Travis County District Attorney may appoint investigators without
the approval of the Commissioners Court pursuant to article 326k-14. The
Commissioners Court has authority, however, to fix the maximum number of, and
salaries for, such positions.
The Honorable Ronald Earle, District attorney of Travis County, has
explained the procedure of appointing investigators in Travis County as follows:
The procedure followed by this office in appointing investi-
gators can perhaps be better understood if such investigators
were represented as being of two different types: the first
being those investigators who are compensated by Travis
County and for whom slots have therefore ~been approved in
the budget of this office by the Travis County Commissioners
Court, and thus for which Commissioners’ Court approval is
necessary because of compensation. The second type would
include investigators who are appointed by this office but not
compensated by Travis County. Therefore, no request was
submitted to the Commissioners’ Court seeking authority to
appoint uncompensated investigators . . . All Travis County
investigators, including those not compensated by Travis
County, were appointed to investigate matters under Travis
County jurisdiction. The practice of appointing uncom-
pensated investigators without seeking Commissioners Court
approval has been done in my administration since January,
1977. It is my understanding that at least one prior district
attorney also appointed uncompensated investigators without
seeking Commissioners’ Court approval.
We believe this procedure is within the legal oontemplation of article 326k-14
and that you can rely on it in your certification. Should the Commissioners Court
take action to fix the maximum number of compensated and uncompensated
investigators for the District Attorney% Office and should this create a conflict of
opinion between the District Attorney and the Commissioners Court a different
question would be presented.
p. 4841
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Honorable Fred Toler - page 5 (H-1206)
,
SUMMARY
The Travis County District Attorney may appoint
investigators pursuant to the authority of article 326k-14,
V.T.C.S., without the approval of the Commissioners Court,
but the Commissioners Court has authority to fix the
maximum number of such positions.
Very truly yours,
Attorney General of Texas
APPROVED:
Opinion Committee
p. 4842