Untitled Texas Attorney General Opinion

HonorableC. H. Cavnem
stat.5
     Auditor
Austin,Texas

Dear Sir:                                opinionNo. O-6676

                                         Re: State Apportionments to counties
                                             operatingunder officers'Salary
                                             Fund and where there is a Criminal
                                             DistrictAttorneyor $ountyAttor-
                                             ney performingthe dutiiee of Dis-
                                             trict Attorney.

         We are in receiptof your requestfor an opinionon the abbve mat-
ter, said requestbeing a6 follows:

        "In connectionwith an audit we are now making of the Ju-
    diciarySectionof the State Comptroller'sDepartmentfor the
    three years ended.
                     August 31, 1944, we find it necessaryto re-
    quest an opinionfrom your Departmenta8 to the followingappor-
    tionmentappropriations:

         "Apportionmentsto countieswhere county officersare paid
    salariesand where there is a CriminalDistrictAttorneyor
    CountyAttorneyperformingthe duties of DistrictAttorney (for
    33 countiesin 1940, per Sub-sectionB, Section13, Chapter465,
    Acts Forty-fourthLegislature).

            "Year Ended August 31st:

                     "1942             $146,42y.O0
                      1943              146,429.00
                      1944              146,429.00

            "Article3912e, Section13B, reads as follows:

         "The compensationof a criminaldistrictattorneyor county
    attorneyperformingthe duties of dietrictattorney,together
    with the compensationof his assistants,shallbe paid out of
    the County Officers'SalaryFund, but the State shall pay into
    such fund each year .!+n
                           amount equal to a sum which bears the
    same proportionto the total salaryof such criminaldistrict
    attorneyor countyattorneyperformingthe duties of a district
    attorney,togetherwith the salary of his assistants,as all
Hoti.C. H. Caress, page f (0-6676)



    felay fees sollect.rdby such officialduringthe year 1935 bear
    to the total fees cc;i.lected
                              by such officialduring such year.'

         "We qucte, I.:part, from AttorneyGeneral'sOpinionaddressed
    tcjthe CrLaptroile.r        Accouds under date of September15,
                       cf Pub1j.c
    1936, relativeto t,'ie:
                          ix1usl.o~cd stenographers,bookkeepersand
    invest!.gators
                 as 'assistants':

         "*Recel.ptis her+y ackzodedged op your letterof Sept&,er
    15, 1936 whereinyou referto subsection(b) of Section13 of
    Sena+:eBill NG. 5, Acts of thz SecondCall& Sessionof the Forty-
    fourthLegislatureand wish to be advisedas to whetheror not
    StenO@apheI'S, bookkeepers,and investigators  shouldbe consid-
    ered as assistads unaer the terms Gf this Section.. . . . . .
    While stenographers, bookkeepers,and investigators  are assistants
    In a limlt~d sense 0,"the word In that they assist in the conduct
    of the duties of ihe office,we are of the opinionthat the Leg-
    islaturedid not intendto includesuch employees$n the terms of
    Section13 (b), supra. It is the opinionafthe writer that the
    Legislatureinteridea to includeonly assistant+listrict  or county
    attorneysas that word is commonlyaccepted,that is, practicing
    attorneyswho in some way assist in the prosecutionof cases~in
    tte respectivecol;z%ies.*

        "We quote IL part, from your opinlda@-essed to the Camp-
    trollerucaer date cf V&r& 9, 1936:

        "'Whenwill the Comptrollerbe requiredto pay into the
    CountyOfficers'SalaryFunathe moneys providedfor under Sub-
    sectionB of Section131

         "'We are of the opinionthat the Comp%zoll.er's
                                                     Department         .
    shouldpay into the Officers'SalaryFu& of the respective
    countiesthe amount providedfor in Section13 (b) at the first
    .ofeach year, that is, on JanuaryFirst.' ~

         "we quote, in part, from your opinionNO. o-6226, addressed
    to the Comptroller:

         "'You statethat the maximumamountthat could be paid the
    CriminalDistrictAttorneyand his aasietantsby statuteis
    $'j2,150.00per annum,but the actualexpenditures
                                                  by Bexar County
    to the CriminalDistrictAttorneyana his assistantsis $45,500.00
    forthisyear...........................
         11
          I. . . . . . it is our opinionthat in making your allnca-
    tion of the appropriationas providedby said,~statute, you should
    make your calculationsof the distribut$ons on ~theamount actually
    paid by the countyto the,CriminalDistrict. Attorneyana his~ae-
    sistantsand not on the maximumamount!&at the,law~  au$horizes.'
.   .




        Hon. C. H. Cavness,page 3 (o-6676)



                 "In auditingthe recordsof the Comptroller'sDepartment
            pertainingto this salaryapportionmentfor the three-yearperl-
            od ended August jlet, 1944, we find the followingaltuation:

                 "1. At the beginningof each calendaryear the Comptroller
            preparesa scheduleof ealaryapportionmentfor each and all par-
            ticipatingcounties. The lralariesused by the Comptrollerin
            this scheduleare those furnishedby each countyby letter from
            such countypurportingto be the salarieswhich will be paid for
            the ensuingcalendaryear to CriminalDistrictAttorneysand
            their assistants.

                 "Thie, of course,means that the Comptrolleris using what
            might be consideredestimatedsalariesand which in most cases
            representmaximum salariesratherthan the actual salariespaid
            as outlinedin AttorneyGeneral'sOpinionNo. o-6226. Obviously,
            the Comptrollercould not know what salarieshad been paid until
            the end of the calendaryear based upon each county'spayroll.

                 “2.  During this three-yearperiod some countiesreported
            in their lettersto the Comptrollerfor inclusionof salaryap-
            portionmentcalculations,salariesfor abetractors,investigators,
            clerks and stenographers, all of which salarieswere used by the
            Comptrollerin computingsalaryapportionment   to the respective
            counties.

                 "3. Some countiesincludedthe names of 'Assistants'  who
            were not shown in the Texas Legal Directoryand/orthe records
            of the SupremeCourt of Texas as being licensedand practicing
            attorneys,which fact was discoveredby us in checkingthe names
            submittedto the Comptrollerback to the Legal Directories,etc.
            In one instancewe found that a county includedthe name of an
            attorneywho had not paid his Bar Associationdues since 1939.

                 "4. In checkingthe names and salariesshown each year as
            reportedby the respectivecountiesto the Comptrollerfor in-
            clusionin salariesapportionment  to the State Auditor'sForms
            NO. 383 and 383a, which forms report the fees receivedand the
            annual salarypaid the County Officersand employees,we found
            that in many instancesthe salarylisted in such lettersto the
            Comptrollerby the respectivecountiesexceededthe actual sala-
            ries paid such County'sofficersand employeesas reflectedin
            ~0rm.sNO. 383 ana 383a,

                 "We also found that numerouscountieshad not furnished
            Forms No. 383 and 383a to the State Auditor each year as re-
            quiredby Statute,so in order to obtainthe necessarydata
            for audit purposes,we wrote each countywhich has partici-
            pated in State SalaryApportionmentrequestingthat they fur-
            nish us with a list of all salariespaid attorneyeeligible
Hon. C. H. Cavneae,page 4 (O-6676)



    for participati.on
                     in th4.6apportl.onmentfor the calendaryears
    ended Decemberlat, 194.1,1942, 1943 and l&4.

         “In checkingthe repliesto these confirmationletternto
    thoae aubmitted.
                   by the countiesto the Comptroller,we found
    the 6am.esituation,
                      to e:xi.st
                              - t.helettersured by the Comptrol-
    ler reflectedealerfeawhi.c’h
                               were In,excess of the amountaac-
    tually paid.

         "5. In checkingthe salariessubmitted. by the respective
    countiesto the governingStatutes, it appeareto UB that aome
    countfeehave includedealarieafor poal,ttona which are not eli-
    gible for participatl,on.
                          in.the apporti,onmentand in some inetancea
    the salariessubmf.tted
                         were in excess of the amountafretforth in
    the Statutee.

         “In order to arrive at a definiteprocedureto be followed
    by the Comptrollerin compu.ting State SalaryApporti,onmentin
    the future and aleo to enableus to completeour audit for the
    three-yearperiod ended August jlet;,I$&, we are attaching
    herewitha echedulepreparedby ue frox ,thelettersreceived
    from the respectivecountieewhhl.ch wan the basis for salary
    apportionment a8 used by the Comptrollerfor the three-year
    period under audit. This scheduleshcws the names, positions
    and aalariee,by countfes,by years for t,hethree years ended
    August 31at, 1942, 1943 and 194,&.

         “It will be eeen that,J.nthl,ssched~.:.e
                                               we have footnoted
    (by letter referencee)cowerin.@;certal,n
                                           ‘LcllLq~ties
                                                    whf,cb.
                                                          haave
    includedsalariesw:hichwe do not believeare el!.gi.ble under
    the existingStatutese

         “T:hisscheduleprovtdesadd!.tl,oeal.
                                         columns‘Cobe filled
    in by you a8 fol.lows:

         “1. On t.hismdm3ul.eplease insertthe Law references
    for each poaitio:nin each cou&y and advi,se
                                              whether'aqyof
    such laws are unconstitut1,onal
                                  as tc partZ.c%.pation
                                                    in State
    SalaryApportionment D

        "2. We ‘alsoask th& you pl.ea~efi1.J:fnthe remai;nio.g
    three columnsin this schedu.ieto chow the maxi.mum
                                                     salary
    allowedby law for each of the positionsfor each courty
    eligiblefor parti.cipati.on
                              in t,h,Li
                                      eslaryapportLonmect.

         "3s The salaryapportionment   appropriati,ons
                                                     for t,he
                                                  (33) coun-
    three years under review refer to t’hirhy-three
    tiea, whereasthe attachedschedulecoveraonly thirty-one
    (31) countiesreceivingsuch apportbonment  as computedby
    the Comptroller. Shou.ld two more counti.ea
                                              partl,cipatein
.   .




        Hon. C. H. Cavness,page 5 (o-6676)



            this apportionment? If so, please furnishthe names of the coun-
            ties, the applicablelaws and the respectivesalariesto be in-
            cluded for such countlee.

                 "4. What ie the effect of the SpecialFederalCensus in
            JeffersonCounty on that county'8apportionment- that Special
            Census increasedthe populationfrom 145,329in 1940 to 191,942
            as of June 15th, 1943, the date of said SpecialFederalCensue.

                 “5. Based upon your OpinionNo. o-6226 which is to the
            effectthat calculationsof the distributionsshouldbe computed
            on the amount actuallypaid by the countyto the CriminalDis-
            trict Attorneyand his Assistantsratherthan on the maximum
            amountthe law authorizes,it appearsto us that the Comptroller
            would have to wait until the end of each calendaryear before he
            could calculatesalaryapportionmentdue the respectivecounties.
            Are we correctin assumingthat this is the method which should
            be used, the salarydata perhapsfurnishedthe Comptrollerat the
            end of each year through certifiedreportsfurnishedby the County
            Auditorsof the respectivecounties?

                 “6. Since we found that some countieshave been over-paid
            salaryapportionment(which of coursemeans that other counties
            have been under-paid)over the period of the three years under
            audit, can such errorsbe adjustedfrom any salaryapportionment
            appropriationbalanceand/or from future salaryapportionment
            appropriations, and for what period of time? Would such adjust-
            ments be retroactiveto Januarylst, 1936, the effectivedate of
            the State SalaryApportionmentlaws?"

                  We will considerthe apportionmentsto the named officialsof the
        variouscountiesin the order submittedby you and cite the statutesthat au-
        thorizedsame, a8 well as to call attentionto any errorsthat may have been
        made in making said apportionments.If desired,you can then place such mat-
        ters into the schedulesubmittedwith your request,which is returnedherewith.

                  It will be necessaryfor us to refer to the various subdivisions
        of the statutesgoverningthese mattersbut, insteadof referringto each of
        the subdivisions, we will give the articleand number thereoffollowedby a
        period and the number of the subdivision.All salarieswill be considered
        on an annualbasis withoutbeing so specified.

                  It may also be necessaryfor us to refer to and attach copies of
        other opinionsof this department,and when that is done said opinions,and
        each of them, will be adoptedas a part of this opinioninsofaras they pass
        upon questionshere discussed.

                  Bexar County. The Bexar County CriminalDistrictCourt was created
        and establishedby Articie 52-161 of the Code of CriminalProcedureof the
        State of Texas, and Section12 of said articleprovidesfor the electionof
                                                                           .      .




 Hon. C. H. Cavness,page.6 (o-6676)



 a criminaldistrictattorneyof said county. Article3912e-1of Vernon'eAn-
 notatedCivil Statutesfixes the salaryof said criminaldietrict.attorney
 at the sum of $7,400.00.

           We are unable to state just what positloneln,theoffice of Criminal
 DistrictAttorneyof Bexar Countywere filledby any particularpersons,as
 set forth on the schedulesubmitted,as home of the ealariespaid euch person6
 are lese than those authorizedby law. In our opinion,Article3912e.,  Section
 lg(f-l),fully authorlzedall of the salariesshown in the echedule,  eince
 Bexar County had a populationof 338,776 under tha Federal Censurof 1940 and
 such statuteapplied  to the districtattorneyor the criminaldistrictattor-
 ney, in any countyhaving a populationof not less than 325,000nor more than
 500,000accordingto the laet precedingFederalCensus.

            Your scheduleshows twelve assistantcriminaldistrictattorneys
 for each of the three years. In 1942 the followingsalarieswere paid: one
 assistantat $4,500.00,three at $4,200.00,two at $3,600.00,two's& $3,000.00,
 and four at $2,700.00. In 1943 the followingsalarieswere paid eaid assistants:
 two at $4,500.00,one at $4,200.00,three at $3,600.00, three at $3,000.00,
 and three at $2,700.00, And, in 1944 the followingsalarieswere paid said
 assistants: two at $4,500.00,    one at $4,200.00,three at $3~,600.00,three at
 $3,000.00,   and three at $2,7OO,OO. The statuteabove referredto authorizes
 the criminaldistrictattorneyto appointnine assistantsand to fix their
 salariesat a rate not to exceedthe followingamounts: two at $4,500.00per
 .annumeach, two at $4;200.00per annum each, one at $3,600.00per annum, one
 at $3,OOO.Q0per annum, and three &$2,7OO.O0 per annum ea.ch. In addition.
 to those, the criminaldistrictattorneywas author.ized.to    appoint,with the
 advice and consentof the'Commissioners'    Court, the followingadditionalas-
 sistantsand pay them the.salariesstated,to-wit,one at * salarynot to ex-
 ceed $4,250.00   per annum; one not to exceed$3,600.00 per annum; one not to
 exceed $3,000.00per annum; and two not to exceed $2,7OO.OOper annum;and
 one not to exceed$2,,400.00   per annum.

            House Bill No. 849, Ch. 271, pb 428, Vernon% Texas SessionLaw Serv-
  ice, passed by the last Legislatureand which became effectiveninety (90) days
  after June 5, 1945, date of adjournment,applies,tocountieshavinga popula-
  tion of 225,000or more*andless than 500,OOO~according  to the last preceding
  Federal Census,and fixes the Galariesof criminaldistrictattorneysin md.~
  countiesat $6,500.00up to January1, 1946, and at $7,400.00after that date.
  Our OpinionNo. o-6728, a copy of which we hand you herewith,holds House BFll
. Noa 849 to be'in irreconci+able conflictwith SenateBill No. 246 insofaras
  said bills apply to Bexar County. Therefore,SenateBilI,No.246 will control
  the salaryof the criminaldistrictattorneyin Bexar County.

           SenateBill No. 246, Ch. 312, p. 510, of said Law Service,applies
 to countiesin this State having a populationof not less than 300,000nor
 more than 500,000accordingto the last precedingFederalCenBus. This law
 became ef?ectiveon June 2, 1945, and governsthe salaryof the criminaldis-
 trict attorneyfn Bexsr County after that date. This law authorizeshis salary
 to be $7,700.00per annum, and it also authorizesan increaseof 15% on the
.   .




        Hoq. C. H. Cavnem, page 7 (O-6676)



        salariesof the assistants,such increaseto be based on the salariesof March
        15, 1945. Said law also repeal6Article3912e-1,Vernon'eAnnotatedCivil
        Statutea,which in the law hereinbeforeaet out a8 fixingthe salary of the
        criminaldistrictattorneyfor the years referredto by you.

                  As to those two referredto on your schedulefor 1944, one at a salary
        of $3,000.00,the other at $2,700.00,whether or not the apportionment made
        on their salarieswa8 legal,would dependentirelyupon whetheror not they
        actuallyservedas such assistants.~If they did not eerve,then they should
        not have been includedin the apportionment,a8 the holdingmade In our Opinion
        No. 0-6226 that the calculationshouldbe based on the amount actuallypaid
        is evidentlycorrect.

                  Article 3912e, Section13, of said statutesprovidesthat in counties
        having a populationof 20,000 or more and lees than 190,000,the Commissioners'
        Court is authorizedto fix the salariesof the county officialsthereinnamed,
        includingthe countyattorney,criminaldistrictattorneyand countyattorney
        who performsdutiesa8 districtattorney,which ehouldbe not less than the
        total sum earneda8 compensation  by them in their officialcapacityfor the
        year 1935 and not more than the maximumamountallowedto such officialsunder
        laws existingon August 24, 1935. It wa8 providedfurtherthat in counties
        fallingwithin a certainlimit as to populationaccordingto the last preceding
        FederalCensus such countiescould have such amountsIncreasedin the event
        the assessedvaluationswere in excess of the amountsthereinset forth accord-
        ing to the la& approvedprecedingtax roll. Article3912e, Section15, of
        said statutes,containsprovieionsrelativeto the salariesthat such officials
        in countieshaving a populationof less than 20,000 accordingto the last pre-
        cedingFederalCensus could be paid, but none of the countiesherein referred
        to come within aaid articleand section. Therefore,it will not be further
        referredto, Our Opinion6Iios,O-2748 and 0-2546-Acontaina full discussion
        of the rules and methods governingthe-fixingof such salariesunder the above
        referredto provisions,and copiesof same are enclosedherewithfor your in-
        formatfon.

                  An exceptionto the rule set out in Article 3912e, Section13, that
        salariesshall not be less than the total sum earnedfor the year 1935 and not
        more than the maximumallowedunder laws existingon August 24, 1935, is con-
        tained In Article 3912e-7,which became effectiveJuly 5, 1941. This law ap-
        plibd, however,only to Hldalgoand McLennanCountiesduringall of 1942, 1943
        and 1944 and to JeffersonCountyup to June 15, 1943, and 6ame will be further
        consideredIn connectionwith each of said counties.

                 These rules do not apply, however,to countieswhoee populationis
        in exce68 of 190,000a8 such countiescome within the provisionsof Article
        3912e, Section19.

                  Brazes County. This countyhad a populationof 21,835 in 1930=
        Under Arficles3883.1 and 3891, the countyattorneyof this county could have
        been paid a salary of $3,000.00. Under Article 3902.1,the first assistant
        countyattorneycould have been paid not to exceed$+,~oo.ooand other asaiat-
        ants nqt to exceed$1,500.0?.
                                                                                .       .




         Hon. C. H. Cavness,page 8 (o-6676)



                  Collln Coupty. Thie countyhad a populationof 46,180 in 1930.
        Under Article83883.3 and 3891, the countyattorneycould have been paid a
        salaryof $4,250.00.,The populationof this county for 1940 waB 47,190 and
        the assessedvaluationefor 1941, 1942, and 1943 were $21;730,930.00,
        $22,350,260.00,and $Z!2,352,325.00,respectively,therefore,under Articles
        3912e, Section13, the countyattorneycould have been paid an additional2$
        for 1942,,m additions13% for 1943 and m additional3$'for 1944, such per- ,
        centageabaaed upon the salaryof $4,250.00. Under Article 3902.3,the first
        asaietantcounty&torney could have been paid a ralaryof $2,100.00,and other
        assistantsnot to exceed$1,800.00.

                   Cooke County. The populationof this countywas 24,136 in 1936.
        Under Articles3883.1 and 3891, the countyattorneycould have been paid a
        salary of $3,000.00. The populationl+ 1940 ME 24,909...Theaeeeeaed valua-
        tione for 1941, 1942, and 1943 were $18,896,250,00~ $i0,089,410.00, and
        $ly,487,,8oo.o0. Therefore,under Article 3912e, Section13, the couqty,at-
        torney could have been paid an additional4$, 6$ and 5% of said salaryfor
        the years 1942, 1943,'and1944, reepectively.                   .:

-                  Dallae County. !?he,Dallas,CountyCriminalDietrictCourt was created
         and establishedby Article 52-l -- 52-24 of the Code of CriminalProcedure
         of the State of Texas, and Section52-24 thereofprovldeefor a criminaldis-
         trict attorney; The 1940 populationof Dallas CountywaB 398,564, therefore,
         the salaryof the criminaldistrict.attorney  of Dallas County is governedby
         Article 3912e-2(b),which authoriZee.the fun qf $7,400.00in all countiesin
         1945, or on September3, 1945.
Hon. c. H. Cavness,page 18 (o-6676)



Therefore,House Bill No. 849 repealsHouse Bill No. 241 Insofaras they are
in conflict,the conflictbeing that Houee Bill No. 241 provideafor a salary
of $7,400.00for the districtattorneywhile Houre Bill Ao. 849 provideBthat
said salary shall be only $6,500.00to January1, 1946, and $7,400.00there-
after. Therefore,in connectionwith the salaryof the criminaldintrlctat-
torney of TarrantCounty,it will be $6,500.00 per &MWE to April 10, 1945;
$7,400.00per mum from April 10, 1945 to September3, 1945j $6,500.00per
annum from September3, 1945, to Jaauary1, 19461 and thersaiter$7,400.00
per agum.

         While "DistrictAttorney"in named ln House Bill No. 241 and "Die-
trict Attorney"and "CriminalDistrictAttorney"in Houre Bill No. 849, it ia
clear that both of eald bills were intended'toapply to "CriminalDistrict
Attorney",since all countiesl withinthe populationbounde named have such
official.

          Van Zandt County. The 1930 populationof this countywas 32,315.
Under Articles3883.2and 3891, the countyattorneycould have been paid aa
much a8 $3,500.00. The 1940 populationwa8 31,155 and under Article3912e,
Section13, he could have been paid an additionalcum of 10% of said salary
for each of said years, elnce the aaseeaedvaluationsfor the years 1941, 1942
and 1943 were $24,067,ggg.O0,$24,064,984.00, and $24,296,412.00,respectively.
Under Article3902.2 the first assistantcountyattorneycould have been paid
not to exceed$2,000.00.

          WilliamsonCounty. This countywas at no time authorizedto have
a crFmina1districtattorneyand what has heretoforebeen eaid as to the in-
validityof law6 providingfor a criminaldistrictattorneyin a countyof this
size is aleo applicablehere. The 1930 populationof this countywas 44,146.
Under Articles3883-3and 3891, the countyattorneycould have been paid a6
much a8 $4,250.00. The 1940 population~88 41,698 and under Article3912e,
Section13, the countyattorneycould have been paid an additional2s for 1942,
& for 1943, and 3% for 1944, since the assessedvaluation6for the respective
precedingyears were $21,206,110.00, $21,799,940.00, and $22,195,150.00.Under
Article 3902.3 the first assistantcould have been paid not to exceed$2,100.00
per annum, and other assistantsnot to exceed$I.,~oo.oo.

         A countyattorneyis requiredto be a duly licensedattorneyat law,
and an assistantcountyattorneymust have the 6am.equalifications
                                                              as the county
attorney. (Articles331 and 332, V. A. C. S.)

         The State Bar Act (Art. 320a-l),which became effectivefn 1939,
providesin part a8 follows:

         "Sec. 2. There Is hereby createdthe State Bar, which is
    hereby constitutedan administrative agency of the JudicialDe-
    partmentof the State,with power to contractwith relationto
    ite own affairaand which may sue and be sued and have such oth-
    er powers a8 are reasonablynecessaryto carry out the purposes
    of this Act.
 ,




Hon. C. H, Cavness,page 19 (o-6676)



          "Sec. 3. All personawho are now or who shall hereafterbe
     licensedto practicelaw In thin State shall constituteand be
     members of the State Bar, and ahallbe subjectto the proviaiona
     hereof and the rule6 adoptedby the SupremeCourt of Texas; and
     all personsnot membersof the State Bar are herebyprohibited
     from practicinglaw in thir State,

          "Withinthe meaning of this Section,all perronsfurnishing
     evidenceof or complyingwith any of the followingprovisions
     &all be deemedae now liceneedto practicelaw within this State,
     viz:

          "(a) That he ie now enrolleda8 an attorney-at-law  before
     the SupremeCourt of this State.
          "(b) A licenseor the issuanceof a licenseby the Board
     of Legal Examinersof thfs State authorizinghim to practicelaw
     within this State.
          "(c) A licenseor the 'leauance of a licenseto practicelaw
     within this State by any authority,which, at the time of the ie-
     nuancethereof,was authorizedby the laws of thie State,then in
     effect,to issue the license."

          Section4 of said State Bar Act authorfzeethe SupremeCourt to pre-
pare and proposerules and regulationsfor disciplining,suspendingand dls-
barring attorneysat law, which said rules and regulationswere to be submit-
ted to the members of the State Bar and a majorityvote was requiredto adopt
any or all of said rules and regulations. Said Act also authorizedthe Supreme
Court to prescribea fee not exceedingFour Dollare ($4.00)per ennum per per-
son to be paid to the Clerk of the SupremeCourt.

          The rules governingthe State Bar, which were approvedin accordance
with the above statutes,providethat the membershipfee prescrrbedby the
SupremeCourt shall be due and payableby each member to the Clerk of the Su-
preme Court on June 1st of each fiscalyear, the fiscal year beginningJune
let and endingMay jlst of the next succeedingyear; that a member in default
of paymentof said fee for sixty days after it was due Shall be regardeda6
delinquentand shallbe given writtennotice thereofby the Clerk of the Su-
preme Court. Then, If the delinquentmember fails to pay such fee within thirty
days after said notice,he shall cease to be a member. Provisionis also made
that if at the end of ninety days after June let a member has not paid to the
Clerk membershipdue for the currentyear the Clerk may strike from the rolle
of the State Bar the name of the delinquentmember.

          You state that Bornepersonshave been used a8 assistantcounty at-
torneyswhose names do not appear in the Texas Legal Directory,or the record
of the SupremeCourt, as being licensedand practicingattorneys. We do not
think that the failureto find the names of said assistantsin the Legal Di-
rectorywould be sufficientevidenceto show that they were not authorized
to hold such officialpositions. As to the names of such aselstantrrnot be-
ing found in the recordsof the SupremeCourt, we think it would be necessary
                                                                           .    .   I




Hon. C. H. Cavness,page 20 (o-6676)



to ehow that the hereinabovereferredto rules had been followedand the name8
of euch aesiatantedroppedfrom the membershiprolls in accordance therewith
before it could be raid that aaid aaristentnshouldnot be conrideredin con-
nectionwith the apportionmenthere under consideration.

          If the abstracters,tax deputiesand clerks referredto by you were
liceneedattorneys,they shouldbe carriedaa aaaistantsbut, if they were
merely what such name6 imply,then they shouldnot be consideredin connection
with making said apportionments.

          As to the use of the namee of stenographers,
                                                     bookkeeper6and investi-
gatorsa8 "assistants"in arrivingat said apportionment,  we agree with the
opinionof this departmentreferredto by you, addrearedto the Comptroller
under date of September15, 1936,and It is our opinionthat such ruling should
be appliedto any of such employeeswhose name8 appear in the schedulesubmlt-
ted by you.

          Article 3912e, Section13(b),which providesfor the apportionment
here under consideration, does not fix any time for the paymentof euch appor-
tionmentinto the County Officer-6' Salary Fund of each county,but we suggest
that, since the Comptrollermust necessarilydeal with two separateapproprla-
tions in each calendaryear, he handle same 88 followe:

          Make the apportionments at the end of each four months'period and
after proper statementshave been made qhewingthe actual aum61paid out, the
apportionments to be made after December31et of any year to be for the pre-
cedingfour months and to adjust any discrepanclee  or errore in the allocation
of the apportionments duringthe year ending on that date. The other times
for the allocationof such apportionments  can be after April 30th and August
31st of each year, and to be made only after receiptof proper statementsa8
to the 8ume actuallypaid out by each of said counties.

          We find two other countiesthat were eligibleto share in these ap-
portionmentsfor the years 1942, 1943 and 1944, a8 well a8 futureapportion-
ments, viz: MontagueCounty and Parker County. The 1940 populationsof these
countieswere 20,442 and 20,482,respectively,  and each of them had and has
a countyattorneywho performsand Is performingthe duties of districtattorney.

          As to the effect of the SpecialFederalCensus in JeffersonCounty
on that county'sapportionment,  we refer you to our OpinionNo. O-6499,a copy
of which Is herewithenclosed. The apportionmentof this countywill now be
made on the basis of ita having a populationin exce88 of 190,000.

          We are unable to find any statuteauthorizingthe Comptrollerto
make adjustmentsof these apportionments  where there have been overpayments
or under-paymentsIn past years. It is our opinionthat where any county or
countieshave been underpaidin allocationsprior to the calendaryear 1945,
such error or error8 cannotbe adjustedout of a currentor future apportlon-
ment, aa all such appropriationa must be used for the year for which they are
appropriated,and it will be necessaryfor the Legislatureto make a specific
. * .




        Hon. C. H. Cavness,page 21 (o-6676)



        appropriationfor such purpose. Where any countyhas receivedmore in past
        apportionments than It wan entitledto, it la our opinionthat the State would
        have a claim again& such county or countieefor the mm or mm 80 received.

                 Your attentionir directedto the followinglaw pannedby the laet
        Legirlaturewhich will likely affectthe amount of theae apportionmentsin
        the future:

                  SenateBill No. 123, Chap. 179, p. 244,Vernon'sTexas SeasionsLaw
        Service,which became effectiveMay 9, 1945, and which amends Articles3891,
        3902, 3912e, Section13 and 3912e, Section15, authorizesthe Commissioners'
        Court, under the conditionsaud an therein eet forth,to increasethe salaries
        of the officialsand deputiesthereinnamed a8 much a8 25s. This would include
        some of the officialsand aesirtantshere being considered.

                                                        Yours very truly,

        APPROVEDOcT.31,1945 ,                      ATT-GEZERALOFTEXAS

        /a/ Carlo@ C. Ashley
                                                   By /s/~Jas.W. Baasett
        FIRST ASSISTAIQ                                  Jan. W. Baesett
        A!ITORNEYGEUERAL                                       Aqeist+nt
                   /
        JwB:LJ:LY ;
        encls.                                                                   .



                                                 APPRO&
                                                 OPINION
                                                COMMITCEB
                                                BY /a/ BWB
                                                  CHAIRMAN