THE ATTORSEX- GESERAL
OF TEXAS
December 19, 1990
Honorable Bob Bullock Opinion No. JM-1264
Comptroller of Public
Accounts Re: Whether the county attorney
L.B.J. State Office Bldg. of Fayette County is entitled to
Austin, Texas 78774 be compensated as a district at-
torney (RQ-2084)
Dear Mr. Bullock:
you ask whether the county attorney of Fayette County
is entitled to be compensated as a district attorney.
Section 24.254 of the Government Code provides that the
155th Judicial District is composed of Austin, Fayette, and
wailer Counties. Section 43.160 of the Government Code
states the t@voters of Austin and Waller Counties elect a
district attorney for the 155th Judicial District who
represents the state in that district court only in those
counties."
Section 45.175 of the Government Code provides that in
"Fayette County the county attorney shall perform the duties
imposed on and have the powers conferred on district
attorneys by general law."
you direct our attention to section 46.001 of the
Government Code that provides county attorneys performing
the duties of district attorney are wprosecutors'* under the
Professional Prosecutors Act. See Gov't Code ch. 46. Sec-
tion 46.003(a) provides that each wprosecutor is entitled to
receive from the state compensation equal to 90 percent of
the compensation that is provided for a district judge in
the General Appropriations Act." Acts 1989, 71st Leg., ch.
1254, 5 2, at 5057 (effective September 1, 1989,
amended). However, section 46.002 delineates prosecutozz
subject to this chapter, which is applicable only to prose-
cutors in counties named in this section. Section 46.002(3)
lists those county attorneys performing the duties of
district attorney in designated counties as coming within
the provisions of this chapter. The county attorney of
Fayette County is not listed in subsection (3).
p. 6755
Honorable Bob Bullock Page 2 (JM-1264)
Sections 46.001 and 46.002 were both enacted at the
same session of the legislature as part of Senate Bill 1228,
Acts 1985, 69th Leg., ch. 480, 5 1, at 1969 (effective
September 1, 1985). Section 311.026(b) of the Government
Code provides that if the conflict between a general
provision and a special provision is irreconcilable, the
special provision prevails unless the general provision is
the later enactment and the manifest intent is that the
general provision prevails. In the instant case, subsection
(3) of section 46.002 listing county attorneys performing
the duties of district attorneys in designated counties as
coming within the act is the special provision.
The legislative intent that the provisions of this act
apply only to county attorneys of counties listed in sub-
section (3) of section 46.002 is further evidenced by House
Bill 600, Acts 1989, 71st Leg., ch. 811, 5 1, at 3676,
amending subsection (3) of section 46.002 by adding county
attorneys performing the duties of district attorneys in
three additional counties. Neither the original nor the
amended version of 46.002 lists Fayette County. Further-
more, even though section 45.175 states that the county
attorney of Fayette County has "the powers conferred on
district attorneys by general law,l' chapter 46 is the
exclusive provision governing the pay of county attorneys
who perform the duties of district attorneys. We conclude
that the district attorney of Fayette County does not come
within the definition of llprosecutorO@ in section 46.001 so
as to be entitled to compensation under section 46.003.
The county attorney, of Fayette County is
not entitled to be compensated as a prose-
cutor under section 46.003 of the Government
Code.
JIM MATTOX
Attorney General of Texas
MARYKRLLRR
First Assistant Attorney General
p. 6756
Honorable Bob Bullock Page 3 (JM-1264)
LOU MCCREARY
Executive Assistant Attorney General
JUDGE ZOUIE STEAKLEY
Special Assistant Attorney General
RENEA HICKS
Special Assistant Attorney General
RICK GILPIN
Chairman, Opinion Committee
Prepared by Tom G. Davis
Assistant Attorney General
Pm 6757
Untitled Texas Attorney General Opinion
Combined Opinion