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