JIM MATTOX 

Attorney General 

Supreme Cowl Building 

P. 0. Box 12548 

Aus!in. TX. 70711.2348 

512,4752501 

Telex 9101074-1367 

Telecopier 512/4754266 

714 Jackson, Suite 700 

Dallas, TX. 75202.4506 

2141742.8944 

4824 Alberta Ave.. Suite 160 

El Paso. 7X. 79905-2793 

91515333404 

’ Texas. Suite 700 

I, ,ton, TX. 77002CNll 

713/223-5886 

006 Broadway. Suits 312 

Lubbock. TX. 79401.3479 

0061747.5238 

4309 N. TsnIh. Suite S 

McAllen. TX. 78501.1685 

5121682-4547 

200 Main Plaza. Suite 400 

Son Antonio. TX. 78205-2797 

512m5.4191 

An Equal OpportunitYl 

Allirmative Action Employer 

The Attorne,y General of Texas 

May 1, 1985 

Honorable Oscar H. Ilsuzy 

Chairman 

Committee on Jurisprudence 

Texas State Senote 

P. 0. Box 12068, Capi.tol Station 

Austin, Texas 78711 

Opinion No. JM-313 

Re: Use of the “bad check fund” 

under article 53.08 of the Code 

of Criminal Procedure by a district attorney, county attorney, 

or criminal district attorney 

Dear Senator Mausy: 

Article 53.08 of the Code of Criminal Procedure authorizes the 

county attorney, d:lstrict attorney, or criminal district attorney 

[hereinafter attorney] to collect fees from persons who have passed 

“bad checks” and est.a.blishes a special fund in the county treasury in 

which the fees must be deposited. Under article 53.08, the fund is 

administered by the attorney rather than by the county commissioners 

court. You ask r;everal questions about the propriety of the 

attorney’s making specific types of expenditures from the fund. Most 

of the disbursemen,:s about which you inquire relate to specific 

expenses of the prmecutor’s office, including payment for office 

supplies and equipment, for the salaries of various employees, and for 

certain “bonus” expc!nse allowances and salary supplements, You also 

ask generally wheth’zc the attorney must obtain the approval of the 

commissioners court prior to making expenditures from the fund. Both 

this general question and your specific questions, however, depend 

upon the scope of the statutory authority granted to the attorney by 

article 53.08. Accordingly, a basic explanation of the provision must 

precede our response ‘to your specific questions. 

Article 53.08 p,rovides, in part: 

(e) Fetzs collected under this article shall be 

deposited :in the county treasury in a special fund 

to be a6$nistered by the county attorney. 

district at’torney, or criminal district attorney. 

Expenditur@ from this fund shall be at the sole 

discretion of the attorney, and msy be used only 

to defrfy ?he salaries and expenses of the prosecutor s l>.ffice, but in no event may the county 

attorney, &trict attorney, or criminal district 

attorney sceplement his or her own salary from 

this fund. Nothing in this Act shall be construed 

p. 1427 
Honorable Oscar Ii. Hauty - Page 2 (JM-313) 

to decrease the ,cotal salaries, expenses, and 

allowances which a prosecuting attorney’s office 

is receiving at the time this Act takes effect. 

(Emphasis added). 

TWO aspects of this section are relevant to your inquiry: the 

creation of a special fund and the grant of expenditure power to the 

attorney. 

Several prior opinions of this office dealt with article 53.08. 

See Attorney General Opinior,s W-584, 

-00,. 

IN-439 (1982); MU-241, IN-188 

Controversies over interpretation of the act stemmed from 

article 53.08’s directive thzlt: the fund is “to be administered by the 

county attorney, district attorney , or criminal district attorney” and 

that “[elxpenditures from thI,s fund shall be at the sole discretion of 

the attorney. . . .” Ordinnrily, expenditures of county funds are 

controlled by the county commissioners court. In question 18, you ask 

whether the attorney must obtain the approval of the commissioners 

court before making expenditures from the fund. Three prior opinions 

of this office provide neclessary background information and are 

significant to the scope of the attorney’s authority over the fund. 

Attorney General Opini~,n MW-188 (1980) concluded that county 

auditors may prescribe accounting and control procedures for all fees 

collected pursuant to artic1.e 53.08 despite the fact that the fees 

were properly to be deposl.t,ed in a special fund in the county 

treasury. The opinion found 

no conflict between the district attorney’s 

limited statutory discretion to determine the 

purpose for which zxpenditures from the fund are 

to be made and th; auditor’s statutory pover to 

prescribe accounting and control procedures for 

making deposits ;uld disbursements. (Emphasis 

added). 

Thus, the attorney has “limi,:ed statutory discretion” over the nature 

of expenditures from the fund. 

Some confusion may have arisen from the language in Attorney 

General Opinion MW-439 (1982). The opinion concluded that the 

statutes which require comp<rtitive bidding prior to certain county 

expenditures are not applicable to the special fund created by article 

53.08 because the comp&itl,ve bidding statutes apply only vhen a 

county acts through its cotmlissioners court. In Attorney General 

Opinion MW-439, this office! stated that “the hot check fund is 

explicitly placed beyond the reach of the commissioners court.” The 

rationale for the conclusion was that 

p. 1428 
Honorable Oscar H. Mauzy - Page 3 (m-313) 

article 53.08 glws the exclusive right to 

administer the hot check fund , and to make 

purchases from it, to county attorneys, district 

attorneys, and crlmlnal district attorneys. 

We emphasize that this opinion does not Indicate that expenditures by 

a county officer never fall wlthln the scope of statutes vhlch contain 

express refereoces to actlcns taken by the commissioners court. 

Because county funds have been traditionally admlnlstered and expended 

by the cowalssioners court, the legislature’s reference to actions 

taken by the commissioners court may, in some instances, be Intended 

to cover generally the expend:iture and handling of “county funds.” 

Despite the broad langw8e In Attorney General Opinion MW-439, 

this office later held, in ,U:torney General Opinion MW-584 (1982), 

that certain reporting statut.es are applicable to funds collected 

pursuant to article 53.08. The opinion indicated that 

although article 53.08 permits a county attorney 

to determine, w1thj.n certain limitations, the 

purposes for which the funds may be expended, It 

does not convert t:hem into non-public funds. 

Indeed, the statute specifies that the funds may 

be used ‘only to deE.cay the salaries and expenses 

of the prosecutor’s office,’ Inarguably a public 

purpose. . . . [S]w:h funds are collected for the 

use of the state ani; county. . . . 

Consequently , the opinion concluded that the attorney administering 

the fund Is required to report the collection and dlsbursement,of all 

funds collected pursuant to .artlcle 53.08 in accordance with the 

directives of certain report1r.g statutes. 

Thus. the answer to questzion number 18 is clear. The attorney 

administering the fund need ‘lot obtain the approval of the commissioners court prior to making expenditures from the fund. Nevertheless, as stated In Attorney General Opinions MU-188 and MU-584, this 

statutory discretion Is subjec:t to certain limitations. The attorney 

must administer the fund within the confines of laws applicable to the 

use of county funds. 

You ask the following specific questions: 

1. May the county attorney, dlstrlct 

attorney, or criminal district attorney [herelnafter ‘the attorney’ :I make expenditures from the 

fund to supplement the salaries of assistant 

prosecutors or other employees? Is the payment of 

salary supplements ,I:istlnct from expenditures to 
Honorable Oscar H. Mauzy - Page 4 (JM-313) 

defray the salaries of assistant prosecutors or 

other employees? 

2. Is there a salary schedule for assistant 

prosecutors or other employees of the attorney? 

Do payments above the scheduled level defray the 

salary of the employee7 

3. May the attorrley make expenditures from 

the fund to defray t!w salaries and expenses of 

the entire prosecut#zcs office, or are such 

expenditures limited to defraying the salaries and 

expenses of asslstia,t prosecutors or other 

employees Involved in the prosecution of offenses 

enumerated in article 53.08(a)? 

4. May the attowey make expenditures from 

the fund to pay for Christmas bonuses, or other 

types of bonuses, fcr assistant prosecutors or 

other types of employees? 

5. May the attorney make expeadlturee from 

the fund to provide flxc automobile and/or parking 

allowances for assistant prosecutors or other 

employees? 

6. May the attolriey make expenditures from 

the fund to rent or purchase office equipment? Is 

the use of this equipment limited to assistant 

prosecutors and other employees Involved in the 

prosecution of offenses enumerated in article 

53.08(a)? 

7. May the attorrley make expenditures from 

the fund to pay the expenses of assistant prosecutors who attend continuing legal educational 

programs? Must these programs relate to the 

prosecution of offenses enumerated in article 

53.08(a), or may programs of any subject matter be 

funded? 

8. Are asslstan t prosecutors or other 

employees receiving or benefltting from any 

;expenditure from the fund required to pay federal, 

state, or local lnccm,e taxes, including Social 

Security, on such amcr.nta? Must these taxes be 

withheld from the ass:tstant prosecutor’s or other 

employee’s paycheck? 

p. 1430 
Honorable Oscar Ii. Mauzy - Page 5 (~~-313) 

9. Is the atwrney required to spend the 

entire fund, or may he carry a positive balance 

from one fiscal yew: to the next? If the entire 

fund Is not expendsad. must the balance be turned 

over to the county at the end of the fiscal year? 

10. Hay the [at.torney] make expenditures from 

the fund to hire staff whose positions are not 

authorized by the coarmissloners court? _, 

11. May the attorney make expenditures. from 

the fund to pay for s computerized office security 

system? 

12. Hay the attorney make expenditures from 

the fund to pay for the $nstallatlon of new carpet ” 

in the offices of the attorney and the attorney’s 

staff? 

13. May the attorney make expenditures from 

the fund to pay. dues of the State Bar of Texas of 

assistant prosecutors employed by the’attorney? 

14. May the attorney make expenditures from 

the fund to pay the college tuition of his 

secretary? ,. 

15. May the attorney make expenditures from 

the fund to pay :lor ‘management retreats’ for 

members of his staff on dude ranches in the Texas 

hill country? 

16. May the attorney make expenditures from 

the fund to pay fcr coffee, doughnuts, or lunch 

for members of the g.rand jury? 

17. May the attorney make expenditures from 

the fund to pay’ for framed color photographs of 

the grand jury for wmbers of the grand. jury? 

Because many of these questions are int~errelated and .because 

there are a number of the:n, for clarity the questions vi11 be 

discussed by topic. 

Questions 3, 6,. snd 7 each raise the Issue of whether the fund 

may be used to defray costs related to the entire office of the 

prosecuting attorney. .or to d,efray only oosts attributable to the 

portion of.the offlce,devoted to tha prosecution and collection of bad 

checks as enumerated In art:lcl.e 53.08. Quest.lon 9 deals with the 

disposition of excess funds. What constitutes “excess” funds depends, 

‘?. 1431 
honorable Oscar 8. Nauzy - Page 6 ml-313) 

-- 

in part, upon the scope of expenditure pover. The only guidance 

provided 01 article 53.08 with regsrd to this quertion appears lo 

section (8). 

Section (e) of article ,53.08 prwides. in part: 

Expenditures from ,this fund . . . usy be used only 

to defray the salaries and expenses of the 

prosecutor’r off+, . , , @upbasis added) 

The fuudamsntal rule governing the interpretation of statutes is 

to give effect to the inteue:Lou of the legislature. City of Sherman 

v. Public Utility Cowissio~, 643 6.W.Zd 681, 684 (Tex. 1983). To 

determine the leglslsture’o :Lntent and the purpose for a particular 

provision, it ir proper to conrider the history of the subject matter 

involved. the problsu to be rauedied. snd the ultiuate purposes to be 

sccouplished. & 

Ths legislative hlrtory sod bill snslpsia of article 53.08 

indicate that the prwisian vas intended to make the bad check 

prosecution and collection process self-supporting. This fact 

suggests that expenditures were intended to be cede only for expenses 

relsted to tbs prosecution and collection of bad cbec’ls. The 

collecting of bad checks, btnrever, is an additioual function for the 

attorney’s office. ths cost of vbich xsy not alvays be clearly 

l pportfousbls. 

The Fiscal Nots of the :Asgislative Budget Board reveala that 

[i]t 5s not possib:ltr became of lack of bssic data 

to estimate the additional revenue vhlch vould be 

collectsd by county governments should the bill be 

enacted. 

Bill Aualysis to Eouse Bill No. 825, Fircal Note prepared for 

Cosmittee ou Criuiusl Jurisprudence, filed in Bill File to Eouse Bill 

No. 825, 66th Lsg.. Lsgislatlve Reference Library (1979). Thus, it is 

possible that ths leglslsttm did not anticipate thst the fuud vould 

svsu cwsr the cost of procelming and collecting checks or bank drafts 

pursuant to srticle 53.08, rw:h less provide s source of surplus funds 

for the state or for the counties. 

Nothing in the lsugusge of tbs act. bovever, expressly limits 

expenditurss to the costs of ‘actuslly procsssing and collecting bad 

checke . The language of rmtioxi (s) is brosd. &ester statutory 

guidance thsn exlrts im srtlc:Le 53.08 is necessary to s finding of au 

iuplied liuit. The phrase “prosecutor’s offics” in section (e) 

suggerts the office in peusrsl, ths vhole office. The prlemry source 

of the intent and meaninng of a strtuts is obtained from the actusl 

language of ths stetuts. City of Sherman v. Public Utilite 

p. 1432 
- -. 

Honorable Oscar H. Hauzy - Page 7 (J-M-313) 

Commission, 643 S.W.Zd at 684. Because of the broad language used in 

section (e) and because of the lack of any express or implied limit on 

expenditures from the fund to t.b.e costs of effecting article 53.08, we 

conclude that expenditures are not limited to the costs which are 

related solely to the prosewtion and collection of bad checks. 

Outlays may be made for the whole prosecutor’s office. 

Expenditures from the special fund are, however, limited to defraying “the salaries and expznsea of the prosecutor’s office.” In 

other words, all expenditures from the fund must relate to the 

official business of the prosewtor’s office. There is no requirement 

that the attorney spend the entire fund; rather, the attorney may 

spend no more than the amount which is reasonably necessary to defray 

the salaries and expenses of the office. Any surplus must remain in 

the fund, subject to the lee,islature’s further direction for disposition. A positive balance may be carried from one fiscal year to 

the next but such funds remair. subject to the limitation to office 

expenses. Article 53.08 does not require the attorney to pay any 

excess in the special fund over to the general fund of the county. 

The attorney must, however, cwnply with various reporting statutes. 

See Attorney General Opinion MU-584 (1982) (and statutes cited 

therein). 

Analysis of particular expenditures is two-fold: (1) whether the 

expenditure is related to the official business of the office, and (2) 

whether any other constitutional or statutory provisions prohibit the 

expenditure. The particular expenditures in question will be 

discussed in five separate cawgories: (I) hiring of new personnel. 

(II) the payment of salaries and of monetary salary supplements or 

bonuses, (III) the payment of “in kind” bonuses, (IV) expenditures for 

equipment and supplies, and (‘J’) expenditures for the members of the 

grand jury. The propriety o:f particular expenditures is dependant 

upon factual conclusions which we do not address here, 

I. Hiring of New Personnel. Article 332a. V.T.C.S., applies to 

county attorneys, district attq%eys. and criminal district attorneys. 

The act addresses various aspects of personnel matters and expanses of 

the prosecuting attorneys’ off:lces. Section 2 of the act provides: 

Although 

The prosecuting attorney may employ such 

assistant prosecuting attorneys, investigators, 

secretaries. and othw: office personnel as, In his 

for the proper and 

office. (Emphasis added). 

other sections of axticle 

administration of the 

332a require commissioners court 

approval, this provision does not. Thus, in response to question 10, 

the attorney may make expenditures from the fund to’hire staff without 

the prior.authorization of the commissioners court. 

p. 1433 
Honorable Oscar H. Mauzy - PaI+ 8 (JM-313) 

II. Payment of salaries and of monetary salary supplements or 

bonuses. Questions 1, 2. andIt each deal with the payment of salaries 

and of certain salary supplements to assistant prosecutors and other 

employees of the prosecutor’s office. Article-53.08, in subsection 

(e) . expressly authorizes and limits expenditures from the special 

fund “to defray the salar:les 

-- 

(Emphasis addecg. 

and expanses of the prosecutor’s 

office. . . .‘I Thus, the prosecuting attorney may 

clearly pay the salaries of I:he employees of the prosecutor’s office 

from the fund. Subsection l:e) specifically prohibits the county 

attorneys, district attorney!%,, and criminal district attorneys from 

supplementing their own salr.ries from the fund. The propriety bf 

salary supplements and bonuses for the employees of the attorney’s 

office depend upon the terms o:I other statutory provisions. 

Article 3912k, V.T.C.S., concerns the salaries of numerous county 

employees. Article 3912k does not apply, however, to the employees of 

a district attorney, county ,lttorney, or criminal district attorney. 

See Attorney General Opini’>ns R-908 (1976); R-656 (1975). The 

employees of all three types of prosecuting attorneys fall under the 

provisions of article 332a, V.T.C.S. 

H-922 (1977); E-908 (1976). 

See Attorney General Opinions 

Attorney General Opinion H-908 reasoned 

that article 332a is a more s;?ecific statute which was enacted later 

in time than article 3912k. 

Article 332a. in section :5, provides: 

Salaries of asc;l.stant prosecuting attorneys, 

investiaators. secretaries and - 

person& 

other off& 

shall te fixed by the prosecuting 

attorney, subject ?o the approval of the commissioners court of the county or the counties 

composing the district. (Emphasis added). 

Thus, in response to part of question 2, the existence of any “salary 

schedule” depends upon the salaries set by the various attorneys’ 

offices. Because the attorns,y’s power in article 332a is “subject to 

the approval of the commissioners court,” some clarification of our 

response to question number 16 is necessary. 

As indicated, article 332a addresses various que’stions relating 

to personnel matters and to other expenses of the attorney’s office. 

Sections 5 and 6 of the act deal with salaries and travel expenses, 

respectively, and each section expressly requires the “approval” of 

the commissioners court. In contrast, article 53.08 of the code 

places expenditures from the fund within the “sole discretion” of the 

prosecuting attorney. Article 332a was enacted in 1973, see Acts 

1973. 63rd Leg., ch. 127, at 275, whereas article 53.08 wasadded to 

the Code of Criminal Procedure in 1979. See Acts 1979, 66th Leg., ch. 

734. 51. at 1802. Therefoc’e. article53.08, as the more recent 

expression of the legislature’s intent , supersedes article 332a to the 
Honorable Oscar H. Hauty - Page 9 (JM-313) 

extent of conflict, &, with regard to expenditures from the special 

fund. To the extent that sa:Lary increases and office expenses may be 

paid from the special furd, the attorney need not obtain the 

commissioners court’s approval. 

Neither article 53.08 r,or article 332a. however, addresses the 

question of salary supplements or bonuses. Clarification of the 

distinction between salary “increases” and salary “supplements” 16 

necessary st this point. We assume that by “supplements” you mean 

payments for work that has already been performed by an employee. The 

two differ. See generally Attorney General Opinion MW-459 (1982). 

Salary increases are within the discretion of the prosecuting attorney 

by virtue of section 5 of article 332a. Although the provision 

requires the “approval of the commissioners court ,I’ see Attorney 

General Opinions H-908 and H.-922, to the extent that salary increases 

may be paid from the specl.al fund, the attorney need not obtain 

commissioners court approval. The commissioners court may not. 

however, reduce the amount already authorized for salaries in order to 

counteract, and thus interf e,ce, with the attorney’s “sole discretion” 

over the fund. See Attorney General Opinion H-922 (1977); see also 

Code Grim. Pro=‘;-art . 53.1:3(e) (“Nothing in this Act shall be 

construed to decrease the total salaries . . . which a prosecuting 

attorney’s office is receivirg at the time this Act takes effect.“). 

Nevertheless, salary increases or supplements cannot be 

retroactive. Article III, section 53 of the Texas Constitution 

provides, in part: 

The Legislature ,shall have no power to grant, 

or to authorize an;r county or municipal authority 

to grant, any extra, compensation, fee or allowance 

to a public officer, agent, servant or contractor, 

after’service has teen rendered, or a contract has 

been entered into, and performed in whole or in 

part. . . . 

See also Tex. Const. art. III, 044. Section 53 prohibits the retroactive payment of salary bonuses, supplements, or other salary 

increases by political subdivisions. Fsusett ‘I. King, 470 S.W.2d 770 

(Tex. Civ. App. - El Paso 1971, no writ); Pierson v. Galveston County, 

131 S.W.2d 27 (Tex. Civ. A,pp. - Austin 1939, no writ); Attorney 

General Opinion H-11 (1973). Even if district attorneys, county 

attorneys, and criminal dizrtrict attorneys are not themselves a 

“county or municipal authority” for purposes of article III, section 

53, the special fund created by article 53.08 is clearly comprised by 

county funds. See Attorney Ganeral Opinion MW-584 (1982). Thus, the 

attorney administering the special fund may not grant extra compensation, fees or allowances to ;u\ employee after the employee’s servlces 

have been rendered. 

p. 1435 
Honorable Oscar H. Hausy - Page 10 (JM-313) 

In sum, with regard to questions 1, 2. and 4, the payment of 

salary supplements to employeoa of the prosecuting attorney’s office 

is distinct from the payment of salaries. Although salary increases 

or supplements are authorized, payments, by whatever name, which 

compensate for past work performed by an employee of the office, are 

prohibited by the Texas Constit,ution. 

III. Payment of “in kind” bonuses. In questions 5, 7, 13, 14, 

and 15, you ask about expecaitures from the fund to pay various 

allowances and expenses to or for the employees of the attorney’s 

office. The preceding discussion about the constitutional prohibition 

against the payment of extra compensation to public employees after 

services have been rendered also applies to “bonuses” which are not 

directly related to salaries but which are intended or function as 

added compensation. For examI#le. in question 5 you ask about parking 

allowances. Paid parking may be a legitimate part of compensation, 

but when cash “parking allowances” are given directly to employees as 

a bonus after the employees’ services have been rendered, the payments 

subvert the purpose of article III. section 53. Some of the 

allowances about which you ir.q,uire appear to be added compensation; 

others fall within the category of reimbursement for expenses properly 

chargeable against the county. 

In general, payments of allowances and expenses for public 

employees must reasonably relz,t,e to the performance of the employee’s 

official duties. See Attorney General Opinions MW-116 (1979); E-1164 

(1978); H-152, 8-m (1973); W-978 (1971). Article 53.08, in subsection (e), authorizes the attorney to make expenditures from the 

fund only for “salaries and texpenses of the prosecutor’s office.” 

Moreover, article III. section 52 of the Texas Constitution expressly 

prohibits the use by a politi,cal subdivision of its public funds or 

credit for private purposes. State v. City of Austin, 331 S.W.2d 737 

(Tex. 1960) ; Attorney General-Opinion JM-220 (1984). An incidental 

private benefit from the expenditure of public funds for a public 

purpose is not prohibited. E,arrington v. Cokinos, 338 S.W.2d 133 

(Tex. 1960); Attorney General opinions JM-220 (1984); PM-251 (1980). 

In question 5 you arik about “automobile and/or parking 

allowances.” As indicated, parking for employees when they come to 

work may be a legitimate perquisite of employment. It is not, 

however, an expense incurred in the performance of the employee’s 

official duty. On the other hand, if the employee’s official duties 

require travel, an “automobile allowance” may be an expense of 

performing official duties. A,rticle 332a. la section 6, provides: 

Assistant prosecuting attorneys and lnvestigaLOTS, in addition to their salaries, may be 

allowed actual anti necessary travel expenses 

incurred in the discharge of their duties, not to 

exceed the amount- fixed by the prosecuting 

p. 1436 
Honorable Oscar H. Mauzy - PaI;e 11 (~~-313) 

attorney and apprcved by the commissioners COUKt 

of the county 0,: the counties composing the 

district. All claims for travel expenses may be 

naid from the General Fund, Officers’ Salary Fund, 

or any other av$.lable -funds of the county. 

(Emphasis added). 

As discussed previously. article 53.08 of the code replaced. to the 

extent of conflict, the provisions in article 332a which require 

commissioners court approval. To the extent that legitimate expenses 

may be paid from the fund, the attorney need not obtain comnnissioners 

court approval. 

BY “automobile allowance ,” we assume that you refer to a set 

amount of money paid at clz::taln intervals to defray the cost of 

operating a privately-owned automobile which is used in the conduct of 

the employee’s official duties. See Attorney General Opinions H-992 

(1977); H-152 (1973). If the z of the employee’6 vehicle is 

necessary to the actual performance of the employee’s official duties, 

section 6 of article 332a tuthorizes the payment to assistant prosecuting attorneys and investigators of “actual and necessary travel 

expenses incurred in the dis-harge of their duties.” Nevertheless, a 

flat rate automobile allowance which bears no relation to the number 

of miles actually driven on oEficia1 business is not authorized. See 

- 

Attorney General Opinion H-152 (1973). 

Question 13 refers to tl,e payment of State Bar dues for assistant 

prosecutors. In Attorney General Opinion MN-251 (1980), this office 

determined that a state agency may spend public funds to pay the 

notary license fees of its employees who provide notary public 

services as part of their duties. This did not constitute an unconstitutional grant of public funds for s private purpose because the 

expenditure was directly and substantially related to the performance 

of the agency’s governmental function. Although the payment of bar 

dues by assistant prosecutors may be necessary to the performance of 

the assistant’s duties, it is an expense related to the individual’s 

profession rather than an “office expense.” A distinction must be 

made between the minimum qualifications for public employment and 

additional training and/or specialization for. additional duties. 

Accordingly, the attorney may decide to pay the State Bar dues of 

assistant prosecuting attorneys only as additional compensation, and 

not as an expense of the office. 

Opinions MN-276, MN-156 =i55f+2&t7;;;) ;=:ef;;: (1980) ; H-1042 

(1966) ; C-506 (1965). 

The same constitutional principles apply to the expenditures you 

inquire about in questions 7, 14, and 15. Question 7 refers to 

expenditures from the fund to pay the expenses of assistant prosecutors who attend continuing legal education programs. Such 

expenditures .are authorized :lnoofar as the programs are directly and 

p. 1437 
Honorable Oscar H. Msuzy - Pagl? 12 (JM-313) 

substantially related to the performance of the office’s governmental 

functions. See Brazoria Count 

-=-=Y’* 

537 S.W.Zd 89 (Tex. Civ. 

APP , 

- Houstz[lst Diet.] 19716, no writ , Attorney General Opinions 

MW-251 (1980); H-1164, H-1133 (1978). As indicated previously, 

expenditures must relate to t‘ie duties of the prosecuting office but 

are not limited to the specific prosecuting and collection functions 

covered by article 53.08. I:> addition, when expenditures are made 

which involve potentially substantial incidental private benefits, 

article III, section 52 requires that conditions be attached to the 

expenditure to assure the use of public money for a public purpose. 

Attorney General Opinion JM-2X (1984); see Attorney General Opinions 

JM-103 (1983); MW-423 (1982); MU-60 (1979). For example, the Brazorla 

County v. Perry case dealt with a deputy sheriff who attended a law 

enforcement officer’s training program at county expense. The deputy 

sheriff agreed to reimburse the county for the expense of the program 

if he did not remain in the enploy of the sheriff’s department for at 

least two years after completing the training program. 

In question 14 you ask whether the attorney may make expenditures 

from the fund to pay the co:l:tege tuition of his secretary. It is 

conceivable that certain coll”8e courses and training programs may be 

directly and substantially rel,ated to the performance of the part of 

the office’s governmental functions which the secretary performs. The 

payment of college tuition, however, for the general education of the 

secretary is not authorized. On the other hand, if the college 

tuition is limited to cours,es which train the secretary for a 

different position or additi,onal duties which are part of the 

performance of the office’s governmental function, the expenditure 

appears legitimate. The Tex;as Constitution, however, requires that 

the office attach contractual c.onditions to the expenditure which will 

assure that the office will rc:c.eive the full value of the expenditure, 

including the value of the expenditure as a “loan” to the secretary. 

In question 15, you refer to “management retreats” on dude 

ranches in the Texas hill cowtry. It is conceivable that a legitimate training or continuing Yegal education program could be located 

in the Texas hill country. Nevertheless, if by “retreat” you do not 

refer to a formal training or education program, but rather an 

occasion merely to increase the morale and productivity of the 

attorney’s office, it may be nothing more than a private vacation at 

public expense. As such, it Eunctions as and is subject to the legal 

limits mentioned above which are applicable to additional compensation. It must be a pre-established part of the employee’s compensation. 

In question 8 you inquire about the “federal, state, or local 

income” tax ramifications of t,hese “in kind” benefits. There is, of 

course, no state or local inccome tax in Texas. Questions about the 

federal income tax consequence of the receipt by individual employees 

of "in kind" bonuses should be addressed to the Internal Revenue 

p. 1438 
. Honorable Oscar H. Mauzy - Page 13 (JM-313) 

Service. We note, however, c:hat for some purposes, Texas law draws a 

distinction between expenses and compensation. See Attorney General 

Opinions JM-39 (1983); NW-391 (1981); cf. MW-334 (1981). 

- 

IV. Expenditures for equipment and supplies. In questions 6, 

11. and 12 YOU ask about the propriety of making exnenditures from the 

fund for various types of ec,uipment and suppli&. . Subsection (e) of 

article 53.08 expressly provides that expenditures from the fund may 

be used to defray the “exI,enses of the prosecutor’s office.” As 

indicated previously, expendj,tures are not limited to the direct costs 

of effecting article 53.08, ‘>ut may be used to defray the expenses of 

the entire prosecutor’s office. Nevertheless, expenditures must 

directly relate to the official duties and functions of the prosecutor’s office. Consequently , the attorney may make expenditures 

from the fund to pay for a cc~mputerired office security system and new 

carpet if those things are re.ssonably necessary to the performance of 

the official duties of the p.rosecutor,s office. To the extent that 

such expenditures can be made from the special fund, the approval of 

the commissioners court need c.ot be obtained. 

V. Expenditures for members of the grand jury. In questions 16 

and 17 you ask whether the T’ttornev may make exnenditures from the 

fund to-pay for coffee, douf;tlnuts, iunch, and framed photographs for 

members of the grand jury. These are clearly not expenses of the 

prosecuting attorney’s 0ff:lce. Compare Code Crim. Proc. 1038. 

Consequently, totally aside E,rom the ethical considerations involved, 

the attorney lacks the authority to make such expenditures. 

2, U M M A R Y 

The county alztorney, district attorney, or 

criminal district attorney who administers the 

special “bad check” fund created pursuant to 

article 53.08 of ,:he Code of Criminal Procedure 

need not obtain th,e approval of the commissioners 

court prior to making expenditures from the fund. 

Expenditures from t.he special fund are not limited 

to the costs which are related solely to the 

prosecution and collection of bad checks; they may 

be made for the whole prosecutor’s office. 

Outlays from t’he fund are, however, limited 

to defraying the salaries and expenses of the 

prosecutor’s office. Although salary increases 

and pre-existing “in kind” forms of compensation 

are authorized, no l~onuses, salary supplements, or 

allowances may be made which operate as additional 

compensation to an employee after the employee’s 

services have been rendered. An employee may, 

however, be reimbursed for legitimate expenses 

p. 1439 
Ronorable Oscar H. Maury - Page 14 (JM-313) 

incurred in the Performance of the employee’s 

official duties. 

The attorney may make expenditures from the 

fund to pay for of:f:lce equipment and supplies if 

they are reasonablg, necessary to the performance 

of the official dut:les of the prosecutor’s office. 

Expenditures for t!w benefit of members of the 

grand jury are not authorized. 

JIM MATTOX 

Attorney General of Texas 

TOM GREEN 

First Assistant Attorney Gener,al 

DAVID R. RICHARDS 

Executive Assistant Attorney Ceneral 

RICK GILPIN 

Chairman, Opinion Cormaittee 

Prepared by Jennifer Riggs 

Assistant Attorney General 

APPROVED: 

OPINION COMMITTEE 

Rick Gllpin, Chairman 

Jon Bible 

Colin Carl 

Susan Garrison 

Jim Moellinger 

Jennifer Riggs 

Nancy Sutton 

p. 1440