THE ATTORSEX- GESERAL 

OF TEXAS 

December 19, 1990 

Honorable Bob Bullock 

Comptroller of Public 

Opinion No. JM-1264 

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 attorney (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. Section 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 prosecutors 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 subsection (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. Furthermore, 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 prosecutor 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