### THE ATTORNEY GENERAI. OF TEXxU3 July 6. 1987 JIM Mxl-cox XlToRs’EY OESERAL

r? Ronorable GaryW.Rholes

Shelby CountyAttorney 104ChurchStreet Center, Texas 75935 Opinion No.M-738
Re: Authority of acounty attorney to hire an investigator without approval of the commissioners court, wherepaymentwill be made solely from funds collected pursuant to article 53.08 of **the** Codeof Criminal Procedure
DearMr. Rholes:
You ask about the authority of a county attorney to hire an investigator without approval of the commissioners court whenpayment of the investigator’s salary will bemadesolely from funds collected pursuant to article 53.08 of the Codeof Criminal Procedure.
Pou note that funds collected under article 53.08 are to be expended “at the sole discretion ~ofthe attorney” and that section 41.102 of the Government Code provides that a prosecutor “may employ

. . . investigators

. . . and other office personnel that in his judgment are required for the proper andefficient operation and administration of the office.” Your concern is prompted by section 41.106(a) of the GovernmentCodewhichallows the prosecuting attorney to fix the salaries of investigators and other office personnel

“subject to the approval of the commissioners court.” Attorney General Opinion MW-439(1982) addressed the question of expenditures by acriminal district attorney from the fund established byarticle 53.08. It states:

Article 53.08 of the Codeof Criminal Procedure authorizes a county attorney, district attorney, or criminal district attorney to collect a fee if his office processes a hot check under certain circumstances. It further provides that: (e) Fees collected under this article shall be deposited in the county treasury in a special fund to be administered by the county attorney, district attorney, or criminal district attorney. Expenditures from this fund shall be at the sole discretion of the

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attorney, andmaybeusedonly to defray the salaries and expenses of the prosecutor’s office.

. . . (Emphasis added).
This statute creates aspecial fundwhich is in the county treasury, but which is segregated from other county funds and earmarked for a specific purpose. **More** Importantly. the statute states that the fund is to be administered by county attorneys, district attorneys, and criminal district attorneys, and that, within the limits set out therein, expenditures fromthe fund are to be made at their sole discretion. The express enumeration of particular persons or things in a statute is tantamount to an express exclusion of all others. Exparte McIver, 586S.W.2d 851 (Tex. Grim. App. 1979). Thus, byvirtue of the express language of the statute, the hot check fund is explicitly placed beyond the reach of the commissioners court. Byits terms, article 2368aapplies only where a county acts ‘through its Commissioners Court.’ It follows, in our opinion, that the statute is not triggered unless, in making a specific purchase, a county acts through its commissioners court. Article 1659a does not contain this precise language, but it does state that contracts for the purchase of supplies andmaterials are to be avarded to the party who‘in the judgment of the Commissioners Court’ submits the lowest and best bid. This is sufficient to convince us that, like article 2368a, article 1659a does not come into play where a commissioners court is not involved with thepurchase in question.
Wehave noted that article 53.08 gives the exclusive right to administer the hot check fund, and to make purchases from **it,** to county attorneys, district attorneys, and criminal district attorneys. Because commissioners courts arewithout anyright to administer the fundor to be involved in making expenditures from it, we conclude, for the reasons set forth above. that articles 2368a and 1659a are inapplicable in this purchasing context. In this respect, it should be noted that to conclude that these statutes are applicable is to give commissioners courts an indirect means of controlling the fund, a result contrary to the express terms of article 53.08

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and. therefore, to the legislature's intent. A conmissioners court could, for example, refuse to accept any or all bids in a particular instance andthus interfere with the exclusive right of the designated individuals to administer the fund and to determine when, for what purposes, andunder what circumstances expenditures will be madefrom it. Attorney General Opinion JM-313 (1985) expressly states that the prosecuting attorney waymakeexpenditures from the hot check fund to hire staff without the prior authorization of the commissioners court. Since article 53.08 gives the exclusive right to county attorneys, district attorneys and criminal district attorneys in administering the fund to defray the salaries and expenses of the prosecutor's office, it is our opiaion that you mayhire an investigator and set his salary without approval of the commissioners court where payment of **the** salary is madefromsuch fund.
SUMMARY Approval of the commissioners court is not required for a county attorney to hire an investigator and set his salary where the expenditure for sameis derived solely from funds collected under article 53.08 of the Code of Criminal Procedure.

JIM MATTOX **Attorney** General ofTexas
MARY KELLER Executive Assistant Attorney General
JUDGE ZOLLIESTUKLEY Special Assistant Attorney General
RICKGILPIN Chairman, Opinion Committee Prepared byTomG.Davis Assistant Attorney General

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