THE ATTORNEY GENERAI. 

OF TEXxU3 

July 6. 1987 

JIM Mxl-cox 

XlToRs’EY OESERAL 

r? 

Ronorable Gary W. Rholes 

Shelby County Attorney 

104 Church Street 

Center, Texas 75935 

Opinion No. M-738 

Re: Authority of a county attorney to 

hire an investigator without approval 

of the commissioners court, where payment will be made solely from funds 

collected pursuant to article 53.08 of 

the Code of Criminal Procedure 

Dear Mr. Rholes: 

You ask about the authority of a county attorney to hire an 

investigator without approval of the commissioners court when payment 

of the investigator’s salary will be made solely from funds collected 

pursuant to article 53.08 of the Code of Criminal Procedure. 

Pou note that funds collected under article 53.08 are to be 

expended “at the sole discretion ~of the 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 and efficient operation and 

administration of the office.” Your concern is prompted by section 

41.106(a) of the Government Code which allows 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 a criminal district attorney from the fund established 

by article 53.08. It states: 

Article 53.08 of the Code of 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 

p. 3436 
Ronorable Gary W. Rholes - Page 2 (JR-7381 

attorney, and may be used only to defray 

the salaries and expenses of the 

prosecutor’s office. . . . (Emphasis 

added). 

This statute creates a special fund which 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 from the 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. Ex parte McIver, 586 S.W.2d 851 (Tex. 

Grim. App. 1979). Thus, by virtue of the express 

language of the statute, the hot check fund is 

explicitly placed beyond the reach of the 

commissioners court. 

By its terms, article 2368a applies 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 and materials 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 the purchase in question. 

We have 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 

are without any right to administer the fund or 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 

p. 3437 
Eoaorable Gary W. Rholes - Page 3 (m-738) 

and. therefore, to the legislature's intent. A 

conmissioners court could, for example, refuse to 

accept any or all bids in a particular instance 

and thus interfere with the exclusive right of the 

designated individuals to administer the fund and 

to determine when, for what purposes, and under 

what circumstances expenditures will be made from 

it. 

Attorney General Opinion JM-313 (1985) expressly states that the 

prosecuting attorney way make expenditures 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 may hire an investigator and set 

his salary without approval of the commissioners court where payment 

of the salary is made from such 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 same is derived solely from funds 

collected under article 53.08 of the Code of 

Criminal Procedure. 

JIM MATTOX 

Attorney General of Texas 

MARY KELLER 

Executive Assistant Attorney General 

JUDGE ZOLLIE STUKLEY 

Special Assistant Attorney General 

RICK GILPIN 

Chairman, Opinion Committee 

Prepared by Tom G. Davis 

Assistant Attorney General 

p. 3438