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.JlX 3lATTOX December 10, 1990

Honorable John D.Hughes County Attorney Hood County Courthouse Room 6 Granbury, Texas 76048 Opinion No. JM-1253

Re: Whether aprosecutor may use drug seizure funds to pay bonuses or increase salaries without approval of the commissioners court (RQ-2078)

DearMr. Hughes:

You ask whether a prosecuting attorney may use drug seizure funds to pay bonuses or increase salaries of employees without fixst obtaining the approval of the commissioners court. You also ask if itwould constitute a violation of the criminal law ifa prosecutor were to pay bonuses or salary increases to employees without having obtained the approval of the commissioners court.
Article 59.06 of the Code of Criminal Procedure, adopted byActs 1989, 71st Leg., 1st C.S., ch. 12, § 1, at 14, and effective October 18 disposition of forfeited property.i 1989, addresses the Section (d)of article 59.06 provides:

Proceeds awarded under this ChaDter to a lawenforcement aoencv or to the attorney

1. Forfeiture provisions prior to the 71st Legislature were contained inarticle, 4476-15, V.T.C.S., the Texas Controlled Substances Act. See Attorney General Opinion JM-678 (1987).The Texas Controlled Substances Actwas codified as part of theHealth and Safety Code (effective September 1, 1989). &g Health &Safety Code, Acts 1989, 71st Leg., ch. 678, 5 1,at 2230. Thiswas anon-substantive codification. However, each of the codified forfeiture provisions was repealed, effective October 18, 1989. See Acts 1989, 71st Leg., 1st C.S., ch. 12, §6,at 21. New statutes dealing with the same subject matter, which are substantially different from the repealed Controlled Substance Act provisions, were enacted asarticles 59.02, 59.05, 59.06 and 59.08 of the Code of Criminal Procedure. Id. §1. See Statev. Garcia, Docket No. 04-89-00194~CV, Tex. App. - San Antonio, October 3, 1990 (unreported).

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reoresentina the state mav be soent bv the aaencv or the attornev after abudaet for the exnenditure of the Droceeds has been submitted to the co issioners Court aovernina bodv of t: municiDality. or The budget must bedetailed and clearly list and define the categories of expenditures, but may not listdetails thatwould endanger the security of an investigation or prosecution. Expenditures are subject to audit provisions established under this article. A commissioners court orgoverning body of a municipality may notuse the existence of an award to offset or decrease total salaries, expenses, and allowances that the agency or the attorney receives from the commissioners court orgoverning body at orafter the time the proceeds are awarded. The head of the aoencv orattornev reoresentina the state may not use the existence of an award to increase a salarv. exnense. or allowance for an DlOV f the attornev or aaencv who is ~~daet~~ 'bv the commissioners court or aovernina bodv unless the commissioners court oraovernina bodv first aonroves the exnendiw. (Emphasis added.)

you advise that bonuses are given for achievement to employees and that employees arepaid frombudgeted county funds.
Article 59.06(d) expressly provides that an attorney representing the statemay not use drug forfeiture funds to increase a "salary, expense, or allowance for an employee of the attorney or agency who isbudgeted by the commissioners court . . .unless the commissioners court . . .first approves the expenditure." We believe that the payment of any additional compensation to an employee in the prosecutor's office who is budgeted by the commissioners court iscontingent upon the commissioners court's approval.

In light of your relating that bonuses are given for achievement, there is also a constitutional prohibition relevant to their payment. Bonuses for achievement are compensation for services rendered. Attorney General Opinion JW-313 (1985)concluded that aprosecuting attorney may notpay bonuses from the "hot check" funddespite the fact that article 53.08 of the Code of Criminal Procedure (nowarticle 102.007 of said code) permits the prosecuting attorney sole discretion in using such funds to defray salaries and expenses in his office. Itwas noted that article III, section 53, of the Texas Constitution prohibits thepaying of extra compensation to apublic officer, agent, servant or contractor for services after they have been rendered. Abonus may bepaid to a county employee only if

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the commissioners court has approved thebonus plan as part of compensation before the services are rendered. See Attorney General Opinions JM-459 (1986):H-786 (1976);H-402 (1974).

You also ask if itwould constitute aviolation of the criminal law ifa prosecuting attorney uses drug seizure funds topay bonuses or salaries under the circumstances you have related without having obtained the approval of the commissioners court. You do not refer to a specific provision of criminal law. The resolution ofwhether the circumstances youhave related constitutes aviolation of anyprovision of the criminal law involves the determination of factual issues anddoes not comewithin theprovince of the opinion process.

SUMMARY

The payment ofany additional compensation fromthe drug forfeiture funds to employees intheprosecutor's officewhose salaries are budgeted by the commissioners court is contingent upon approval of the commissioners court. Payments for services rendered inthe formof bonuses areprohibited by article III, section 53, of the Texas Constitution, unless thebonus plan isapproved aspart of a compensation before the services are rendered.
Very truly yo r , 

# l-l/Ni%%

A;, JIM MATTOX Attorney General ofTexas

MARY KELLER FirstAssistant Attorney General

LOUMCCREARY Executive Assistant Attorney General

JUDGE ZOLLIE STEAKLKY Special Assistant Attorney General

RENEA HICKS Special Assistant Attorney General

RICK GILPIN Chairman, opinion Committee Prepared by TomG. Davis Assistant Attorney General

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