I 

.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 a prosecutor may 

use drug seizure funds to pay 

bonuses or increase salaries 

without approval of the commissioners court (RQ-2078) 

Dear Mr. 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 it would constitute a 

violation of the criminal law if a 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 by Acts 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 

law enforcement aoencv or to the attorney 

1. Forfeiture provisions prior to the 71st Legislature 

were contained in article, 4476-15, V.T.C.S., the Texas Controlled Substances Act. See Attorney General Opinion JM-678 

(1987). The Texas Controlled Substances Act was codified as 

part of the Health and Safety Code (effective September 1, 

1989). &g Health & Safety Code, Acts 1989, 71st Leg., ch. 

678, 5 1, at 2230. This was a non-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repealed, effective October 18, 1989.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different from the repealed Controlled Substance Act 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 as articles 59.02, 59.05, 59.06 and 

59.08 of the Code of Criminal Procedure. Id. § 1. See 

State v. Garcia, Docket No. 04-89-00194~CV, Tex. App. - San 

Antonio, October 3, 1990 (unreported). 

P. 6676 
Honorable John D. Hughes - Page 2 (JM-1253) 

I 

reoresentina the state mav be soent bv the 

aaencv or the attornev after a budaet for the 

exnenditure of the Droceeds has been 

submitted to the co issioners Court 

aovernina bodv of t: municiDality. 

or 

The 

budget must be detailed and clearly list and 

define the categories of expenditures, but 

may not list details that would endanger the 

security of an investigation or prosecution. 

Expenditures are subject to audit provisions 

established under this article. A commissioners court or governing body of a municipality may not use 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 or governing body at or after the time 

the proceeds are awarded. The head of the 

aoencv or attornev 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 

or aovernina bodv first aonroves the exnendiw. (Emphasis added.) 

you advise that bonuses are given for achievement to 

employees and that employees are paid from budgeted county 

funds. 

Article 59.06(d) expressly provides that an attorney 

representing the state may not use drug forfeiture funds to 

increase a "salary, expense, or allowance for an employee of 

the attorney or agency who is budgeted 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 is contingent 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 a prosecuting attorney 

may not pay bonuses from the "hot check" fund despite the 

fact that article 53.08 of the Code of Criminal Procedure 

(now article 102.007 of said code) permits the prosecuting 

attorney sole discretion in using such funds to defray 

salaries and expenses in his office. It was noted that 

article III, section 53, of the Texas Constitution prohibits 

the paying of extra compensation to a public officer, agent, 

servant or contractor for services after they have been 

rendered. A bonus may be paid to a county employee only if 

P. 6677 
Honorable John D. Hughes - Page 3 (JM-1253) 

the commissioners court has approved the bonus 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 it would constitute a violation of the 

criminal law if a prosecuting attorney uses drug seizure 

funds to pay 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 of whether the 

circumstances you have related constitutes a violation of 

any provision of the criminal law involves the determination 

of factual issues and does not come within the province of 

the opinion process. 

SUMMARY 

The payment of any additional compensation 

from the drug forfeiture funds to employees 

in the prosecutor's office whose salaries are 

budgeted by the commissioners court is contingent upon approval of the commissioners 

court. Payments for services rendered in the 

form of bonuses are prohibited by article 

III, section 53, of the Texas Constitution, 

unless the bonus plan is approved as part of 

a compensation before the services are 

rendered. 

Very truly yo r , l-l A;, /Ni%% 

JIM MATTOX 

Attorney General of Texas 

MARY KELLER 

First Assistant Attorney General 

LOU MCCREARY 

Executive Assistant Attorney General 

JUDGE ZOLLIE STEAKLKY 

Special Assistant Attorney General 

RENEA HICKS 

Special Assistant Attorney General 

RICK GILPIN 

Chairman, opinion Committee 

Prepared by Tom G. Davis 

Assistant Attorney General 

P. 6678