THE L+I~TORNEY GENERAL 

OF-XAS 

Hon. Jimmy Morris 

Criminal District Attorney 

Navarro County Courthouse 

P. 0. Box 1143 

Corsicana, Texas 75110 

Dear Mr. Morris: 

Opinion No. M- 1087 

Re: Whether the Criminal District 

Attorney of Navarro County may 

become a member of the State 

Retirement S,ystem, pursuant to 

Article 6228a, Vernon's Civil 

Statutes, or the District and 

County Retirement System, pursuant to Article 6228g, Vernon's 

Civil Statutes. 

Your recent letter requesting the opinion of this office 

concerning the referenced matter states, in part, as follows: 

"The Criminal District Attorney of Navarro 

County is paid entire,ly from State funds. Art. 

326k-63. Navarro County does not supplement the 

salary. 

"Whichretirement system may the Criminal 

District Attorney of Navarro County join--the 

'State' (art. 6228a) or the 'District and 

County' (art. 6228g)?" 

Section 3(B) (1) of Article 6228a, Vernon's Civil Statutes, 

which is the Act establishing the Employees Retirement System of 

Texas, provides as follows: 

"The membership of said Retirement System 

shall be composed of any elective state official 

or appointee in an elective office of the state, 

including all elected or appointed members of 

the State Legislature, or elected by the members 

of either or both houses of the State Legislature, 

and also including District Attorneys receiving 

salaries paid by the State from the State General 

Revenue Fund, but shall not include any elective 

official in the Judicial, Education, District, or 

-5310- 
. - 

Hon. Jimmy Morris, page 2 (M-1087) 

County, of the State of Texas other than those 

expressed eligible as provided herein." (Emphasis added.) 

The Texas County and District Retirement System is authorized by Section 62(c) of Article XVI of the Constitution of 

Texas. Pursuant to that constitutional provision, Article 6228g, 

Vernon's Civil Statutes, was enacted and sets forth the requisites 

and procedures for the County and District Retirement System. Section 2(6) of Article 6228g defines "employee" as follows: 

"'Employee' means any person who is certified by a subdivision as being regularly engaged 

in the performance of the duties of an elective or 

appointive office, or of any position of employment 

with the subdivision, which office or position normally requires actual performance of duty during not 

.less than nine hundred (900) hours a year, and as 

receiving compensation from the subdivisionforhe 

performance of such duties. Upon the terms and 

conditions set out in Section llA, the term 'employee' 

includes any person regularly engaged in the performance of the duties of an elective or appointive State 

or district office who receives compensation, in addition to that received from the State of Texas, from 

the county or counties in which he serves, and the 

person with the approval of the respective subdivision 

shall be entitled to participate in the System to the 

extent of any additional compensation received from 

the participating subdivisions. The term 'employee' 

does not include any person as to any period of service for which he would be eligible to be included in 

or entitled to receive credit in s . . the Employees 

Retirement System of Texas. . . ." (Emphasis added.) 

Your office was established by Article 326k-63, Vernon's 

Civil Statutes. Section 7 of that Article provides as follows: 

"The ~criminal district attorney shall be compensated for his services by the state in such manner 

and in such amount as may be fixed by the general law 

relating to the salary to be paid to district attorneys 

by the state, and in addition his salary may be supplemented by the commissioners court in such amount as 

it deems advisable." 

-5311- 
Hon. Jimmy Morris, page 3 (M-1087) 

By your letter, you have advised us that, at present, 

your salary is paid solely out of State funds. 

It is evident that you are not eligible for membership 

in the County and District Retirement System, inasmuch as you do 

not receive any compensation from Navarro County. See the underscored provisions of Section 2(6) of Article 6228g, supra. 

Thus, the question remains as to whether you are eligible 

tom participate in the Employees Retirement System of Texas. Section 

3(B)(l) of Article 6228a, quoted supra, in setting forth those persons 

qualified for membership in that Retirement System, provides that the 

System shall include "District Attorneys receiving salaries paid by 

the State from the State General Revenue Fund. . ." District Attorneys paid by the State were included as being eligible for membership in the Employees Retirement System by the amendment in Acts 60th 

Legislature, Regular Session 1967, ch. 279, p. 668. 

We must now consider whether you, as a criminal district 

attorney paid wholly with State funds, fall within the term "district 

attorneys" used in Article 6228g. 

The term "criminal district attorney" has heretofore been 

defined by the Supreme Court of Texas. In Hill County~ v. Sheppard, 

142 Tex. 358, 178 S.W.Zd 261 (1944], that court stated as follows: 

"It will be noted that the Constitution 

[Article V, Section 211 refers to a county 

attorney, a district attorney, and a criminal 

district attorney. What is meant by a 'criminal district attorney' as used in the Constitution, and what is the difference, if any, 

between that office and the office of district 

attorney, and is the office of criminal district 

attorney a constitutional office? 

II 

. . . It is sufficient to say that when 

the Constitution is construed in the light of 

the statute above quoted [Art. 349, V.C.S.], 

it is our opinion that the term criminal district attorney refers to a class or kind of 

district attorneys, and that a criminal district attorney is a district attorney within 

the,meaning of the Constitution. 

-5312,. 
Hon. Jimmy Morris, page 4 (M-1087) 

"The office of District Attorney, including that of criminal district attorney, is a 

constitutional office, the duties and compensation of which are provided for in Article V, 

Section 21, of the Constitution above quoted.. 

II 

262-63. 

142 Tex. at 361-62, 178 S.W.Zd at 

(Emphasis added.) 

See, also, Jones v. Anderson, 189 S.W.2d 65 (Tex.Civ.App. 

1945, error ref.), Neal v. Sheppard,--20,9 S.W.2d 388 (Tex.Civ.App. 

1948, error ref.) and 20 Tex.Jur.2d 297, District Attorneys, Sec. 1. 

In view of the foregoing authorities, we therefore hold 

that you, as a criminal district attorney, paid entirely from State 

funds, fall within the purview of the term "district attorney" used 

in Article 6228a; accordingly, you are entitled to participate in 

the Employees Retirement System of Texas. 

We are further of the opinion that criminal district attorneys paid by a county are not entitled to participate in the Employees Retirement System of Texas. 

SUMMARY 

The Criminal District Attorney of Navarro 

County, who is paid entirely with State funds, 

is a "district attorney" as that term is used 

in Article 6228a, Vernon's Civil Statutes, and 

is therefore entitled to participate in the Employees Retirement System of Texas. 

The Criminal District Attorney of Navarro 

County, who receives no compensation from the 

County., is not entitled, pursuant to Article 

6228g, Vernon's Civil Statutes, to participate 

in the Texas County and District Retirement 

System. 

A criminal district attorney paid by a 

county is not entitled to in the 

Employees Retirement Syste 

At&nev General of Texas 

-5313- v - 
Hon. Jimmy Morris, page 5 (M-1087) 

Prepared by Austin C. Bray, Jr. 

Assistant Attorney General 

APPROVED: 

OPINION COMMITTEE 

Kerns Taylor, Chairman 

W. E. Allen, Co-Chairman 

John Grace 

Bob Lattimore 

Jim Swearingen 

Roger Tyler 

SAMUEL D. MCDANIEL 

Staff Legal Assistant 

ALFRED WALKER 

Executive Assistant 

NOLA WHITE 

First Assistant 

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