### 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 ofNavarro County may become amember of the State Retirement S,ystem,pursuant to Article 6228a,Vernon's Civil Statutes, or theDistrict and County Retirement System, pursuant toArticle 6228g,Vernon's Civil Statutes.
Your recent letter requesting the opinion of this office concerning the referenced matter states, inpart, as follows:

"The Criminal District Attorney ofNavarro County ispaid entire,lyfrom State funds. Art. 326k-63. Navarro County does not supplement the salary. "Whichretirement system may the Criminal District Attorney ofNavarro County join--the 'State' (art. 6228a) or the 'District and County' (art.6228g)?" Section 3(B)(1)ofArticle 6228a,Vernon's Civil Statutes, which is theAct establishing the Employees Retirement System of Texas, provides as follows:

"Themembership 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 themembers 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

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

County, of the State of Texas other than those expressed eligible asprovided herein." (Emphasis added.) The Texas County and District Retirement System is authorized by Section 62(c) ofArticle XVI of the Constitution of Texas. Pursuant to that constitutional provision, Article 6228g, Vernon's Civil Statutes, was enacted and sets forth the requisites andprocedures for the County and District Retirement System. Section 2(6) ofArticle 6228g defines "employee" as follows:

"'Employee' means any person who is certified by a subdivision asbeing 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 orposition normally requires actual performance of duty during not .lessthan nine hundred (900)hours ayear, 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 theperformance 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 inwhich he serves, and the person with the approval of the respective subdivision shall be entitled toparticipate in the System to the extent of any additional compensation received from the participating subdivisions. The term 'employee' does not include anyperson as to any period of service forwhich hewould be eligible tobe included in or entitled to receive credit in s . .the Employees Retirement System of Texas.
. . ." (Emphasis added.)
Your office was established byArticle 326k-63,Vernon's Civil Statutes. Section 7of that Article provides as follows:

"The~criminaldistrict attorney shall be compensated forhis services by the state in suchmanner and in such amount asmay be fixed by the general law relating to the salary tobe 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)

Byyour letter, you have advised us that, atpresent, your salary ispaid solely out of State funds.

It is evident thatyou are not eligible formembership in the County and District Retirement System, inasmuch asyou do not receive any compensation fromNavarro County. See the underscored provisions of Section 2(6) ofArticle 6228g, supra.

Thus, the question remains as towhether you are eligible tomparticipate in the Employees Retirement System of Texas. Section 3(B)(l) ofArticle 6228a, quoted supra, in setting forth those persons qualified formembership 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 Statewere included asbeing eligible formembership in the Employees Retirement System by the amendment inActs 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, fallwithin the term "district attorneys" used inArticle 6228g.

The term "criminal district attorney" has heretofore been defined by the Supreme Court of Texas. InHill County~v. Sheppard, 142Tex. 358, 178 S.W.Zd 261 (1944],that court stated as follows:

"Itwill be noted that the Constitution [ArticleV, Section 211 refers to a county attorney, adistrict attorney, and a criminal district attorney. What ismeant by a 'criminal district attorney' asused in the Constitution, andwhat 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 thatwhen 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 orkind of district attorneys, and that a criminal district attorney is adistrict attorney within the,meaning of the Constitution. -5312,.Hon. Jimmy Morris, page 4 (M-1087)

"Theoffice of District Attorney, including that of criminal district attorney, is a constitutional office, the duties and compensation ofwhich areprovided for inArticle V, Section 21, of the Constitution above quoted.. II 262-63. 142Tex. 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 20Tex.Jur.2d 297, District Attorneys, Sec. 1.

Inview of the foregoing authorities, we therefore hold thatyou, as a criminal district attorney, paid entirely from State funds, fallwithin the purview of the term "district attorney" used inArticle 6228a; accordingly, you are entitled toparticipate in the Employees Retirement System of Texas.

We are further of the opinion that criminal district attorneys paid by a county are not entitled toparticipate in the Employees Retirement System of Texas. SUMMARY The Criminal District Attorney ofNavarro County, who ispaid entirely with State funds, is a "district attorney" as that term is used inArticle 6228a,Vernon's Civil Statutes, and is therefore entitled toparticipate in the Employees Retirement System of Texas. The Criminal District Attorney ofNavarro County, who receives no compensation from the County.,isnot entitled, pursuant toArticle 6228g,Vernon's Civil Statutes, toparticipate in the Texas County and District Retirement System.
A criminal district attorney paid by a county isnot entitled to in the Employees Retirement Syste

At&nev General of Texas -5313- v -Hon. Jimmy Morris, page 5 (M-1087)

Prepared byAustin 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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