THE ATTORNEY 

OIFTESAS 

AUSTIN. TEXAS 

June 11, 1949. 

GENERAL ! 

Hon. Robert S. Calvert 

Comptroller of Public Accounts 

Austin, Texas Opinion No. V-843. 

Re: The ellglblllty of counties 

to receive the statutory 

State apportionment toward 

the compensation of a "county 

attorney performing the duties 

of district attorney" when a 

judicial district is created 

without providing a district 

attorney. 

Dear Sir: 

Your request for an opinion is as follows: 

'1 "Senate Bill No. 448 passed by the 51st 

Legislature abolishes the office of District 

Attorney in the 7th District and prescribes, 

1 and the County Attorney of each County 

c~m~okng said district shall represent the 

State of Texas in all matters wherein the 

State of Texas Is a party, In his respective 

County, and shall receive such fees and compens&tlon for his services as is provlded,by 

the General Laws of the State of Texas.' 

,"Senate Bill No. 449 passed by the 51st 

Legislature creates the 115th Judicial District to be composed of TJpshur and Wood Counties, which counties were detached from the 

$ Judicial District (composed of Smith Coun- 

. Senate Bill No. 449 neither provides 

fora District Attorney nor for the County 

Attorney to perform the duties of a District 

Attorney in his respective county. 

"This Department requests the answers as 

to whether the County Attorney is to perform 

the duties of the District Attorney in the 

counties of Smith, Upshur and Wood Counties 
Hon. Robert S. Calvert, page 2 (V-843) 

on and subsequent to May 10, 1949, thus maklng those counties eligible for the apporL tlonment under Article 3912e, Section 13, 

Subsection (b). If these countles are 

eligible for the apportionment would It be 

proper to pay them out of Item 11, $146,429.- 

00, appropri'ated by H. B. No. 244, page 645, 

General and Special Laws of the 50th Leglslature, for the period May 10, 1949, to August 31, 1949, Inclusive?" 

A county attorney 1s required to perform the 

duties of dlstrlct attorney in a county where there is 

no district attorney or resident criminal district attorney. 

Texas. 

Article V, Section 21, of the Constitution of 

In such Instances the Comptroller Is re uired 

by Subsection '(b) of~Sectlon 13 and Subsection 4 a) of 

Section 15 of Article 3912e. V.C.S., to make an apportionment to each county In accordance with the formula 

prescribed therein. Item 11 of the appropriations made 

to the Comptroller for the current fiscal 

244, Acts 50th Leg., 1947, ch. 338, p. 645 

ear (H. B. 

3 iS t0 P&Y 

all those counties which come within the classlflcatlons 

of Subsection (b) of Section 13 and Subsection 

A 

a) of 

Section 15. Attorney General's Opinion No. V-7 2. 

Subsection (b) of Section 13 of Article 3912e, 

as amended by S. B. 6, Acts 51st Legislature, (effective March 25, 1949) provides: 

"The compensation of a criminal district 

attorney or county attorney performing the 

duties of district attorney, together with 

the compensation of his assistants, shall 

be paid out of the County Officers' Salary 

Fund, but the State shall pay into such fund 

each year an amount equal to a sum which 

bears the same proportion td the total salary 

of such criminal district attorney or county 

attorney performing the duties of a district 

attorney, together with the salary of his 

assistants, as all felony fees collected by 

such offlclal during the year of 1935 bear 

to the total fees collected by such official 

during such year. 

"In all counties having a county attorney or a criminal district attorney performing the duties of district attorney, and in 
Hon. Robert S. Calvert, page 3 (v-843) 

which counties there were no felony fees collected from the State in 1935 by the office 

of county attorney or criminal district attorney In such county, the State shall pay Into 

the County Officers' Salary Fund each year an 

amount e ual to forty-eight and three-fourths 

(48-3/4$7 percent of the total salary paid 

each year to such county attorney or criminal 

district attorney, together with the salary 

of his assistants." 

Senate Bill 448, Acts of the slat Legislature 

(effective May 10, 1949) abolished the office of Dlstrlct Attorney In the 7th Judicial District of Texas 

(then composed of the counties of Smith, Wood, and 

Upshur) and provided that the county attorney In each 

\of those counties shall perform the duties of District 

Attorney. S. B. 449, Acts of the 51st Legislature 

(effective May 12, 1949) then divorced Upshur and Wood 

Counties from the 7th Judicial District and created the 

115th Judicial District to be composed of said counties. 

S. B. 449 did not create an office of District Attorney 

for the newly created District and thereby required the 

County Attorneys In Upshur and Wood Counties to perform 

the duties of District Attorney In the respective counties. Article V, Section 21, of the Constitution of 

Texas. 

In view of the foregoing, Smith, Upshur, and 

Wood Counties now come within the classification of 

Subsection (b) of Section 13 of Article 3912e. The 

remaining question, therefore, Is whether an approprlatlon passed by the 50th Legislature can be used to lnelude counties that come within the classification set 

out In the appropriation by virtue of an Act passed 

by the slat Legislature without reference to such appropriation or the passage of additional approprlatlons 

for such counties. 

\ Item 11 (Acts of 50th Legislature, H..B. 244, 

p. 645) provides: 

"Apportionment to counties where county 

officers are paid salaries and where there 

Is a criminal district attorney or county attorney performing the duties of district attorney. (As per subsection b, Section 13 and 

Section 15, Subsection A, Chapter 465, Acts, 

44th Legislature) . . . . $146,429.00.” 
Ron. Robert S. Calvert, page 4 (v-843) 

At the time of the enactment of the approprlatlon of 

Counties ^ _ 

the 50th Legislature, Smith, Upshur, and Wood 

were not eligible to an apportionment of the 

sun68 appropriated In Item 11 for said counties had a 

district attorney rather than a county attorney or crlmlnal district attorney performing the duties of district 

attorney In the respective counties. Smith, Upshur, and 

Wood Counties became eligible by virtue of the passage 

\of S. B. 448 of the 51st Legislature and are entitled to 

an apportionment according to the formula set out In Subsection (b) of Section 13 of Article 3912e, as amended 

by S. B. 6 of the 51st Legislature, provided an approprlation Is available to pay the same. 

The 50th Legislature In making the approprlatlon In Item 11 knew which counties In this State were 

eligible to an apportionment under Subsection (b) of 

Section 13 and Subsection (a) of Section 15 of Article 

3912e and could therefore reasonably anticipate the 

amount of money needed to be appropriated for the Comptroller to carry out the apportionment based on the 

formula set out In those sections. The 50th Legisle 

ture did not, It Is believed, anticipate actions of a 

subsequent Legislature. If the 50th Legislature intended to Include in the appropriation of Item 11 counties 

which the 51st Legislature would make eligible, there 

would be no way for the 50th Legislature to reasonably 

contemplate what money would be needed by the Comptroller 

to make the apportionment. Therefore, It Is our opinion 

that It was not Intended to Include any county In Item 11 

which would be made eligible by an act of a subsequent 

.Leglslature. 

You are therefore advised that Smith, Upshur, 

and Wood Countles are not Included In Item 11 of Ii. B. 

244, Acts of the 50th Leg.; 1947, Chapter 338, page 645. 

Such counties are, however, eligible to an apportlonment under Subsection (b) of Section 13 of Article 3912e 

as amended by S. B. 6 of the 51st Legislature by virtue 

of S. B. 448 and S. B. 449 of the 51st Legislature. 

Payments under such apportionment cannot be made by the 

Comptroller until an appropriation Is made to pay the 

same. 

SUMMARY 

Smith, Upshur, and Wood Counties are el- 

, iglble to apportionment under Subsection (b) 

of Section 13 of Article 3912e as amended by 
Hon. Robert S. Calvert, page 5 (V-843) 

\ S. B. 6 of the 51st Legislature, and may receive payment under an apportionment when an 

appropriation Is made to pay the same. The 

Comptroller of Public Accounts, however, Is 

not authorized to make an apportionment to 

those Counties out of Item 11 of H. B. 244, 

Acts of the 50th Leg., 1947, Chapter 338, 

page 645. 

Yours very truly, 

ATTORNEY GENERAL OF TEXAS 

JR:bh 

John Reeves 

Assistant 

APPROVED 

+2.-- 

FIRST ASSISTANT 

ATTORNEY'GENERAL