### THE ATTORNEY
OIFTESAS

AUSTIN. TEXAS

June 11, 1949.



### GENERAL !

Hon. Robert S. Calvert Comptroller of PublicAccounts Austin, Texas Opinion No.

### V-843.

Re: The ellglbllltyof counties to receive the statutory State apportionmenttoward the compensationof a "county attorneyperforming the duties of districtattorney"when a judicialdistrict is created without providing a district attorney.

Dear Sir:

Your request for an opinion is as follows:

'1 "SenateBill 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 matterswherein 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.'

,"SenateBill No. 449 passedby the 51st Legislature creates the 115th JudicialDistrict to be composed of TJpshur andWood Counties, which countieswere detached from the $ Judicial District (composedof 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 andWood CountiesHon. Robert S. Calvert, page 2 (V-843)

on and subsequentto May 10, 1949, thus maklng those counties eligible for the apporL tlonmentunder Article 3912e, Section 13, Subsection (b). If these countles are eligible for the apportionmentwould It be proper to pay them out of Item 11, $146,429.- 00, appropri'ated

by H. B. No. 244, page 645, General and SpecialLaws 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 countywhere there is
no district attorney or resident criminal districtattorney. Texas. ArticleV, Section 21, of the Constitutionof

In such Instances the Comptroller Is re uired by Subsection '(b)of~Sectlon 13 and Subsection 4a) of Section 15 of Article 3912e.V.C.S., to make an apportionment to each county In accordancewith the formula prescribed therein. Item 11 of the appropriationsmade 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 countieswhich come within the classlflcatlons of Subsection (b)of Section 13 and SubsectionA a) of Section 15. Attorney General's OpinionNo. V-7 2.

Subsection (b) of Section 13 of Article 3912e,
as amended by S. B. 6, Acts 51st Legislature, (effectiveMarch 25, 1949) provides:

"The compensation of a criminal district attorney or county attorney performing the duties of district attorney, togetherwith 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 criminaldistrict attorney or county attorney performing the duties of a district attorney, togetherwith the salary of his assistants, as all felony fees collectedby such offlclal during the year of 1935 bear to the total fees collected by such official during such year.

"In all countieshaving a county attorney or a criminal district attorney performing the duties of district attorney, and inHon.Robert S. Calvert,page 

### 3 (v-843)

which counties therewere no felony fees collected from the State in 1935by the office of county attorney or criminaldistrict attorney In such county, the State shallpay Into the County Officers' Salary Fund eachyear an amount e ual to forty-eightand three-fourths 

### (48-3/4$7percent of the total salarypaid 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 (effectiveMay 10, 1949) abolished the office of DlstrlctAttorney In the 7th JudicialDistrict of Texas (thencomposed of the counties of Smith,Wood, and Upshur) and provided that the county attorney In each \of those counties shallperform the duties of District Attorney. S. B. 449, Acts of the 51st Legislature (effectiveMay 12, 1949) then divorcedUpshur 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 DistrictAttorney for the newly createdDistrict and thereby required the CountyAttorneys In Upshur and Wood Counties to perform the duties of District Attorney In the respective counties. ArticleV, Section 21, of the Constitutionof Texas.

In view of the foregoing, Smith, Upshur, and Wood Counties now comewithin the classificationof 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 appropriationby virtue of an Act passed by the slat Legislaturewithout reference to such appropriation or the passage of additional approprlatlons for such counties.
\ Item 11 (Actsof 50th Legislature, H..B. 244, p. 

### 645)provides:

"Apportionmentto counties where county officers are paid salaries and where there Is a criminal district attorney or county attorney performing the duties of district attorney. (Asper 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 enactmentof the approprlatlon of Counties ^

_ the 50th Legislature, Smith,Upshur, andWood

were not eligible to an apportionmentof the sun68appropriatedIn Item 11 for said countieshad a districtattorneyrather than a county attorney or crlmlnaldistrict attorneyperforming the duties of district attorneyIn the respective counties. Smith, Upshur, and Wood Countiesbecame eligibleby virtue of the passage \of S. B. 448 of the 51st Legislatureand are entitledto
an apportionmentaccording 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 Statewere eligible to an apportionmentunder Subsection (b)of Section 13 and Subsection (a) of Section 15 ofArticle 3912e and could thereforereasonably anticipatethe amountof money needed to be appropriated for the Comptrollerto carry out the apportionmentbased on the formula set out In those sections. The 50th Legisle ture did not, It Is believed, anticipate actions of a subsequentLegislature. If the 50th Legislature intended to Include in the appropriation of Item 11 counties which the 51st Legislaturewould make eligible, there would be no way for the 50th Legislature to reasonably contemplatewhat moneywould be needed by the Comptroller tomake 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. Paymentsunder such apportionment cannot be made by the Comptrolleruntil an appropriation Is made to pay the
same.

SUMMARY

Smith, Upshur, and Wood Counties are el-

, iglble to apportionmentunder Subsection (b) of Section 13 of Article 3912e as amended byHon.Robert S. Calvert, page 

### 5 (V-843)

\ S. B. 

### 6 of the 51st Legislature, andmay receive payment under an apportionmentwhen an appropriation Is made to pay the same. The Comptroller of PublicAccounts,however, Is not authorized to make an apportionmentto 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 JohnReeves Assistant

APPROVED

+2.--

FIRSTASSISTANT ATTORNEY'GENERAL