January 28, 1949

Hon. ‘Robert~S.Calvert Comptroller of Public Accoun+' Austin,.

Texas OpinionNo. V-762
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Be: Eligibility of a County which comes within subsection 15(a) of IArticle 39X%; in Janpary, 1949 to participatiein the appropriation.containea in'Ifemll;,H.B. 244, for the remar&: mainder of the current .biennium.

:xou+:+q~~st.'for.anopinioni in part* reads: .." -.qAt.ibe.‘gxeEient,t~ there tie sixco& t$e%in-$hi@~&ate~under 20,000 in population whiob-.haM :ae'

Coirnty

Attorney performing th8 ;auty-~f!a:;Dis~riot.Attorriey ena the ctipensat$on ti all of the~.oount$ ofYicWs in these counties .ls:tKeir rees of office.

_. f. "This aepartment has beQn placed'on notice by the officials of,one of these counties ,-th&-the..c.+&yofficerswould.be compensated .on.~:'~l~~,-basi~-',~ginnisg'Jannary‘1;: 1949.: This oountywill~be eligible.ior the apportionmeqt under.th& provis~ionsof &t&cle 39&2e, Section .15,.Sub&e&ian (-a) p&e 286 of Vernon's CivQ St?tuF;es+

. ~'~Whouldthis departm&it'm&ke this apporti'onGn%-,?rom.the emoutlt

appropri,ateil

by-House. Bill~Nudber W+;:Chapter 338, Se&ion 11;$146,-, 429,~page.645,:,

General and Speci+Laws of the 50th.Legislature,, for'the period January 1, 1949 to August Zl.,1949,'inclusiv~? Or.should this departmentmake.the apportionment,by a,%ransfer from.the appropriation in Seotion 9, $60,000,~0f the above bill to the apportionment appropriation for this apportionment in Section 11, if so, would the amount transferred be the maximum amount due such couhty, or would the fact thatHon. Robert S. Calvert - Page 2 (V-762)

the countiesnow eligible for the apportionment from the $146,429 receive only 56% of themaximum amount due themhave to be considered in making this transfer? Or would it be necessary for a supplementalappropriation to be made before this apportionment could be accomplished?

With reSard to ~theabove questionsreference ismade to your opinionNumber O-6652,

. questionsNumbers 1 and 4 and the answers thereto."

Section 6(a) of Article 39lZ.e, V.C.S., in part, reads:

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. . .~It shall be the duty of the Comptroller of Public Accounts to annually apportion to .a11counties in which the county officers
are to be compensated on the basis of a salerg any monies, appropriated for said year for such'apportionment;each county entitled to ~participatein ,suchapportionmentshall receive'..for.the-benefit of its:.Offic'ers'

Sal- :ary.Fund,.or

funds its proportionatepart of' the apjYopriationwhich shallbe 'distributed. among thenseveral'countiesentitled toDarti; qipate therein on the basis 'ofthe'.per capita opulation of each county, according~tothe (Empha- st'precedinpFederal Census.

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### .~.sis added)..

.' .Sec.tion

15 of Article 39128 V;C.S..,in part, and &bsec,tion..(ti) thereof respectiveiyread as follows:

.,., !'The.Commissioners' Court in counties ,havinga..population of less then twenty (20,- OOO)inhabitants.,

according'to the lastpreceding Federal Censuseatthe first regular ~meetiag,in

January of:each calendaryear, may pass an order .providingfor compensation of all'county andiprecinct officers on a salary, .basis. The Commissioners1Court in each.of such counties.1~hereby authorized,and it shall be its duty, to fix the salaries of Criminal District Attorneys. In'the event such Court passes such'order they Shallpay to each of said District and County officers in money an annual salary in twelve (12)Hon. Robert S. Calvert - Page 3 (V-762)

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equal installmentsof not less than the total sum earned as compensation by said officer in his said official capacity for the fiscal year of 1935,andnot more'then the maximum allowed such officer under laws existingAugust.24th, 1935.

. ."
(a). The oompensation of,a Criminal DistriotAttorney, or County Attorney who performs the duties of Mstrict Attorneys, 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 sumwhich bears the same proporticinto the total salary of such Criminal District Attorney, or County Attorney per& forming the duties of a District Attorney, togetherwith the salary of his assistants,
as all felony fees collected by such official auring theyear or 1935 bear to the total fees collectedby such official durix@ ~suchyear;"'

_'_

. The~provisions of subsection (a); supra, are also contained inysubsection (b).,.section 13, of Article 39128, v;c.s., whioh.is applicable to allthose countias h&ring a population of 20,000 or more and lessthen 190,- 000 &Cording to the last preceding Federal Census. The county officers of all such aounties,&e compensated on a salary;basisr (Sec. 61, Art. XVI, Con&.),

Items 9, lO.and ll of the'appropriationsmade to the Comptroller%-Department for the current fiscal year (Acts 50th Leg read as 

### r0ilavs: ., Ii.3. 244, pd 645) respectively

"9. .Fees 

### ana costs or sheriffs, attorneys ;anaclerks in felony cases; ana fees of oounty jtiages, county attorneys, .justicesof peace,sheriffs and oonstables in exemining trials where indictments are returnad. $ 60,OOO.OOHon. Robert S. Calvert - Page 4 (V-762)

"10.

nil. Apportionment to countieswhere county officers are paid salaries (perChapter 465, Section 6A, Second Called Session,Acts Fortyfourth Legislature). Should,any county, by electipn of the Commissioners Court, change from salary to fee basis or viceversa, the Comptroller shallmake adjustment in the appropriationsby transferring the correot amount from appropriationmade for fees and costs of sheriff and other county officials to appropriation to pay counties on a per capita basis or vice versa as the case may be 514,ooo.oo
Apportionment to countieswhere county officers are 

### paid. salaries end where there is a criminaldistriotattorney or county,attorney performing the.duties. of.district attorney (Asper sub-sectionB, Section 13,and Section.15, sub7 sectionA, Chapter 465, Acts Forty-fourth'Le&slature) 146,429.OO"

.Item 9 is primarily en appropriationto pay the 

### OffiC8TS named therein.-of counties inwhich all county officers ar.e compensated on a~fee basis for particular services rendered the State asprovided by the statutes.

Item'10 is an appropriation for the benefit of c3.l countieswherein all county officers are compensatid on a salary basis. It. was made by the Legislature in obedience to the provisions of -Section6(a) of Article 3912e. However, since the Commissioners~Court of any countyhaving 'apopulation of less than 20,000has been authorized by Section 15 to d-mine at its first ~regular

meeting in January of each calendaryearwhether all county officers shall be for that year ccmpensated
on a fee or salary basis, the Legislature has provided in Item10 for the Comptroller to transfer from Item 9 to Item 10 or vice versa in the event such changes are made. Section 6(a) requires this appropriationto be apportionedamong the counties entitled to participate therein "on the basis of the per capitapopulation of each county accordiny,to the last precedingFederal Census."Hon. Robert S. Calvert - Page 5 (V-762)

The appropriationmade by Item 11 is to pay all those counties~which comewithin the classifications described in subsection (b) of Section 13 and subsection (a) of Section 15, and must be apportioned by the Comptroller to each county in accordancewith the formula prescribed therein. In otherwords, any county, regardless of its population, is eligible to.participate in the distribution of this appropriation,provided its county officers are compensated on a salary basis and which has a criminal district attorney or a county attorney performing the duties of a district attorney. The purpose of this appropriation is wholly unrelated to the purposes of the appropriations contained in Items 9 and 10. The authority'conferredupon the Comptroller to make adjustment in these two appropriations cannot be. extended by construction to include the appropriation in Item 11.

We have examined all appropriations heretofore. made by the Legislature for distribution to counties in accordancewith the provisions of Section 6(a) and subsection (b), Seation 15, of Article 3%.2e, and have found ~, that each appropriation'maaeprior to the appropriation made by the 50th Legislature limited the number of counties eligible to participate in each such appropriation to thirty-three. The current appropriation (Item 11) is noteso limited.

You have informed us that the 50th Legislature discovered that there were six additional counties having a population of less than 20,000 inhabitants according to the last census inwhich the county officerswere compensated on a fee basis and haviw either a criminal district attorney or a county attorney performing the duties of.a district attorney. Therefore, it appears the Legislature realized the probability of one or more of these counties becoming eligible during the current biennium to participate in the distribution of this appropriation and for that reason,did not limit the appropriation to any number of counties, thereby enabling such county
or counties to participate therein.

In view of the foregoing,.it is our opinion that when a county of less than 20.,000inhabitants in which the county officers have heretofore been compensated on a fee basis andwhich has a criminal district attorney or a county attorney performing the duties of a district attorney, chawes its method of compensating its county officersHon. Robert S; C&i&t .-‘.Page 6 .iV;76?)

‘is’ &tltI* tb. receLve Its prp~ort&nats~pert a~r&.iriatloii’~ln mxim11. (&ate ~5oai .Lisg., Hif



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