January 28, 1949 

Hon. ‘Robert~S. Calvert 

Comptroller of Public Accoun+' 

Austin,. Texas 

Opinion No. V-762 . 

Be: Eligibility of a County which comes 

within subsection 15(a) of IArticle 

39X%; in Janpary, 1949 to participatie in the appropriation.containea 

in'Ifemll;,H.B. 244, for the remar&: 

mainder of the current .biennium. 

:xou+:+q~~st.'for.an opinioni in part* reads: 

.." 

-.qAt.ibe.‘gxeEient,t~ there tie six co& 

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.+&y officers would. be compensated 

.on.~:'~l~~,-basi~-',~ginnisg'Jannary‘1;: 1949.: 

This oounty will~be eligible.ior the apportionmeqt under. th& provis~ions of &t&cle 39&2e, Section .15,.Sub&e&ian (-a) p&e 286 of Vernon's 

CivQ St?tuF;es+ 

. ~'~Whould this 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 

department make.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 that 
Hon. Robert S. Calvert - Page 2 (V-762) 

the counties now eligible for the apportionment from the $146,429 receive only 56% of 

the maximum amount due them have to be considered in making this transfer? Or would 

it be necessary for a supplemental appropriation to be made before this apportionment 

could be accomplished? 

With reSard to ~the above questions reference is made to your opinion Number O-6652, 

. questions Numbers 1 and 4 and the answers 

thereto." 

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

reads: 

n . . .~It shall be the duty of the Comptroller of Public Accounts to annually apportion 

to .a11 counties 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 ~participate in ,such apportionment shall 

receive'..for.the-benefit of its:.Offic'ers' Sal- 

:ary.Fund,.or funds its proportionate part of' 

the apjYopriation which shall be 'distributed. 

among then several'counties entitled to Darti; 

qipate therein on the basis 'of the'.per capita 

opulation of each county, according~to the 

st'precedinp Federal Census. . ." (Empha- 

.~.sis added).. 

.' .Sec.tion 15 of Article 39128 V;C.S.., in part, 

and &bsec,tion..(ti) thereof respectiveiy read as follows: 

.,., 

!'The.Commissioners' Court in counties 

,having a..population of less then twenty (20,- 

OOO)inhabitants., according'to the last preceding Federal Census eat the first regular 

~meetiag ,in January of:each calendar year, may 

pass an order .providing for compensation of 

all'county andiprecinct officers on a salary, 

.basis. The Commissioners1 Court 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 Shall pay 

to each of said District and County officers 

in money an annual salary in twelve (12) 
Hon. Robert S. Calvert - Page 3 (V-762) . . 

equal installments of not less than the 

total sum earned as compensation by said 

officer in his said official capacity for 

the fiscal year of 1935,and not more'then 

the maximum allowed such officer under 

laws existing August.24th, 1935. . ." 

(a). The oompensation of,a Criminal 

Distriot Attorney, or County Attorney who 

performs the duties of Mstrict Attorneys, 

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 proporticin to the total salary of such Criminal 

District Attorney, or County Attorney per& 

forming the duties of a District Attorney, 

together with the salary of his assistants, 

as all felony fees collected by such official auring the year or 1935 bear to the 

total fees collected by such official durix@ ~such year;"' 

_ '_ 

. 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'appropriations made 

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 ;ana clerks in felony 

cases; ana fees of oounty jtiages, 

county attorneys, .justices of 

peace,sheriffs and oonstables 

in exemining trials where indictments are returnad. $ 60,OOO.OO 
Hon. Robert S. Calvert - Page 4 (V-762) 

"10. 

nil. 

Apportionment to counties where 

county officers are paid salaries 

(per Chapter 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 vice versa, 

the Comptroller shall make adjustment in the appropriations by 

transferring the correot amount 

from appropriation made 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 counties where 

county officers are paid. salaries 

end where there is a criminal distriotattorney or county,attorney 

performing the. duties. of.district 

attorney (As per sub-section B, 

Section 13,and Section.15, sub7 

sectionA, Chapter 465, Acts 

Forty-fourth'Le&slature) 146,429.OO" 

.Item 9 is primarily en appropriation to pay 

the OffiC8TS named therein.-of counties in which 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 counties wherein all county officers are compensatid on a salary basis. It. was made by the Legislature 

in obedience to the provisions of -Section 6(a) of Article 3912e. However, since the Commissioners~ Court of 

any county having 'a population of less than 20,000 has 

been authorized by Section 15 to d-mine at its first 

~regular meeting in January of each calendar yearwhether 

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 appropriation to be 

apportioned among the counties entitled to participate 

therein "on the basis of the per capita population of 

each county accordiny, to the last preceding Federal Census." 
Hon. Robert S. Calvert - Page 5 (V-762) 

The appropriation made by Item 11 is to pay 

all those counties~which come within 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 accordance with the formula 

prescribed therein. In other words, 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'conferred upon 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 

accordance with the provisions of Section 6(a) and subsection (b), Seation 15, of Article 3%.2e, and have found ~, 

that each appropriation'maae prior 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 

note so 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 in which the county officers were 

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.,000 inhabitants in which the 

county officers have heretofore been compensated on a fee 

basis and which has a criminal district attorney or a county attorney performing the duties of a district attorney, 

chawes its method of compensating its county officers 
Hon. Robert S; C&i&t .-‘.Page 6 .iV;76?) 

‘is’ &tltI* tb. receLve Its prp~ort&nats~pert 

a~r&.iriatloii’~ln mxim 11. (&ate ~5oai .Lisg., Hif 

‘. 

.. . . . _. 

: . . . ., 1’ ~‘I~ .‘, : ‘.