Honorable C. H. Cavnem stat.5 Auditor Austin,Texas

Dear Sir: opinion No. O-6676

Re: StateApportionments to counties operating

under officers'

Salary Fund and where there is a Criminal District

Attorneyor $ountyAttorney performing

the dutiiee

of DistrictAttorney.

We are in receiptof your requestfor an opinionon the abbve matter, said request

being a6 follows:

"In connection

with an auditwe are now making of the JudiciarySectionof the State Comptroller's Department

for the three years ended.

August 31, 1944,we find it necessary to request an opinionfrom your Department a8 to the followingapportionment

appropriations:
"Apportionments

to counties

where county officers are paid salaries

and where there is a Criminal District

Attorneyor CountyAttorney

performing

the duties of District Attorney (for 33 countiesin 1940, per Sub-section B, Section13, Chapter465, Acts Forty-fourth

Legislature).

"YearEnded August 31st:

"1942 $146,42y.O0 1943 146,429.00 1944 146,429.00

"Article

3912e, Section13B, reads as follows:

"The compensation

of a criminal

district

attorneyor county attorney

performing

the duties of dietrict attorney,

together with the compensation of his assistants, shallbe paid out of the County Officers' SalaryFund, but the State shallpay into such fund each year .!+n amount equal to a sum which bears the
same proportion

to the total salaryof such criminal district attorney

or countyattorney

performing

the duties of a district attorney,

together

with the salary of his assistants, as allHoti. C. H. Caress, page f (0-6676)

felay fees sollect.rd by such official

duringthe year 1935 bear to the total fees cc;i.lected by such official

during such year.'

"We qucte, I.:

part, from Attorney General's

Opinionaddressed tcj the CrLaptroile.r

cf Pub1j.c

Accouds under date of September 15, 1936, relative

to t,'ie: ix1usl.o~

cd stenographers,

bookkeepers

and invest!.gators

a 'assistants':
"*Recel.pt

is her+y ackzodedged op your letterof Sept&,er 15, 1936 whereinyou refer to subsection (b) of Section13 of Sena+:e Bill NG. 5, Acts of thz SecondCall& Session of the FortyfourthLegislature

and wish to be advised as to whetheror not StenO@apheI'S,

bookkeepers,

and investigators

hould be considered as assistads unaer the terms Gf this Section.

. . . . . . While stenographers, bookkeepers,

and investigators

are assistants In a limlt~d sense 0," the word In that they assist in the conduct of the duties of ihe office, we are of the opinion that the Legislature

did not intendto includesuch employees $n the terms of Section13 (b), supra. It is the opinion afthe writer that the Legislature

interidea

to include

only assistant

+listrict

or county attorneys

as that word is commonly accepted,

that is, practicing attorneys

who in someway assist in the prosecution of cases~in tte respective

col;z%ies.*

"We quote IL part, from your opinlda@-essed to the Camptrollerucaer date cf V&r& 9, 1936:

"'When will the Comptroller be required

to pay into the CountyOfficers'

SalaryFunathe moneysprovidedfor under Subsection

B of Section 131

"'We are of the opinion that the Comp%zoll.er's Department

. should pay into the Officers' Salary Fu& of the respective counties

the amountprovided for in Section 13 (b) at the first .of each year, that is, on January First.' ~

"we quote, in part, from your opinion NO. o-6226, addressed to the Comptroller:

"'You statethat the maximumamountthat couldbe paid the Criminal

District

Attorneyand his aasietants by statuteis $'j2,150.00

per annum,

but the actualexpenditures by Bexar County to the Criminal

District

Attorney

ana his assistants is $45,500.00 forthisyear...........................
11 I

. . . . . . it is our opinion that in makingyour allncation of the appropriation as provided

by said,~statute,

you should make your calculations of the distribut$ons on ~the amountactually paid by the countyto the,Criminal District.

Attorney

ana his~aesistants

and not on the maximumamount !&at the,law~ au$horizes.'. .

Hon. C. H. Cavness, page 3 (o-6676)

"In auditing

the recordsof the Comptroller's Department pertaining

to this salaryapportionment for the three-year

perlod endedAugust jlet, 1944,we find the following altuation:

"1. At the beginning of each calendar

year the Comptroller prepares

a schedule

of ealaryapportionment for each and all participating

counties. The lralaries used by the Comptroller in this schedule

are those furnished by each county

by letter from such county

purporting

to be the salaries

which will be paid for the ensuingcalendar year to Criminal

District

Attorneys

and their assistants.
"Thie, of course,

means that the Comptroller is using what might be considered estimated

salaries

and which in most cases represent

maximum salaries

ratherthan the actual salaries paid
as outlinedin AttorneyGeneral's Opinion

No. o-6226. Obviously, the Comptroller

couldnot know what salaries had been paid until the end of the calendar year based upon each county's payroll.

“2. During this three-year period some counties reported in their lettersto the Comptroller for inclusion

of salaryapportionment

calculations,

salaries

for abetractors,

investigators, clerksand stenographers, all of which salaries were used by the Comptroller

in computing

salaryapportionment to the respective counties.

"3. Some counties included

the names of 'Assistants' who
were not shown in the Texas Legal Directory and/or the records of the SupremeCourt of Texas as being licensed and practicing attorneys,

which fact was discovered by us in checking

the names submitted

to the Comptroller

back to the Legal Directories, etc. In one instance

we found that a county included the name of an attorney

who had not paid his Bar Association dues since 1939.

"4. In checking

the names and salariesshown each year as reported

by the respective

counties

to the Comptroller for inclusionin salaries apportionment

o the StateAuditor's Forms

**NO.** 383 and 383a, which forms report the fees received and the annual salary

paid the County Officers and employees,

we found that in many instances the salary listed in such letters to the Comptroller

by the respective

counties

exceeded

the actual salaries paid such County's officers

and employees

as reflected

in ~0rm.s NO. 383 ana 383a,

"We also found that numerouscounties had not furnished Forms No. 383 and 383a to the StateAuditor each year as required by Statute,so in order to obtainthe necessary data for audit purposes, we wrote each county which has participated in State Salary Apportionment

requesting

that they furnish us with a list of all salaries paid attorneye

eligibleHon. C. H. Cavneae, page 4 (O-6676)

for participati.on

in th4.6

apportl.onment

for the calendar

years ended Decemberlat, 194.1, 1942, 1943 and l&4.

“In checking

the replies

to these confirmation letternto thoae aubmitted.

by the counties

to the Comptroller, we found the 6am.e

situation,

to e:xi.st

- t.he letters

ured by the Comptroller reflected

ealerfea

whi.c’h were In,

excess of the amountaactuallypaid.

"5. In checking

the salaries

submitted.

by the respective counties

to the governing

Statutes

, it appeare

to UB that aome countfee

have included

ealariea

for poal,ttona

which are not eligible for participatl,on. in. the apporti,onment

and in some inetancea the salariessubmf.tted were in excess of the amountafret forth in the Statutee.

“In order to arrive at a definite procedure

to be followed by the Comptroller in compu.ting

State Salary

Apporti,onment

in the future and aleo to enableus to complete our audit for the three-year

period endedAugust jlet;, I$&, we are attaching herewith

a echedule

prepared

by ue frox ,the

letters

received from the respective countiee

whhl.ch wan the basis for salary apportionment

a8 used by the Comptroller for the three-year period under audit. This schedule shcws the names,positions and aalariee,

by countfes,

by years for t,he

three years ended August 31at, 1942, 1943 and 194,&.

“It will be eeen that, J.n thl,s sched~.:.e

we have footnoted (by letter referencee) cowerin.@;

certal,n

‘LcllLq~ties

whf,cb. haave includedsalaries

w:hich we do not believeare el!.gi.ble under the existing

Statutes

e
“T:his schedule

provtdes

add!.tl,oeal.

columns ‘Co

be filled in by you a8 fol.lows:

“1. On t.his

mdm3ul.e

please insertthe Law references for each poaitio:n

in each cou&y and advi,se whether'aqy

of such laws are unconstitut1,onal as tc partZ.c%.pation in State SalaryApportionment D

"2. We ‘alsoask th& you pl.ea~e fi1.J :fn the remai;nio.g three columnsin this schedu.ie to chow the maxi.mum salary allowed

by law for each of the positions for each courty eligiblefor parti.cipati.on in t,h,Li

eslaryapportLonmect.

"3s The salaryapportionment appropriati,ons

for t,he three years under reviewrefer to t’hirhy-three (33) countiea, whereas the attachedschedule coveraonly thirty-one (31) counties

receiving

such apportbonment

as computed

by the Comptroller. Shou.ld two more counti.ea

partl,cipate

in. .

Hon. C. H. Cavness, page 5 (o-6676)

this apportionment? If so, please furnish the names of the counties, the applicable laws and the respective salaries

to be included for such countlee.

"4. What ie the effect of the SpecialFederalCensus in Jefferson

County on that county'8 apportionment

- that Special Census increased

the population

from 145,329in 1940 to 191,942
as of June 15th, 1943, the date of said Special FederalCensue.

“5. Based upon your Opinion No. o-6226 which is to the effect that calculations of the distributions should be computed
on the amount actually paid by the countyto the CriminalDistrict Attorneyand his Assistants rather than on the maximum amount the law authorizes, it appearsto us that the Comptroller would have to wait until the end of each calendar year before he could calculate

salaryapportionment due the respective counties. Are we correctin assuming that this is the methodwhich should be used, the salarydata perhaps furnished the Comptroller

at the end of each year through certified reportsfurnished

by the County Auditorsof the respective counties?

“6. Sincewe found that some counties have been over-paid salaryapportionment (which of course

means that other counties have been under-paid) over the period of the three years under audit, can such errorsbe adjustedfrom any salaryapportionment appropriation

balanceand/or from future salaryapportionment appropriations,

and for what period of time? Would such adjustments be retroactive to January lst, 1936, the effective date of the State Salary

Apportionment

laws?"

We will consider

the apportionments to the named officials of the variouscountiesin the order submitted by you and cite the statutes that authorized same, a8 well as to call attention to any errorsthat may have been made in making said apportionments.If desired, you can then place such matters into the schedulesubmitted with your request, which is returned

herewith.

It will be necessary for us to refer to the various subdivisions of the statutes

governing

these matters

but, insteadof referring to each of the subdivisions,

we will give the articleand number thereof followed by a period and the number of the subdivision.All salaries will be considered
on an annualbasis without being so specified.

It may also be necessary for us to refer to and attach copies of other opinions

of this department, and when that is done said opinions, and each of them, will be adoptedas a part of this opinion insofar as they pass upon questions

here discussed.

Bexar County. The Bexar County Criminal District

Court was created and established

by Articie 52-161 of the Code of Criminal Procedure

of the State of Texas, and Section12 of said article providesfor the election of. .

Hon. C. H. Cavness, page.6 (o-6676)

a criminal

district

attorney

of said county. Article 3912e-1of Vernon'eAnnotatedCivil Statutesfixes the salaryof said criminal dietrict.attorney at the sum of $7,400.00.

We are unable to state just what positloneln,theoffice of Criminal District

Attorneyof Bexar Countywere filled by any particular

persons,

as set forth on the schedulesubmitted, as home of the ealaries paid euch person6
are lese than those authorized by law. In our opinion, Article 3912e.,

Section lg(f-l),

fully authorlzed

all of the salariesshown in the echedule, eince Bexar Countyhad a population of 338,776 under tha Federal Censurof 1940 and such statute

applied to the district attorney

or the criminal

district

attorney, in any countyhaving a population of not less than 325,000 nor more than 500,000

according

to the laet preceding FederalCensus.

Your scheduleshows twelve assistantcriminal district

attorneys for each of the three years. In 1942 the following salaries

were paid: one assistant

at $4,500.00,

three at $4,200.00, two at $3,600.00,

two's& $3,000.00, and four at $2,700.00. In 1943 the following salaries

were paid eaid assistants: two at $4,500.00,

one at $4,200.00,

three at $3,600.00, three at $3,000.00, and three at $2,700.00, And, in 1944 the following salaries

were paid said assistants: two at $4,500.00, one at $4,200.00, three at $3~,600.00, three at $3,000.00, and three at $2,7OO,OO. The statute above referred

to authorizes the criminal

district

attorney

to appoint

nine assistants

and to fix their salaries

at a rate not to exceed the following amounts: two at $4,500.00 per .annum each, two at $4;200.00 per annum each, one at $3,600.00 per annum, one at $3,OOO.Q0

per annum, and three &$2,7OO.O0 per annum ea.ch. In addition. to those, the criminal district

attorney

was author.ized.to

appoint,

with the advice and consentof the' Commissioners'

Court, the following additional

assistants

and pay them the.salaries stated,

to-wit,one at * salarynot to exceed $4,250.00 per annum; one not to exceed $3,600.00 per annum; one not to exceed $3,000.00

per annum; and two not to exceed $2,7OO.OO per annum;and
one not to exceed $2,,400.00 per annum.

House Bill No. 849, Ch. 271, pb 428, Vernon% Texas SessionLaw Service, passedby the last Legislature and which became effective ninety (90) days after June 5, 1945, date of adjournment, applies,to

counties

havinga population of 225,000or more*andless than 500,OOO~according to the last preceding Federal Census,and fixes the Galaries of criminal

district

attorneysin md.~ counties

at $6,500.00

up to January 1, 1946, and at $7,400.00 after that date. Our Opinion

No. o-6728, a copy of which we hand you herewith, holds House BFll

. Noa 849 to be'in irreconci+able conflict

with SenateBill No. 246 insofar as said bills apply to Bexar County. Therefore, SenateBilI,No.246 will control the salaryof the criminal district

attorneyin Bexar County.

SenateBill No. 246, Ch. 312, p. 510, of said Law Service, applies to countiesin this State havinga population of not less than 300,000 nor more than 500,000according to the last preceding FederalCenBus. This law became ef?ective

on June 2, 1945, and governs the salaryof the criminaldistrict attorneyfn Bexsr County after that date. This law authorizes his salary to be $7,700.00

per annum, and it also authorizes an increase

of 15% on the. .

Hoq. C. H. Cavnem, page 7 (O-6676)

salaries

of the assistants, 15, 1945. such increase to be based on the salaries of March Said law also repeal6 Article 3912e-1,

Vernon'e

Annotated

Civil Statutea,

which in the law hereinbefore aet out a8 fixingthe salary of the criminal

district

attorneyfor the years referred to by you.

As to those two referred to on your schedule for 1944, one at a salary of $3,000.00,

the other at $2,700.00, whether or not the apportionment made
on their salaries

wa8 legal,

would dependentirely upon whetheror not they actuallyservedas such assistants.~ If they did not eerve,then they should not have been included in the apportionment, a8 the holding

made In our Opinion No. 0-6226 that the calculation should be based on the amount actually paid is evidently

correct.
Article 3912e, Section13, of said statutes provides

that in counties having a population of 20,000 or more and lees than 190,000, the Commissioners' Court is authorized to fix the salaries of the county officials thereinnamed, including

the countyattorney, criminal

district

attorney

and countyattorney who performsdutiesa8 district attorney,

which ehould

be not less than the total sum earneda8 compensation by them in their official capacity

for the year 1935 and not more than the maximumamountallowedto such officials under laws existing

on August 24, 1935. It wa8 providedfurtherthat in counties falling

within a certainlimit as to population according

to the last preceding FederalCensus such counties could have such amounts Increased in the event the assessed

valuations

were in excess of the amountstherein set forth according to the la& approved preceding

tax roll. Article 3912e, Section15, of said statutes,

contains

provieions

relative

to the salaries

that such officials in counties

having a population of less than 20,000 according to the last precedingFederalCensus couldbe paid, but none of the counties herein referred to come within aaid articleand section. Therefore, it will not be further referred

to, Our Opinion6

Iios, O-2748 and 0-2546-Acontain a full discussion of the rules and methodsgoverning the-fixing

of such salaries

under the above referred

to provisions,

and copiesof same are enclosed herewith

for your informatfon.

An exception

to the rule set out in Article 3912e, Section 13, that salariesshallnot be less than the total sum earned for the year 1935 and not
more than the maximumallowedunder laws existing on August 24, 1935, is contained In Article 3912e-7, which became effective July 5, 1941. This law applibd, however,

only to Hldalgoand McLennanCounties duringall of 1942, 1943 and 1944 and to Jefferson Countyup to June 15, 1943, and 6ame will be further considered

In connection

with each of said counties.

These rules do not apply,however, to counties

whoee population

is in exce68 of 190,000a8 such counties come within the provisions of Article 3912e, Section19.

Brazes County. This countyhad a population of 21,835 in 1930= Under Arficles3883.1 and 3891, the countyattorney of this county could have been paid a salary of $3,000.00. Under Article 3902.1, the first assistant countyattorneycould have been paid not to exceed$+,~oo.oo and other asaiatants nqt to exceed $1,500.0?.. .

Hon. C. H. Cavness, page 8 (o-6676)

ColllnCoupty. Thie county had a population

of 46,180 in 1930. Under Article8

3883.3 and 3891, the countyattorney could have been paid a salaryof $4,250.00., The population

of this county for 1940 waB 47,190 and the assessed

valuatione

for 1941, 1942, and 1943 were $21;730,930.00, $22,350,260.00,

and $Z!2,352,325.00, respectively,

therefore,

under Articles 3912e, Section13, the countyattorneycouldhave been paid an additional 2$ for 1942,,m additions1 3% for 1943 and m additional 3$'for 1944, such per- , centagea

baaed upon the salaryof $4,250.00. Under Article 3902.3, the first asaietant

county&torney couldhave been paid a ralaryof $2,100.00, and other assistants

not to exceed $1,800.00.

Cooke County. The population of this county

was 24,136 in 1936. Under Articles3883.1and 3891, the countyattorneycould have been paid a salary of $3,000.00. The population l+ 1940 ME 24,909.. .The aeeeeaed valuatione for 1941, 1942, and 1943 were $18,896,250,00~ $i0,089,410.00, and $ly,487,,8oo.o0. Therefore, underArticle 3912e, Section 13, the couqty,attorney could have been paid an additional 4$, 6$ and 5% of said salaryfor the years 1942, 1943, 'and 1944, reepectively. .:

- Dallae County. !?he,Dallas,County Criminal

Dietrict

Court was created and established

by Article 52-l -- 52-24 of the Code of Criminal Procedure of the State of Texas, and Section 52-24 thereof provldeefor a criminaldistrict attorney; The 1940 population of Dallas County

waB 398,564, therefore, the salaryof the criminal district.attorney

of Dallas County is governed by Article 3912e-2(b), which authoriZee.the fun qf $7,400.00

in all countiesin <the State havinga population in excess of 355,000according to the laaet

preceding FederalCeneus.

'The salariee

paid to the variousassistant criminal district

attorneys for the years named varyin amount,and.we? are unable to chargeany of said salaries

againstany particular person,

but Article'

3912e,Section19(f-l), which appliesto cou$ies having a population of noflees than..325,000 and not more than 500,000, authorizes

all of the salaries set forth in the schedule submitted.

.

Yoti show in your schedule fifteenassistant

c&ni& district

attor- *

. neys in 1942 who were paid the following salaried: one at $4,5OO.Od; one at $4,200.00;

two at $3,600.00;

two at $3,39y000

each; one at $39708.00; two at $2,7OO.OO

each; thrae at $2,472.00 each; one at $2,008,50; one at $2,162.50; and orie

at $1,854.00. You ahow thirteenfor 1943 who were paid the following salaries: two at $4,500.00 each; three at $3,600.00 each; one at $3,9OO=OOj doneat $3,000.00;

one at.$2,700.00;

and three at $2,400.00. You show twelve for 1944 who were paid the following sqlaries,:

two'for&4,500'000 eachj one : for $3,9OO.Ooj

thfree for $3,600.00

ea?h; one for $3,000.00; three for $2,700.00 each; and two for $2,400,00 each. TM above articleauthorizes the criminal district

attorney

to appoint

nine aeaigtante

and pay them the followingsalarieaj two at $4,500.00 perannum each;.two at $4,20OaOO

per,annun

each; one at $3,600.00

per annum; one at $3,000;00 per amm;, and,three at $2,7OO.OO per ennum each. *With the advice end consent of the Commissioners' Court, the
same article'authorized.him to appointaa many a8 six more aaai+anta,and pay

.Hon. C. H. Cavueas, page 9 (O-6676)

them the following,ealarlez: one at $4,250.00

per annuzq one at $3,600.00 per nnnum; one at $3,000.00 per annum; two at $2,7OO.OO per ahuum;and one at $2,400.00

per annum. In our opinion, the aalnrier

pnid said amirtantz during the years mentioned were authorized

under the law, even though the amount8 paid were in zone caee6 lezz than the amountauthorized.

We note you refer to awze abatractere and clerkshaving

been paid salarlee

when they were not licensed a8 practicing

attorneys. Unlees said abstractem and clerka ware practicing

law, they would not be required to be practicing

attorneys. .Siuce

there is nothingto show that they were practicing law, that is, trying cases, or doing other things requiring a lax license,

we presumethey were just what their positionsimply, namely:abatractere and clerks. Under the opinionof this department referred

to by you, dated September 15, 1936, and in which it x88 held that only assistant criminal

district

attorneys should

be includedin makingup the apportionment, abetracters

and clerks shouldnot have been included therein.

What has been hereinabove eaid as to House Bill Bo. 849 and Senate Bill Bo. 246, passedby the last Legislature, is also applicable

to Dallas County,and the salaryof the criminal district

attorney

of Dallas County should be considered

on the basis of $7,700.00 per annum from and after June 2, 1945, and the assistants on an increase

of 15% on the salsriee authorized

to be paid
on March 15, 1945,which would be those hereinabove set out.

Denton County. The population of thik county

x88 32,322 in 1930. Under Articles3883.2 and 3891, the countyattorneycould have been paid a salary of $3,500.00 per anuum. The 1940 population was 33,658,and he could have been paid a compeneation of 5$, 6% and 6$ of said amount for each of the years 1942, 1943, and 1944, respectively, under Article 3912e, Section13, since the assessed

valuations

for the preceding

yeare of 1941, 1942, and 1943 were $19,240,755.00,

$20,041,05O.OG,

and $20,170,6~5.00, respectively.

Under Article 3902.2 the first aesiritant countyattorneycould have been paid not to exceed $2,000.00,

and other aseistants not to exceed $1,700.00 each.

Eaatland

County. You refer to thie countyas having had a criminal district

attorneyfor the years in question, but‘saidcountyat no t,ime was authorized

to have other than a countyattorney. Our Opinion No. Oi6374,a copy of which is enclosed herewith,

holds that a countyattorney wan authorized for EastlandCounty,and our Opinion Ao. O-5024,a copy of which is aleo enclosed, and which is referred to in Opinion

Bo. o-6374,holds that Article 326k-7, V. A. C. S., the only statute that uould have authorized a criminal

district attorneyfor EastlandCounty, was invalid. However;the person serving as countyattorneyor criminal district

attorney

of EastlandCounty,even if under the impression

that he was legallycriminal district

attorney

of such county was entitled

to compensation,

a8 held in our Opinion No. 0-3158,

which deals with a similarsituation in GraysonCounty,and a copy of which is herewith enclosed. Therefore, we will consider

this countya8 havinghad at leaat a de facto county attorney and entitled

to the regularly

authorized

apportioament.Hon. C. B. Cavneas, page 10 (o-6676)

The population

of thin coun$y

wal 34,156 in 1930. UnderArtlcJee 3883.2 and 3891, the countyattorney tir entitled

to a 8alaryof $3,500.00, The 1940 population wan 30,345,

therefore,

underArticle 39l2e, Section13, he could have been paid an additional muu of 6% of 1942, 6$ of 1943, and 5% in 1944, eince the anlreraed valuatibnr

for the years preceding each of those yeare were $20,360,000.60, $20,372,340.00,

and $19,575,780.00, rerpectively,

El116 County. Ellir County ir alro referred to 81 having had a criminal

district

attorney. The only rtatute authorizing

a criminal

dlatrict attorney for such county 10 Article 3264-11, which, ar held by our Opinion No. O-5024,

hereinabove

referred

to, in UnconrtitutiOnal, or Article 326q,which is alno unconstitutional, 86 held by our Opinion no. O-5001,a copy of which is herewith

enclozed. Your attention Se alao directed

to the cane of Hill Countyv. Sheppard, 178 S. W. (2d) 261, wherein the BupremeCourt held Article 326s invalid. Therefore, we will only coneider aaid countyas havingbeen authorized

to have a countyattorney duringthe time involved.

The population

of thin county in 1930 was 53,936. Under Articles 3883.3and 3891, the countyattorneycould have been paid $4,250.00 per annwz. The I,940

population

wae 47,733,therefore, under Article.j912e, Section 13, he could have been paid an additional Sum of 8$ for e&h of aaid.years, since the assessed.valuations for the preceding

years xere #27,709,750.00, $27,969,257.00, and $27,918,705.00, rezpectively.

Under Article3902.3, the first aasletant countyattorneycould have been paid not to exceed $2,100.00. We are unable, however,

to find any authority for a tax deputy in e. countybf this eize. Said Article 3902.3 authorizes the appointment

of other azzistants, deputies
or clerks,

who can be paid not to exceed $l,800.00 each. One of these could be calleda tax deputyand he would not need to be a licensed attorney,

unless he should

be practicing

law. , Falls County. We know of no-statute authorizing

a criminal

district attorneyin this county other than those hereinabove referred

to which have been held invalid. Therefore, this county

will be considered aa havinghad a countyattorney

only. The population of this county in ~1930 was 38,771. Under Articles 3883*3 and~3891, the countyattorney.could have been paic $4,250.00 per annum. The 1940 population wae 35,984and under Article 3912e, Section 13, he could have been paid an additions1 15 of said amount.

for the year 1944, since the asseesed

valuation'for

the ye&l943 wae $15;150,666.00. Under Article 3902.3,the first assistant countyattorneycould have been paid not to .exceed $2,100.00.
Fannin County. The population of this co&y in 1930 ~6 41,163. Under Articles388303and 3891, the countyattorneycouldhave been paid $4,250.00

. per annum. Under Article 3902.3,the first aseistant countyattorneycould .&ve been paid not to exceed $2,100.00.

Freestone

County. The population of this county for 1930 was 22,589, and the same statement above mad@ aa to there being no authority for a criminal diatltict

attorneyin this countyapplieshere. Under Articles3883’.1 and 3891, the countyattorneycould have been paid a salaryof $3,000,00 per annum.Hon. C. H. Cavnesa, Page 11 (O-6676)

Galveston

County. The population of this county In 

### 1930 me 64,401. Under Articles

### 3883.4 and 

### 3891,

the countyattorney could have been paid 

### $4,750.00.

The population

of the city of Galveston In 

### 1940 wna 60,862. Under Article 

### 3887,

which applierto countier having a population of lGO,OOGor leas, and containing

a city having a populatian in exceae of 50,000 in which county there la no district attorney,

there could have been not to exceedthree a6- sistant

countyattorneya

in Galveston

County,two of whom could have been paid not to exceed $2,7OO.OO per annum each and the other not to exceed $2,100.00 per annum.

House Bill No. 798, Ch. 187, p. 253, Vernon's Texaa SessionLaw Service, passedby the last Leginlature and which became effective May 9, 1945, provides

that in all counties havinga population of 60,001 and not more than 100,000according

to the last preceding Federal Census the countyattorneys in such counties

which do not have a district attorney,

and where the county attorney

performs

ths duties of countyattorney and district

attorney,

the countyattorneyshall apply to the Coxmisslonerr I Court of his countyfor authority to appoint such assistant countyattorneys

as he may require in the performance

of his duties,and the Coamiesioners' Court is authorized to determine the number to be appointed and fix the compensation to be paid within the limitations

named therein,

which shallbe a reasonable one, not to exceed 

### $3,6OO.00

per BI~I~UP~.

This law appliesto Galveston County from and after its effective

date.
GraysonCounty. This county was at no time entitled to have a criminal district

attorney,

and we directyour attention to what has hereinabove been said as to the validity of the laws which undertook to create such an office. In 1930 the population of this county

was 

### 65,843. Under Articles 

### 3883.4 and 

### 3891,

the countyattorneycould have been paid 

### $4,750.00 per annun. Under Article 3902.4,the first assistant could bavebeen paid $2,400.00 and other assistants

$2,100.00

per annum each. What has been above said as to House Bill No. 

### 798 also applieato GraysonCounty.

Gregg County. The crinlnal district

court of this county was created by Article 199, Subdivision 124, V. A. C. S. Section21 thereofauthorised the criminal

district

attorney

of aaid criminal

district

court to be paid a salary of $4,250.00, and Section22(a) thereofauthorized a first assistant criminal

district

attorney

at 

### $3,600.00

per annun and a secondassistantcriminal district

attorney

at $3,000.00

per Mrunk.

Harris County. The criminal district

court of Harris Countywas created

by Article 52-25 -- 52-88 of the Code of Criminal Procedure

of Texas, and Subdivision

52-43 thereofprovidesfor the election of a criminal

district attorney. The 1940 population of this countywas 528,961, therefore,

the salary of the criminal district

attorneyis governed by Article 3912e-2(b) which authorized

sane to be $7s400.00in counties having a population in excess of 355,000.

The number and salaries of assistant

criminal

district

attorneys in this countyare governed by Article 3912e-2(f). Under this provision nine.

Hon. C, H. Cavness, page 12 

### (o-6676)

assistants

could be appointed

and paid the following compensation:tuo at $4,500.00 per annum eachj two at $4,200.00 per annum each1 one at 

### $3,600.00~
one at $3,000.00

per snnumj and three at $2,7OO.OO per annum each. In addition, shouldthe district attorney

be of the opinion

that ths number of such assistant6

is not adequate,

hs could,

with the advice and consentof the Commiraloners'

Court, appoint

the following

additional

assistants

and pay them not to exceed the salaries mentioned: one at $4,250.00 per annumj one at 

### $3 600.00 per annumi one at $3,000.00 per annumj and two additional assistants

at 

### 62,700.oo per annum each.

Under the schedule submitted

by you, the following arrirtantr

were appointed

and paid the stated salaries for each of raid years: for 1942, two assistants

at $4,500.00

each3 three at $4,200.00 each) two at 

### $3,600.00 each) two at $3,OOp.O0

each) and five at $2,7OO.OO each: In 1943 two at $4,500.00 each; two at $4,200.00 each4 two at $3,600.00 each; two at 43,OOO.OO each; and five at $2,700.00 each: And in 1944, tuo at $4,500.00 each; three at $4,200.00

each; two at $3,600.00 each; two at $3,000.00 each; and five at $2,700.00 each. It ie our opinion, therefore,

that all of said assistanta and the salaries

paid them were duly authorized under the law.

SenateBill No. 279, Ch. 85, p* 122, Vernon's Texas SessionLaw Service, which became effective on April 19, 

### $945,

appliesto count,ies having a population

of 500,000or more and includes Harris County. Section 6 of said Act sets out the number of assistant criminal

district

attorneys

that can be appointed

in said countyand the amountsof the salaries that can be paid.

HarrisonCounty. The 1930 population of this countywas 48,937. Under Articles3883.3 and 3891, the countyattorneycould have been @aid as much as $4,250.00

per annum. Under Article 3902.3, the first assistant county attorney

could have been paid not to exceed $2,100.00, and other assistants not to exceed $1,800.~~ per annum each.
Hidalgocounty. We find no authority for a criminal

district

attorney in this county,therefore, what has been heretofore said in connection with Articles326k-p,326k-11 and 326s is also applicable here, as there were no other statutes

authorizing

a criminal

district

attorneyin this county.
Article 3pl2e-7,

which became effective July 

### 5, 19&l, provides that the Commissioners' Courts in all counties havinga population of not less than 100,000and not more than lpO,OOO, according

to the last preceding Federal Census, in fixing the salaries to be paid the officers named in Section13 of Chapter

### 465 of the Acts of the Second Called Sessionof the Forty-fourth Legislature,

(Art. 3912e, Sec. 13), where such salaries are determined

in compliancewith the laws which existedon August 24, 1935, and are based upon population,

shall,c&pute,

and fix the salaries of such officers

at the maximum amount

which couldhave beenpaid under ,the laws existing

on August 24, 1935, according

to the FederalCensus of 1940, and thereafter according

to the lastprecedingFederalCensus.Hon. C. A. Cavnees, page 13 (o-6676)

The population

of this county in 1940 was 

### 106,ogp.UnderArticles 

### 3883.5 and 3891, the countyattorneycould have been paid $5,500.00 per annum. Under Article 3902.5,the first assistant could have been paid 

### $2,600.00 per annum and other assietants $2,3OO.OO

per annum each.

Hill county. No criminal district

attorney

has been authorized for this county,

and we again refer to the opinions and statements

hereinbefore referred

to, and especially

to the ca8e of Hill Countyvs. Sheppard, 

### 178 S. W. (2d) 

### 261,

by the SupremeCourt,which holds that the statute authorizing

a criminal district

attorneyfor this county is invalid.

The population

of Hill County in 1930 was 43,036. Under Articles 

### 3883.3 and 3891, the countyattorneycould have been paid $4,250.00. The 1940 population

was 

### 38,355

and under Article 3p12e, Section13, he couldhave been paid an additional l$ for each year, since the assessed valuations

for 1941, 1942 and 1943 were $20,430,520.00, $20,438,op8.o0

and $20,357,450.00,respectively. Under Article 3902.3, the fir-et

assistant

countyattorney

could have been paid not to exceed $2,100.00.

Jefferson

County. The Criminal District

Court of this county waB createdand established by Article 

### 52-160

of the Code of Criminal Procedure of the State of Texas, and Section11 thereofprovides that the countyattorney of Jefferson

County shallbe countyattorney of this Criminal

Dietrict Court.

The population of this county in 1940 was 145,329, therefore,

it would be governed

by Article 3p12e-7and what has been hereinabove said a8 to HidalgoCountywill also apply here as to the application of this Article.

Under Articles

### 3883.5 and 3891, the countyattorneycould have been paid $5,500.00

per annum. Under Article 3902.5,the first assistant could have been paid 

### $2,600.00 per annum and other assistants $2,300.00

per annum each.

A Special Federal Censuswa8 aounced for Jefferson County on June 15, 1943, showingthe population of this county to be 191,942. Article 3pl2e, Section 19, provides that "Provisions

of this Section shall apply to and control in each county In the State of Texas havinga population in excess of
one hundredand ninety (1p0,000) thousandinhabitants, according

to the last preceding

Federal Census." Therefore, the salaries

of the countyattorney of Jefferson

County and his assistants from and after June 15, 1943, are subject to the provisions of said Section.

Article 3p12e, Section19(d),provides that the officers

therein named, including

the "district

attorney

or criminal

district

attorney,"

as the case may be, shall receivea salaryof 

### $6,500.00 per annum,but no salary is provided

therein for a countyattorneyin a countyhaving a population In excess of lpO,OOO. Since the countyattorneyof Jefferson County is the county attorneyfor the Criminal DistrictCourt of said countyand performs the duties of district

attorney,

or criminal

district

attorney,

it is our opinionthat he.

Hon. C. H. Cavness, page 14 (O-6676)

is entitled

to the compensation prescribed

for the dl#trict

attorney

or crlminal ditirict

attorney,

under the rule8 of law laid down in our Opinion No. O-3158 hereinabove referred

to. It is our opieion that he was and is entitled to a salaryof $6,500.00from and after June 15, 1943. This holdingalso has eupport in the former law, in that it is providedin Articles3883.6and 3891 that, in counties

containing

as many as 150,001or more inhabitants, the dlstrict or criminal

district

attorney

or ,county

attorney

can be paid as much
aa $6,500.00

per annum.
Under Article 3902.5, the first arrirtant could hrve been paid not to exceed 2,600.oo per annum and other ar~irtantr could have been paid not to exceed t2,3OO.OO per annum each to June 15, 1943. After June 15, 1943, the appointment

of amrietants

to Criminal

Dirtrict

AttorneyrIQ Jefferson County, or to the County Attorney, and the amountsof their salaries, in governed by Article 3912e, Section19(f), which providea

for nine assistants to be paid the following salaries: two at $4,500.00 each5 two at $4,200.00 each;
one at $3,600.,00~

one at $3,000.00;

and three at $2,700.00 each.

It Is further

providedIn said Section 19(f) that shoulda district

or criminal district attorney be of the opinion that the number of assistants, etc., is inadequate for the efficient

performance

of the duties of his office, with the advice and consentof the Commissioners' Court,he may appointadditional assistants and fix their salaries as follows: one not to exceed $4,250.00;
one not to exceed $3,600.00; one not to exceed $~,OOO.OO; and two not to exceed $2,700.00

each.

Your attention is also directed to House Bill No. 855, Ch. 307, p0 505,Vernon's

Texas Sessions

Law Service,

which became effective June 4, 1945, and which providesthat the countyattorneyin counties havinga population of
more than 190,000 inhabitants according

to the last preceding FederalCensus, where there is no resident district

attorney

or criminal

district

attorney, shall receive the mm@ salaT a8 provided for district attorneys or criminal district attorneys in Section l-a, SenateBill No. 374, Ch. 26, Acts of the Forty-fifth

Legislature,

RegularSession,1937; and said countyattorneys are authorized

to appointassistants and employees

in the se@e manner as is provided for district attorneys or criminal district

attorneys

under the provisions of Section1, House Bill No. 148, Ch. 68, Acts of the Forty-fifth Legislature, Second Called Session, and that such assistants shallbe compensated as provided in said Section1 of House Bill No. 148.

The firstAct referred to is Article 3912e, Section19(d), which has applied sinceJune 15, 1943, and the salaryof the countyattorneySo provided for, IS $6,500.00 per annum. The otherAct referred to is Article 3912e, Section19(f),and authorizes the same number of assistants as has been authorized in this county since June 15, 1943, and said assistants can be paid the
same salaries

as have been authorized to be paid since said date.

You refer to~the fact that the chief clerk employed by the criminal district

attorney

of this county In 1942 and 1943 was not an attorney. There is no law requiring a chief clerk to be an attorney, but under the opinionHon. C. H. Cavness, page 15 (o-6676)

.

of this department referred

to by you, dated September 

### 15, 1936, the salary of such chief clerk should not have been used as a basis for the apportionment by the State here under consideration.

We enclose

herewith

a copy of our Opinion No. O-6499holdingthat the Special

Federal Census of June 15, 1943, governs in fixingthe amounts of salaries

after that date in Jefferson County.

Kaufmancounty. The population of this county in 1930 was 40,905. Under Articles

### 3883.3 and 3891, the countyattorney could have been paid $4,250.00

per annum. Under Article 3902.3,the first assistant countyattorney couldhave been paid not to exceed$2,100.00.

'Lamar county. The population of this county in 1930 was 48,529. Under Articles3883.3and 3891, the countyattorney could have been paid $4,250.00. The 1940 population was 50,425,

and the assessed

valuations

for 1941, 1942 and 1943 were $21,278,295.00, 

### $21,653,595.00

and $21,81.7,1.10.00, respectively.

Therefore,

under Article 3912e, Section13, the countyattorney could have been paid an additional 2s of $4,250.00

far each of the years 1942, 1943, and.

1944. Under Article 3902.3,the first assistant could have been paid not to exceed $2,100.00 and.other

assistants

not to exceed $l,800.00 per annum each.

Limestone

County. The 1930 population was 39,497. Under Articles 3883.3 and 3891, the countyattorney could have been paid $4,250.00 per annum. The 1940 population was 33,781and the assessed valuations

for 1941, 1942, and 1943 were $16,529,6lO.O0, $15,607,655.00,

and $16,176,100.00, respectively, which, under Article 3912e, Section13, would have authorized the salaryof the countyattorney to have been increased 2$, l$, and 2$, respectively, for the years 1942, 1943, and 1944. Under Article 3902.3,the first assistant countyattorneycould have been paid not to exceed $2,100.00. We encloseherewith copy of our Opinion No. 

### 0-2560

which dealswith the propermethod of computing salaries

of countyand district officials

in this county.

McLennan

County. This county was at no time authorized to have a criminal

district

attorney,

and what has hereinbefore been said as to the invalidity

of the statutes

authorizing

criminal

district

attorneysis also applicable

here.

The population

of this county in 1940 was 101,898, therefore,

it would be governed

by Article 3912e-7and what has been hereinbefore said as to Hidalgoand Jefferson Counties

as to the application of saidArticlealso applies

here.

Under Articles3883.5and 3891, the countyattorneycould have been paid $5,500.00

per annum. Under Article 3902.5,the first assistant could have been paid not to exceed $2,600.00 per annum and other assistants not to exceed $2,3OO,OO

per annum each.Hon. C. H. Cavnese, page 

### 16 (o-6676)

Milan County, There raa no statute authorizing

a criminal

district attorneyfor this county, and what has heretofore been said relative to such officials

not being authorized also applies

here. The 1930 population of this county was 

### 37,915. Under Articles

### 3883.3 and 

### 3891,

the countyattorneycould have been paid an much a8 $4,250.00 per annum. The 1940 population wan 33,120 and under,Article

3912e,Section

### 13, he could have been paid an additional
sum of l$ of said salaryfor each of raid yearo, mince the araeaaed valuations for 1941, 1942 and 1943 were $15~76~735.00,,$15,423,512.00, end $15,581,045, respectively.

Navarro County. This county wan not authorized to have a district attorney

and what has been heretofore said ar to criminal district

attorneys also applies

here, if eald county wae considered

aa having

been subject

to the statutea

referred

to. The population of this county for 1930 waa 60,507. Under Articlee3883.4 and 3891, the countyattorney could have been paid a8 much a8 $4,750.00. The 1940 population was 51,308and under Article 3912e,' Section13, he could have been paid an additional mun of 1% of said amount for each of the years inquired about, since the &seeqed valuations for the years 1941, 1942 and 1943 were $20,083,293.00, $20,090,547.00,

and $20,608,666.00, respectively.

Under Article 3902.3,the fir& aesistant could have been paid
as much as $2,100.00 per annum and other assistants as much a8 $I.,~OO.OO per BMUIil.

We alao hand you herewith a copy of our Opinion No. 

### 0-6484,

which deals with the salaries

of the countyattorney of this county. Ae to whetherall those referred

to as assistants

were actually

entitled

to be carriedas such would dependupon the services performed

and, if they were not actuallyassietant, countyattorneys,

they shouldnot have been used as a basis for this apportionment

from the State.

Red River County. The 1930 population of this county

was 30,923. Under Articles3883.3and 3891, the countyattorneycouldhave been paid as much a8 $3,500.00.

Robertson

County. The 1930 population of this county

wan 27,240. Under Articles3883.2 and 

### 3891, the countyattorneycouldhave been paid a8 much as $39500.00

per annum.
Rusk County. The 1930 population of this county

was 32,484. Under Articles3883.2 and 3891, the countyattorneycould have been paid a8 much ae $3,500000

per annum. The 1940 population was 51,023and under Article 3912e, Section13, he couldhave been paid an additional 72$, 70% and 66$, respectively, for the years 1942, 1943 and 1944, since the asseesed valuations

for 1941, 1942 and 1943 were $g1,210,805.00, $89,342,105.00

and $85,367,894.00, respectively. Under Article 3902.2 the first assietant countyattorneycould have been paid
aa much as $2,000.00 per annum and other assietante as much as $1,700.00 per annUrn.

TarrantCounty. The Crimiqal District

Court for TarrantCountywan createdand established by Article 

### 52-63-- 52-87 of the Code of CriminalProcedure of the State of Texas, and Subdivision 52-81providesfor a criminal dietrict

attorney. The 1940 population of TarrentCountywas 225,521, therefore.

Hon. C. H. Cavness, page 17 (O-6676)

the salary of the criminal district

attorney

of said county is governed by Article 3912e, Section19(d),which authorizes the sum of $6,500.00 for each of the years inquired about in counties

having a population in excess of 190,000.

The salaries paid to the variousaeaistaut criminal

district

attorneye for the years named vary in amount,and we are unable to chargeany of said ealaries

againstany particular person,

but Article 3912e, Section 19(f), which appliesto counties having a population in excess of 190,000authorices all of the salariesin the schedules submitted,

except as hereinafter eet forth.

You show in your schedule fifteenassistant

criminal

dietrict

attorneys for 1942,who were paid the folloxi.ng salaries: two at $4,500.00 each,
one at $3,600.00,

one at $3,300.00,

two at $2,880.00,

two at $2,520.00,

one at $2,400.00,

one at $2,34O.OO,

three at $2,100.00, oue at $1,920.00,

and one at $1,800.00. You show twelve for 1943 who were paid the following salaries: two at $4,500.00

each, one at $3,600.00, one at $~,OOO.OO,

one at $2,880.00, two at $2964~.~~,

one at $2,520.00,

two at $29400.00, one at $2,280.00, one at $2,100.00,

and eleven for 1944 who were paid the following salaries: one at $4,500.00,

two at $3,600.00,

one at $~?OOO.OO,

one at $3,180.00,

two at $2,7OO.OO,

and four at $2,880.00. Said Article 3912e, Section19(f),authorizes the criminal

district

attorney

to appoint

nine assistant

criminal

district attorneys

and pay them the following salaries: two at $4,500.00, two at $4,200.00, one at $3,600.00, one at $3,000.00, and three at $2,700.00. In addition,

if he be of the opinion that the number of assistants is insufficient, he may, with the advice and consentof the Commissioners' Court,appointadditional assistants

and pay then the following salaries: one not to exceed $4,250.00, one not to exceed$3,600.00, one noa + to exceed $3,000.00, and two not to exceed $2,7OO.OO. It is our opinion, therefore,

that salaries

paid said assistants

during the years mentioned were authorized

under the law even though the amounts

paid were in some cases less than the amount authorized, except that fifteen were used and paid in 1942 when only fourteen were authorized.

House Bill No. 241, Ch. 74, p0 106, Vernon's Texas SessionLaw Service, appliesto counties having a population of 225,000or more and leas than 500,000according

to the last preceding FederalCensus and would includeTarrant County. This law authorizes the district

attorney

to be paid a salary of $7,400.00.

House Bill No. 849, Ch. 271, p0 428, of said Law Serviceapplies to counties

havinga population of 225,000or more and less than 500,000and also includes

TarrantCounty. This law fixes the salaryof the criminaldistrict attorney

at $6,500.00

per annum up to January 1, 1946, and thereafter at $7,400.00

per annum. Under the rules of law set out in our Opinion No. o-6728hereinabove Peferred

to, House Bill No. 849 would governthe salary of the criminal

district

attorneyin TarrantCounty, instead of House Bill No. 241, sinceHouse Bill No. 241 was approved and became effective on April 10, 1945, and House Bill FTo. 849 was filedby the Governor on May 30, 1945, and became effective ninety days after June 5> 1945, or on September 3, 1945.Hon. c. H. Cavness, page 

### 18 (o-6676)

Therefore,

House Bill No. 849 repeals House Bill No. 241 Insofar as they are in conflict,

the conflict

being that Houee Bill No. 241 provideafor a salary of $7,400.00

for the district

attorney

while Houre Bill Ao. 849 provideB that said salary shallbe only 

### $6,500.00 to January 1, 1946, and $7,400.00thereafter. Therefore, in connection

with the salaryof the criminal dintrlct

attorney of TarrantCounty, it will be 

### $6,500.00 per &MWE to April 10, 1945; $7,400.00

per mum from April 10, 1945 to September 

### 3, 1945j $6,500.00

per annum from September 

### 3, 1945, to Jaauary 1, 19461 and thersaiter $7,400.00 per agum.
While "District Attorney"in named ln House Bill No. 241 and "Dietrict Attorney"

and "Criminal

District

Attorney"in Houre Bill No. 849, it ia clear that both of eald bills were intended'to apply to "Criminal

District Attorney",sinceall countiesl within the population boundenamed have such official.

Van Zandt County. The 1930 population of this county

was 32,315. Under Articles3883.2and 3891, the countyattorneycould have been paid aa much a8 $3,500.00. The 1940 population wa8 31,155and underArticle 3912e, Section 13, he could have been paid an additional cum of 10% of said salary for each of said years, elnce the aaseeaed valuations

for the years 1941, 1942 and 1943 were $24,067,ggg.O0, $24,064,984.00,

and $24,296,412.00, respectively. Under Article 3902.2 the first assistant countyattorney

could have been paid not to exceed $2,000.00.

Williamson

County. This county was at no time authorized to have
a crFmina1

district

attorney

and what has heretofore been eaid as to the invalidity

of law6 providing

for a criminal

district

attorneyin a countyof this size is aleo applicable here. The 1930 population of this county

was 44,146. Under Articles3883-3and 3891, the countyattorney could have been paid a6 much a8 $4,250.00. The 1940 population ~88 41,698 and underArticle 3912e, Section13, the countyattorney could have been paid an additional 2s for 1942, & for 1943, and 

### 3% for 1944, since the assessed valuation6

for the respective preceding

years were 

### $21,206,110.00, $21,799,940.00,

and $22,195,150.00. Under Article 3902.3 the first assistant couldhave been paid not to exceed $2,100.00 per annum, and other assistants not to exceed $I.,~oo.oo.

A countyattorneyis required to be a duly licensed attorney

at law, and an assistant

countyattorney

must have the 6am.e qualifications

as the county attorney. (Articles 331 and 332, V. A. C. S.)

The State Bar Act (Art. 320a-l), which became effective fn 1939, provides in part a8 follows:

"Sec. 2. There Is hereby created the State Bar, which is hereby constituted an administrative

agency of the JudicialDepartmentof the State,with power to contract with relation

to ite own affairaand which may sue and be sued and have such other powers a8 are reasonably necessary

to carry out the purposes of this Act.,

Hon. C. H, Cavness, page 19 

### (o-6676)

"Sec. 

### 3. All persona who are now or who shall hereafter be licensed

to practicelaw In thin State shall constitute and be members of the State Bar, and ahallbe subject to the proviaiona hereof and the rule6 adopted by the SupremeCourt of Texas; and all persons

not membersof the State Bar are herebyprohibited from practicing

law in thir State,

"Within

the meaning of this Section, all perronsfurnishing evidence

of or complying

with any of the following provisions &all be deemedae now liceneed to practicelaw within this State, viz:
"(a) That he ie now enrolled a8 an attorney-at-law before the SupremeCourt of this State. "(b) A licenseor the issuance of a license

by the Board of Legal Examiners of thfs State authorizing him to practicelaw within this State. "(c) A licenseor the 'leauance of a licenseto practicelaw within this State by any authority, which, at the time of the ienuancethereof,

was authorized

by the laws of thie State,then in effect,to issue the license."

Section4 of said State Bar Act authorfzee the SupremeCourt to prepare and proposerules and regulations for disciplining,

suspending

and dlsbarringattorneys

at law, which said rules and regulations were to be submitted to the members of the State Bar and a majority vote was required

to adopt any or all of said rules and regulations. Said Act also authorized the Supreme Court to prescribe a fee not exceeding Four Dollare ($4.00) per ennumper person to be paid to the Clerk of the SupremeCourt.

The rules governing the State Bar, which were approvedin accordance with the above statutes, providethat the membership fee prescrrbed

by the SupremeCourt shallbe due and payable by each member to the Clerk of the Supreme Court on June 1st of each fiscalyear, the fiscalyear beginning June let and endingMay jlst of the next succeeding year; that a member in default of paymentof said fee for sixty days after it was due Shall be regarded a6 delinquent

and shallbe given writtennotice thereof by the Clerk of the Supreme Court. Then, If the delinquent member fails to pay such fee within thirty days after said notice,he shall cease to be a member. Provisionis also made that if at the end of ninety days after June let a member has not paid to the Clerk membership

due for the current year the Clerkmay strike from the rolle of the State Bar the name of the delinquent member.

You state that Borne personshave been used a8 assistant countyattorneys

whose names do not appear in the Texas Legal Directory, or the record of the SupremeCourt, as being licensed and practicing

attorneys. We do not think that the failureto find the names of said assistants in the Legal Directory

would be sufficient evidence

to show that they were not authorized to hold such official positions. As to the names of such aselstantrr not being found in the recordsof the SupremeCourt,we think it would be necessary. . I

Hon. C. H. Cavness, page 20 

### (o-6676)

to ehow that the hereinabove referred

to rules had been followed and the name8 of euch aesiatante

droppedfrom the membership rolls in accordance therewith before it couldbe raid that aaid aaristentn shouldnot be conridered in connection

with the apportionment here under consideration.

If the abstracters, tax deputies

and clerksreferred to by you were liceneed

attorneys,

they should

be carried

aa aaaistants

but, if they were merelywhat such name6 imply,then they shouldnot be considered in connection with making said apportionments.

As to the use of the namee of stenographers, bookkeeper6

and investigatorsa8 "assistants" in arriving

at said apportionment, we agreewith the opinionof this department referred

to by you, addreared to the Comptroller under date of September 

### 15, 1936,

and It is our opinion that such ruling should be appliedto any of such employees whose name8 appear in the schedulesubmltted by you.

Article 3912e, Section13(b),which providesfor the apportionment here under consideration, does not fix any time for the paymentof euch apportionment into the County Officer-6 ' SalaryFund of each county, but we suggest that, since the Comptroller must necessarily

deal with two separateapproprlations in each calendar year, he handle same 88 followe:

Make the apportionments at the end of each four months'period and after proper statements have been made q

hewingthe actual aum61 paid out, the apportionments

to be made after December31et of any year to be for the preceding four months and to adjust any discrepanclee or errore in the allocation of the apportionments duringthe year ending on that date. The other times for the allocation

of such apportionments can be afterApril 30th and August 31st of each year, and to be made only after receiptof proper statements a8 to the 8ume actually paid out by each of said counties.

We find two other counties that were eligible

to share in these apportionments

for the years 1942, 1943 and 1944, a8 well a8 futureapportionments, viz: Montague County and Parker County. The 1940 populations of these counties

were 20,442and 

### 20,482, respectively,

and each of them had and has
a countyattorney

who performs

and Is performing

the duties of district attorney.

As to the effect of the Special FederalCensus in Jefferson County
on that county's

apportionment,

we refer you to our Opinion No. O-6499,a copy of which Is herewith enclosed. The apportionment of this county

will now be made on the basis of ita having a population in exce88 of 190,000.

We are unable to find any statute authorizing

the Comptroller

to make adjustments

of these apportionments where there have been overpayments
or under-payments

In past years. It is our opinionthat where any county or counties

have been underpaid in allocations

prior to the calendar year 1945, such error or error8 cannot be adjusted

out of a currentor futureapportlonment, aa all such appropriationa must be used for the year for which they are appropriated,

and it will be necessary for the Legislature to make a specific. *

.

Hon. C. H. Cavness, page 21 

### (o-6676)

appropriation

for such purpose. Where any countyhas received more in past apportionments

than It wan entitled to, it la our opinionthat the Statewould have a claim again& such county or countiee for the mm or mm 80 received.

Your attention

ir directed

to the following

law pannedby the laet Legirlature

which will likely affectthe amount of theae apportionments in the future:

SenateBill No. 123, Chap. 179, p. 

### 244, Vernon's

Texas Seasions



### Law Service,

which became effective May 9, 1945, and which amendsArticles3891, 3902, 3912e, Section

### 13 and 3912e, Section

### 15, authorizes the Commissioners' Court,under the conditions aud an therein eet forth,to increase the salaries of the officials

and deputies

therein

named a8 much a8 25s. This would include
some of the officials and aesirtants

here being considered.

Yours very truly,

APPROVEDOcT.31,

### 1945 , /a/ Carlo@ C. Ashley

FIRST ASSISTAIQ A!ITORNEY

GEUERAL / ATT-GEZERALOFTEXAS

By /s/~Jas.

W. Baasett Jan. W. Baesett Aqeist+nt

JwB:LJ:LY ; encls.

.

APPRO& OPINION COMMITCEB BY /a/ BWB CHAIRMAN