The Attorney General of Texas 

tfsy 23, 1985 

JIM MATTOX 

Attorney General 

Supreme Court Building 

P. 0. BOX 12546 

Austin, TX. 76711- 2546 

512i475.2501 

Telex 910,674-1367 

Telecopier 512/475-0266 

714 .tackson, suite 700 

Dallas, TX. 75202.4506 

2W742-0944 

4624 Alberta Ave.. Suite 160 

El Paso, TX. 79905-2793 

915/533-3484 

*- 

1 Texas, Suite 700 

, vmsto”, TX. 77002-3111 

7131223-W 

606 BroadwaY, Suite 312 

Lubbock, TX. 79401-3479 

606i747.5236 

4309 N. Tenth. Suite B 

McAllen, TX. 78601-1665 

5121662.4547 

MO Main Pena, suite 400 

San Antonio, TX. 76205.2797 

512l225-4191 

An Equal OpportUnitYI 

Affirmative Actlon Employer 

Ronorable Neal E. Binningham 

Caas County District Attorney 

P. 0. Box 555 

Linden, Texas 755 5:3 

Opinion No. JM-319 

Re: Whether a county is required 

to contribute to the compensation 

of a criminsl district attorney 

Dear Mr. Birmingham: 

You inform us that you were appointed to fill an unexpired term 

of the office of criminal district attorney of Cass County because of 

the resignation of the elected official. You also inform us that you 

requested, but were refused, a salary supplement in addition to the 

salary you receive from the state under article 332b-4, V.T.C.S. 

[hereinafter the Professional Prosecutors Act], from the Cass County 

commissioners court. You request the supplement to compensate you for 

civil work which in 'this case you performed for Cass County but which 

is normally performed by a county attorney. In that regard you first 

ask: 

Does the commissioners court have the discretion 

to refuse [to compensate the criminal district 

attorney for legal work performed as ,county 

attorney]" 

The office of C.ass County criminal district attorney ,was created 

by the legislature in 1955. See V.T.C.S. art. 326k-32, 41. Article 

326k-32, section 3, V.T.C.S., Eidas: 

Sec. 3. It shall be the duty of the Criminal 

District Attorney of Cass County, as herein 

provided, to be in attendance upon each tern and 

all sesaitms of the District Court of Cass County 

and all o:i the sessions and terns of the inferior 

courts of Caes County held for the transaction of 

criminal ‘business, and to exclusively' represent 

the State cf Texas in all criminal matters pending 

before saj.d courts and to represent Cass County in 

all matter:3 pending before such courts and any 

other court where Cass County has pending business 

of any kird. nature or interest and in addition to 

the specified powers given and the duties imposed 

upon him by this Act, all such powers, duties and 

privileges within Cass County as are now by law 

p. 1459 
Bonorable Neal E. Birmingham - Page 2 (JM-319) 

conferred or which may hereafter be conferred upon 

the district and county attorneys in the various 

counties and judicfal districts of this State. He 

shall collect such fees, commissions and perquisites as are now or hereafter may be provided by 

law for similar se:nrices rendered by district and 

county attorneys of this State. 

Thus, the criminal district .sttorney of Cass County is required to 

perform duties which are .u,rmally performed by both a district 

attorney and a county attorney. Under the provisions of article 

332b-1, V.T.C.S., the commissioners court of Cass County had 

permissive authority to p~.y its criminal district attorney any 

compensation it deemed advisable in addition to the salary paid the 

criminal district attorney by the state. See Acts 1977, 65th Leg., 

ch. 742, 01, at 1866. However, in 1983,the legislature amended 

article 332b-4, section 2, V.T.C.S., the Professional Prosecutors Act, 

to include the Cass County c.riminal district attorney in that act. 

See Acts 1983, 68th Leg., cl).. 789, $1, at 4624, eff. June 19, 1983. 

Section 3 of the Professional. Prosecutors Act provides: 

Sec. 3. Each district attorney governed by -- 

this Act shall receive from the state compensation 

equal to 90 percel;i: of the compensation that is 

Provided for a drstrict judge in the General 

Appropriations Act, Each commissioners court may 

supplement the district attorney's state salary, 

but shall in no event pay the district attorney an 

amount less than thlz compensation it provides its 

highest paid distr:.ct judge. (Emphasis added). 

V.T.C.S. art. 332b-4, 93. Accordingly, we conclude that the 

Professional Prosecutors Act is controlling in your situation. 

In response to your fire,t question, we believe that the Professional Prosecutors Act authorizes the Cass County commissioners court 

to refuse to compensate the criminal district attorney for legal work 

performed as county attorney. Cass County does not have an office of 

county attorney. The criminal district attorney is required to 

perform those duties along wf.th his duties as a criminal prosecutor. 

See V.T.C.S. art. 326k-32, !i3; Tex. Const., art. 5, $21; Neal v. 

Sheppard, 209 S.W.2d 388, 3X (Tex. Civ. App. - Texarkana 1948, writ 

ref'd). 

However, article 332b-l., section 3, V.T.C.S., as quoted above, 

permits the commissioners court to supplement the district attorney's 

state salary. We also note that article 332b-4, section 3, V.T.C.S., 

provides that a commissionc:rs court "may" supplement the district 

attorney's state salary. That term generally creates a discretionary 

and not a mandatory function.. See Matter of Estate of Minnick, 653 

S.W.2d 503 (Tex. Civ. App. - Amamo 1983, no writ). To construe the 

p. 1460 
Honorable Neal E. Birmingham - Page 3 (JM-319) 

,- 

- 

term "may" in this context as discretionary would be consistent with 

section 6, which implies that the local supplementation of the 

district attorney's salary is not necessary to give effect to the 

purpose of the statute. V.T.C.S. art. 332b-4, 66. Thus, the Cass 

County commissioners court nay refuse to supplement the salary of the 

criminal district attorney, even though his duties include civil work 

normally performed by a cour,ty attorney. 

You next ask: 

Does the commissioners court have the discretion 

to set any amount,, *, a dollar a year, or must 

it pay a rea1isi:j.c amount consistent with the 

duties performed? 

As indicated above, the Professional Prosecutors Act is controlling as to the compensation of the criminal district attorney in 

Cass County. The only provision in the act establishing a criterion 

as to the amount of salary supplement the commissioners court may 

provide the criminal distrjct attorney is found in section 3, which 

provides in part: 

Each commissionerl; court may supplement the district attorney's sitate salary, but shall in no 

event pay the district attorney an amount less 

than the compensat:on it provides its highest paid 

district judge. (Emphasis added). 

V.T.C.S. art. 332b-4, 93. Thus, the minimum amount the commissioners 

court may supplement is set by the amount it determines to supplement 

the salary of its highest pr.i,district judge. 

You inform us that Caris County has only one district judge and 

that the only supplement by the commissioners court to the judge's 

state salary is $100.00 pr:r month for serving as a member of the 

juvenile board. This office has previously held that, in computing a 

district attorney's supplementary salary, a county must include any 

supplement it pays district judges for services on the juvenile board. 

See Attorney General Opinion MN-87 (1979). Therefore, we conclude 

that, should the Cass Count:7 commissioners court decide to supplement 

the criminal district attorazy's state salary under the circumstances 

you describe in your requ?:;t, it must provide him not less .than 

$100.00 per month. 

SUMMARY 

Article 332b-4, section 3, V.T.C.S., does not 

require a commisc;ioners court to supplement the 

salary of a crj.minal district attorney whose 

duties include lelcal work normally performed by a 

county attorney in counties having the official. 

p. 1461 
Eonorable Neal E. Birmingham - Page 4 (JM-319) 

Article 332b-4, section 3, V.T.C.S., does require 

a minimum amount by which a county commissioners 

court may supplenent the state salary of a 

criminal district a,ttorney. 

JIM MATTOX 

Attorney General of Texas 

TOM GREEN 

First Assistant Attorney General 

DAVID R. RICBARDS 

Executive Assistant Attorney General 

ROBERT GRAY 

Special Assistant Attorney Goneral 

RICK GILPIN 

Chairman, Opinion Committee 

Prepared by Tony Guillory 

Assistant Attorney General 

APPROVED: 

OPINION COMMITT.EE 

Rick Gilpin, Chairman 

Susan Garrison 

Tony Guillory 

Jim Moellinger 

Jennifer Riggs 

Nancy Sutton 

p. 1462