# The Attorney General ofTexas
tfsy 23, 1985 JIM MATTOX Attorney General

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An Equal OpportUnitYI Affirmative Actlon Employer RonorableNeal E. Binningham Caas CountyDistrictAttorney P. 0. Box 555 Linden, Texas 755 5:3 OpinionNo. JM-319

Re: Whether a county is required to contribute to the compensation of a criminsldistrict 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 resignationof the elected official. You also inform us thatyou 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 commissionerscourt. You request the supplementto compensateyou for civilwork which in 'this case you performed for Cass Countybut which is normally performedby a county attorney. In that regardyou 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 ,wascreated 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** sessionsand 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 criminalmatters pending before saj.d

courtsand to representCass County in all matter:3pending before such courts and any other courtwhere Cass Countyhas pendingbusiness of any kird. nature or interestand in addition to the specifiedpowers 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. 1459BonorableNeal E. Birmingham - Page 2 (JM-319)

conferredorwhich may hereafterbe conferredupon the district and county attorneys in the various countiesand judicfaldistrictsof this State. He shall collect such fees, commissions and perquisites as are now or hereafter may be provided by law for similar se:nrices renderedby district and countyattorneys of this State.

**Thus,** the criminal district .sttorneyof Cass County is required to perform duties which are .u,rmallyperformed 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 ProfessionalProsecutorsAct, to include the Cass County c.riminaldistrict attorney in that act. See Acts 1983, 68th Leg., cl).. 789, $1, at 4624, eff. June 19, 1983. Section 3 of the Professional. ProsecutorsAct provides:

Sec. 3. Each district attorney governed by

-- thisAct shallreceive from the state compensation equal to 90 percel;i: of the compensation that is Provided for a drstrict judge in the General AppropriationsAct, Each commissioners court may supplement the district attorney's state salary, but shall in no eventpay the districtattorney an amount less than thlzcompensation it provides its highest paid distr:.ct judge. (Emphasisadded).

V.T.C.S. art. 332b-4, 93. Accordingly, we conclude that the ProfessionalProsecutorsAct is controlling inyour situation.

In response to your fire,tquestion, we believe that the Professional Prosecutors Act authorizes the Cass County commissionerscourt to refuse to compensate the criminal district attorney for legalwork 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.thhis 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 commissionerscourt 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:rscourt "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

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,-

- term "may" in this context as discretionarywould be consistentwith

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 commissionerscourt nay refuse to supplement the salary of the criminal district attorney, even thoughhis duties include civilwork normallyperformedby 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 sitatesalary, but shall in no event pay the district attorney an amount less than the compensat:onit provides itshighest paid district judge. (Emphasisadded).

V.T.C.S. art. 332b-4, 93. Thus, theminimum amount the commissioners courtmay supplement is set by the amount it determines to supplement the salary of itshighest pr.i,d istrict judge.

You inform us that CarisCounty has only one district judge and that the only supplement by the commissioners court to the judge's state salary is $100.00 pr:rmonth for serving as a member of the juvenileboard. 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 juvenileboard. See Attorney General Opinion MN-87 (1979). Therefore, we conclude that, should the Cass Count:7commissioners 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 $100.00permonth.

SUMMARY

Article 332b-4, section 3, V.T.C.S., does not require a commisc;ionerscourt to supplement the salary of a crj.minaldistrict attorney whose duties include lelcal work normally performed by a county attorney in counties having the official.

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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 districta,ttorney.

JIM MATTOX Attorney General of Texas

TOM GREEN FirstAssistantAttorney General

DAVID R. RICBARDS ExecutiveAssistantAttorney General

ROBERT GRAY SpecialAssistantAttorney Goneral

RICK GILPIN Chairman,Opinion Committee Preparedby Tony Guillory AssistantAttorney General

APPROVED: OPINION COMMITT.EE
Rick Gilpin, Chairman Susan Garrison Tony Guillory JimMoellinger JenniferRiggs Nancy Sutton

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