The Honorable Harold Hollingsworth Opinion No. H- 473 Criminal District Attorney Kaufman %ounty Re: Eligi.bi1it.y of Criminal Kaufman, Texas ,’ 75142 DistrictAttorney ,tobe 

### a member of ‘State Retirement System. Dear Mr. Hdllingsworth: .: .~

You,have requested an opinion as to whether the Criminal District Attorney ofKaufman County is erigible to participate in, &he Employees Retirement System of Texas established by,article 6228a, V. Ti C.S. which’provides in section 3 (B) (1): The memtiership of said Retirement System shall be composed of any elective Stkte official or appointee in an elertive office of the state; including all elected or appoi.ntrd members of State Legislature, and District Attorneys receiving salaries paid

‘bythe State from the State General Revenues Fund, but shall not include any elective official’in the Judicial, Education, District, or County, of the Statueof Texas other than those expressed eligibk as provi.ded herein. Thu.s, to be el,igible for the Retirement program the Criminal .District Attorney must be a “District Attorney” and be receiving a salary paid by theState from the General Revenue Fund. ~”

The Supreme Court of Texas in Hill Countv v. Sheppard, 17’8 S.W. 2d 261 (Tex. Sup. 1944) defined the= “criminal district attorney”:

p. 2157

.The Honorable Harold Hollingsworth page 2 (H-473)

. *
. it is,our opinion that the term criminal district attorney refers to a class or kind of district attorneys, and that a criminal di,strict attorney is a district attorney within the meaning ofthe Constitution. The’ office of District Attorney, including that of c.riminal district attorricy, is a constitutional office, ,the duties and compensation ofwhich are provided for in Article V, Se,ction 21, of the Constitution
. .’
. . 178S.W. 2d at 263. See also: -- 

### N@aI v. Sheppard, 209 S.W. 2d 388 (Texy Civ. App. --T;exarkana .1948, writ ref.),; and 20 TEX. JUR. 2d District Attorney $1 (1960 ed).

Under the,provisions of articl,e 326k-71, which created, ,the office of,the Criminal Dis,t.rict Attorney ofKaufman 

### County, ..the Criminal District Attorney’s 

### salary is paid out of both .state and county funds. Section 4, of .:articli 326k-71 provi.des: The Crimi’nal District Attorney of Kaufman Count9 shall be commissioned by the governor, and shall, receive as compensation arrannual salary payable in ,equal, monthly installment,s... ,The salary shall include the amount, equ,al,to ,the,amount paid dii trict attorneys by the State of Texas,,.and shall. be paid by the comptroller of public accounts, as,appro,p.riated by the legi.slature. In.addition, the Cri.minal DistrLct Attorney of Kaufman County shaI1 be.paid.in e~ial bimonthly installments out of the oHicers’ salary fund ofKaufman County an amount ” which, when added to the amount paid by the State 0 Texas, equals an amount not less than 90p,ercent of.the total .sa,i,a:ries paid to the Judg,e of th,,e86,thJudickal Di,st’rict

‘by the State .of.Tesas and Kaumnm, ‘VanZandt, ‘and Rockwall ccunties~ In Attorney .General Opj,ni,on M-10,87 (197.2)this ~pffice held that:,a -,+Zr?minal :Z&stcict ~~t.or~~~~~,,.pa%.il. e,nWe,l~yfrom s++,te~fund.s.was eligible to~particl.pate in the state retirement program auiho~rized by,article

p. 21.58I I (

. c 2 The Honorable Harold Hollingsworth page 3 (H-473)

6228a. Similarly it is our opinion that the Criminal District Attorney of Kaufman County is eligible to participate in the Employees Retirement System of Texas established by article 6228a to the extent of the amount ofhis salary paid by the state. This conclusion is in accordance with the general program outlined in article 6228g providing for a County and District ,Retirement System. See - section 11(A)(1) of article 6228g, entitled “optional coverage of employees receiving supplemental compensation from participating counties” and providing that The governing body of any participating ccunty which ,Rays compensation from county funds to a person reg,ularly engaged in the performance of the duties of an elective or appointive State or district office in addition to,that.received from the State of Texas, may by order of the governing body p,rovide that the persons shall ba considered em,ployees of the county, and as such eligible for membership in the~system to the extent of.the compensation paid the person by the county.

SUMMARY The Criminal Di.strict Attorney ofKaufman ~County is eligible to participate in the Employees

-Retirement System’establjsbad by article 6228a, V. T. C.S., to the extent ot the amount ofhis salary paid by the state.

C. ROBERT HEATH, Chairman Opinion Committee

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