                          THE        ATTORNEY     GENERAI.
                                        OF TEXxU3

                                           July 6. 1987
JIM Mxl-cox
XlToRs’EY   OESERAL



             Ronorable Gary W. Rholes               Opinion No. M-738
             Shelby County Attorney
             104 Church Street                      Re: Authority of a county attorney to
             Center, Texas     75935                hire an investigator  without approval
                                                    of the commissioners court, where pay-
                                                    ment will be made solely      from funds
                                                    collected pursuant to article    53.08 of
                                                    the Code of Criminal Procedure

              Dear Mr. Rholes:

                    You ask about the authority     of a county attorney     to hire an
              investigator  without approval of the commissioners court when payment
              of the investigator’s    salary will be made solely from funds collected
              pursuant to article   53.08 of the Code of Criminal Procedure.

                    Pou note that funds collected          under article    53.08 are to be
              expended    “at   the  sole discretion   ~of the  attorney”   and that section
              41.102    of    the Government Code provides         that   a prosecutor     “may
              employ . . . investigators        . . . and other office     personnel   that in
              his judgment are required for the proper and efficient            operation   and
              administration      of the office.”     Your concern is prompted by section
              41.106(a)    of the Government Code which allows the prosecuting        attorney
              to fix     the salaries     of investigators     and other office      personnel
              “subject    to the approval of the commissioners court.”

                   Attorney General Opinion MW-439 (1982)           addressed the question of
              expenditures by a criminal district attorney          from the fund established
              by article  53.08. It states:

                             Article 53.08 of the Code of Criminal Procedure
                         authorizes   a county attorney,      district attorney,
                         or criminal district      attorney to collect  a fee if
                         his office     processes    a hot check under certain
                         circumstances.      It further provides that:

                                 (e)    Fees collected      under this article
                                 shall     be    deposited     in    the  county
                                 treasury     in    a special       fund  to   be
                                 administered      by the county attorney,
                                 district    attorney,    or criminal district
r?                               attorney.      Expenditures     from this fund
                                 shall be at the sole discretion          of the



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Ronorable   Gary W. Rholes    - Page 2     (JR-7381




                  attorney,    and may be used only to defray
                  the     salaries  and    expenses  of    the
                  prosecutor’s     office.   . . .  (Emphasis
                  added).

                This statute creates a special fund which is in
            the county treasury,      but which is segregated from
            other county funds and earmarked for a specific
            purpose.    More Importantly.         the statute    states
            that the fund is to be administered             by county
            attorneys,     district      attorneys,    and    criminal
            district   attorneys,    and that, within the limits
            set out therein, expenditures from the fund are to
            be made at their sole discretion.             The express
            enumeration of particular        persons or things in a
            statute is tantamount to an express exclusion             of
            all others.    Ex parte McIver, 586 S.W.2d 851 (Tex.
            Grim. App. 1979).       Thus, by virtue of the express
            language of the statute,          the hot check fund is
            explicitly     placed    beyond      the  reach    of    the
            commissioners court.

                By its terms, article       2368a applies only where
            a county acts ‘through its Commissioners Court.’
            It follows,      in our opinion,     that the statute    is
            not    triggered      unless,    in making a specific
            purchase, a county acts through its commissioners
            court.      Article     1659a does not      contain    this
            precise language, but it does state that contracts
            for the purchase of supplies and materials           are to
            be avarded to the party who ‘in the judgment of
            the Commissioners Court’ submits the lowest and
            best bid.     This is sufficient     to convince us that,
            like article       2368a, article   1659a does not come
            into play where a commissioners             court   is not
             involved with the purchase in question.

                 We have noted that article          53.08 gives      the
             exclusive   right to administer the hot check fund,
             and to     make purchases        from it,      to    county
             attorneys,      district   attorneys,      and    criminal
             district   attorneys.    Because commissioners courts
             are without any right to administer the fund or to
             be involved      in making expenditures      from it,     we
             conclude,    for the reasons set forth above. that
             articles   2368a and 1659a are inapplicable        in this
             purchasing context.      In this respect,    it should be
             noted that to conclude        that these statutes        are
             applicable     is to give     commissioners     courts     an
             indirect   means of controlling      the fund, a result
             contrary   to the express      terms of article        53.08



                                       p. 3437
Eoaorable   Gary W. Rholes - Page 3      (m-738)




            and. therefore,    to the legislature's    intent.     A
            conmissioners   court could, for example, refuse to
            accept any or all bids in a particular        instance
            and thus interfere   with the exclusive  right of the
            designated individuals    to administer the fund and
            to determine when, for what purposes,       and under
            what circumstances expenditures     will be made from
            it.

        Attorney General Opinion JM-313 (1985) expressly states that the
prosecuting      attorney way make expenditures   from the hot check fund to
hire staff without the prior authorization       of the commissioners court.
Since article        53.08 gives the exclusive   right to county attorneys,
district      attorneys   and criminal district  attorneys  in administering
the fund to defray the salaries           and expenses of the prosecutor's
office,     it is our opiaion that you may hire an investigator      and set
his salary without approval of the commissioners court where payment
of the salary is made from such fund.

                                  SUMMARY

                   Approval of the commissioners      court is not
            required     for   a county   attorney     to hire  an
            investigator      and set   his    salary    where the
            expenditure for same is derived solely from funds
            collected     under article  53.08    of the Code of
            Criminal Procedure.




                                              JIM        MATTOX
                                              Attorney    General of Texas

MARYKELLER
Executive Assistant    Attorney   General

JUDGEZOLLIE STUKLEY
Special Assistant Attorney     General

RICK GILPIN
Chairman, Opinion Committee

Prepared by Tom G. Davis
Assistant Attorney General




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