                                              KEN PAXTON
                                         ATTORNEY GENERAL OF TEXAS




                                             December 12, 2016



Ms. Jennifer D. Robison                                      Opinion No. KP-0121
Brown County Auditor
200 South Broadway                                           Re: Authority of county attorneys regarding
Brownwood, Texas 76801                                       payments made in conjunction with pretrial
                                                             diversion agreements (RQ-0111-KP)
The Honorable Shane Britton
Brown County Attorney
Brown County Courthouse
200 South Broadway
Brownwood, Texas 76801

Dear Ms. Robison and Mr. Britton:

        You both ask questions about the Brown County Attorney's authority to accept "gifts and
grants" under section 45.125 of the Government Code in conjunction with pretrial diversion
agreements, and the proper handling of such funds so received. 1 See TEX. Gov'TCODE § 45.125.
A pretrial diversion agreement is an agreement whereby the State agrees to postpone the trial date
while an accused performs certain conditions and, if the accused successfully completes the
conditions, to dismiss the charges. Fischer v. State, 832 S.W.2d 641, 643-44 (Tex. App.-
Corpus Christi 1992, no writ). Pretrial diversion programs are also referred to as pretria~
intervention programs. See In re R.B., 361 S.W.3d 184, 189 n.5 (Tex. App.-El Paso 2012, pet.
denied); Tex. Att'y Gen. Op. No. GA-0114 (2003) at 2 & n.2. While they differ about specific
facts, both request letters state that the county attorney's office has entered into pretrial diversion
agreements requiring an accused to make a "donation" to the office, and that funds have been
transferred from the donation account to the hot-check fund and used to compensate employees of
the office. Auditor Request Letter at 3-4; Cty. Att'y Request Letter at 9, 12-14. The Auditor
Request Letter first asks whether section 45.125 of the Government Code authorizes the Brown
County Attorney to agree with an accused "in misdemeanor criminal cases to refrain from
prosecuting a violation of law if the [accused] agrees to 'donate' or otherwise pay money to the



         'See generally Letter & Brief from Ms. Jennifer D. Robison, Brown Cty. Auditor, to Honorable Ken Paxton,
Tex. Att'y Gen. (June 14, 2016), ("Auditor Request Letter"); Letter from Honorable Shane Britton, Brown Cty. Att'y,
to Ken Paxton, Tex. Att'y Gen. (July 28, 2016) ("Cty. Att'y Request Letter"), https://www.
texasattomeygeneral.gov/opinion/requests-for-opinion-rqs.
Ms. Jennifer D. Robison                                (KP-0121)
The Honorable Shane Britton
Page 2



Brown County Attorney as part of pretrial diversion agreements with his office." Auditor Request
Letter at 1. 2

        Prosecuting attorneys may accept gifts and grants only as authorized by statute. Tex. Att'y
Gen. Op. No. GA-0562 (2001) at 2 (noting that commissioners courts are authorized to receive
gifts and grants for prosecutorial purposes). Section 45.125 of the Government Code provides:

                      The county attorney of Brown County or the Commissioners
                      Court of Brown County may accept gifts or grants from any
                      individual, partnership, corporation, trust, foundation,
                      association, or governmental entity for the purpose of financing
                      or assisting the operation of the office of county attorney in
                      Brown County. The county attorney shall account for and report
                      to the county auditor all gifts and grants accepted under this
                      section.

TEX. Gov'T CODE§ 45.125. The statute does not define "gifts or grants." The ordinary meaning
of a gift is "a voluntary transfer of property to another made gratuitously and without
consideration." Magness v. Magness, 241S.W.3d910, 912 (Tex. App.-Dallas 2007, pet. denied);
see also Pankhurst v. Weitinger & Tucker, 850 S.W.2d 726, 730 (Tex. App.-Corpus Christi 1993,
writ denied) (stating that a "[l]ack of consideration is an essential characteristic of a gift such that
an exchange of consideration precludes a gift"). The word "grant" has several common meanings,
including a gift for a particular purpose or a conveyance or transfer of property or rights. 3 A
monetary payment in exchange for a promise to dismiss criminal charges may constitute an
exchange of consideration that is not consistent with the ordinary meanings of either "gift" or
"grant." Further, even assuming that a gift or grant may include contractual consideration, section




         2
          The Auditor Request Letter suggests that the pretrial diversion agreements may contravene certain penal
statutes. Auditor Request Letter at 9. Without reference to the facts alleged in the letter, the payment of money by
an accused in exchange for a prosecuting attorney's favorable treatment in a criminal matter involving the accused
can in some circumstances constitute a violation of section 36.02 of the Penal Code. See TEX. PENAL CODE
§ 36.02(a)(2); Bush v. State, 722 S. W.2d 41, 44 (Tex. App.-Eastland 1986, pet. granted) (holding that payment of
cash to a district attorney in exchange for a probated sentence constitutes bribery under section 36.02), ajf'd, 773
S. W.2d 297 (Tex. Crim. App. 1989). Also, a prosecuting attorney's acceptance of such a payment in particular
circumstances could constitute a violation of section 36.08. See TEX. PENAL CODE § 36.08 ("Gift to Public Servant
by Person Subject to His Jurisdiction"). However, whether a crime has occurred in specific circumstances is a
question of fact that cannot be resolved in the opinion process. Tex. Att'y Gen. Op. No. GA-0956 (2012) at 3.

         3
          See MERRIAM-WEBSTER'S COLLEGIATE DICTIONARY 545 (11th ed. 2004) (definitions including"]: the act
of granting 2: something granted; esp.: a gift (as of land or money) for a particular purpose 3a: a transfer of property
by deed or writing); NEW OXFORD AM. DICTIONARY 756 (3d ed. 2010) (definitions including "a sum of money given
by an organization, esp. a government, for a particular purpose[;] a legal conveyance or formal conferment"); see
also Traylor v. State, 36 S. W.2d 506, 507 (Tex. Crim. App. 1930) (stating that as a verb, '"[g]rant' means 'to bestow;
to confer"').
Ms. Jennifer D. Robison                       (KP-0121)
The Honorable Shane Britton
Page 3



45.125 does not address pretrial intervention agreements or the county attorney's authority to
condition dismissal of criminal charges on the accused's payment of money to the county attorney.

       Other statutes regulate aspects of pretrial intervention agreements. Section 76.011 of the
Government Code authorizes a community supervision and corrections department
("Department") to operate a program for "the supervision and rehabilitation of persons in pretrial
intervention programs." TEX. Gov'T CODE § 76.01 l(a). A defendant participating in such a
program may be required to pay to the court a Department supervision fee in an amount not more
than $60 per month and a payment for certain other expenses. TEX. CODE CRIM. PROC. art.
102.012(a)-(b). Separately, article 102.0121 of the Code of Criminal Procedure provides for
another fee related to a pretrial intervention program:

               (a) A district attorney, criminal district attorney, or county attorney
                   may collect a fee in an amount not to exceed $500 to be used to
                   reimburse a county for expenses, including expenses of the
                   district attorney's, criminal district attorney's, or county
                   attorney's office, related to a defendant's participation m a
                   pretrial intervention program offered in that county.

               (b) The district attorney, criminal district attorney, or county
                   attorney may collect the fee from any defendant who participates
                   in a pretrial intervention program administered in any part by the
                   attorney's office.

               (c) Fees collected under this article shall be deposited in the county
                   treasury in a special fund to be used solely to administer the
                   pretrial intervention program. An expenditure from the fund
                   may be made only in accordance with a budget approved by the
                   commissioners court.

Id. art. 102.0121. By expressly authorizing a prosecutorial fee for a pretrial intervention
agreement, limiting its amount, and restricting its use to the prosecuting attorney's pretrial
intervention expenses, article 102.0121 precludes requiring additional prosecutorial payments for
pretrial intervention no matter how they are characterized. See United Servs. Auto. Ass 'n v. Brite,
215 S.W.3d 400, 403 (Tex. 2007) (explaining the doctrine of statutory construction that an express
inclusion of one thing excludes other things not expressly included). A court would likely
conclude that section 45.125 of the Government Code does not authorize the Brown County
Attorney's office to require an accused to pay an amount to that office as a condition of a pretrial
intervention agreement in excess of or in addition to the fee authorized by article 102.0121 of the
Ms. Jennifer D. Robison                                (KP-0121)
The Honorable Shane Britton
Page4



Code of Criminal Procedure. 4 See Tex. Att'y Gen. Op. No. JC-0042 (1999) at 1 (stating that
"[a]lthough a prosecutor has broad discretion to refrain from prosecuting a violation of the law
that occurs within his or her jurisdiction, a prosecutor may not require an offender to contribute
money to a public or private entity in consideration of the prosecutor's decision not to prosecute").

       The Auditor's Request Letter asks whether a judge may order "defendants in misdemeanor
criminal cases to make 'donations' to the Brown County Attorney as part of a pretrial diversion
agreement with his office." Auditor Request Letter at 1. Section 103.021(22) of the Government
Code authorizes a court to order a defendant to pay pretrial intervention program administrative
fees under article 102.0121 of the Code of Criminal Procedure. See TEX. Gov'T CODE
§ 103.021(22); TEX. CODE CRIM. PROC. art. 102.0121. We are not aware of any statute that would
authorize a criminal court to order a defendant to make a gift or grant under section 45.125 of the
Government Code.

        The County Attorney's Request Letter asks what expenditures are "appropriate" (i.e.,
authorized) for funds received under section 45.125 of the Government Code and under article
102.0121 of the Code of Criminal Procedure. Cty. Att'y Request Letter at 15. Section 45.125
authorizes the Brown County Attorney to receive gifts and grants only "for the purpose of
financing or assisting the operation of the office of county attorney in Brown County" and thus the
authority to expend the funds is limited to the stated purpose. TEX. Gov'T CODE§ 45.125. The
fee in article 102.0121 is for expenses of a prosecuting attorney's office "related to a defendant's
participation in a pretrial intervention program offered in that county," and may be expended "only
in accordance with a budget approved by the commissioners court." TEX. CODE CRIM. PROC. art.
102.0121(a), (c); see also Tex. Att'y Gen. Op. No. GA-1039 (2014) at 2 (discussing the propriety
of expenditures under art. 102.0121).

        The County Attorney's Request Letter further asks "[w]ho has the ultimate authority or
control of the disposition of' the gifts and grants received under section 45.125 of the Government
Code and whether such funds should be placed in the county's general fund or a separate donation
fund. Cty. Att'y Request Letter at 15. Section 45.125 does not address the control or disposition
of gifts and grants, except that the county attorney must "account for and report to the county
auditor all gifts and grants accepted." See TEX. Gov'T CODE § 45.125. Generally, an officer who
receives funds belonging to the county must deposit the funds with the county treasurer, who "shall
deposit the money in the county depository in the proper fund to the credit of the person or
department collecting the money." TEX. Loe. Gov'T CODE § 113.021(b). The county attorney
has not been expressly authorized to make expenditures from a section 45.125 donation fund,
unlike the authority granted to an attorney under chapter 102 of the Code of Criminal Procedure
to administer the hot-check fund and make expenditures at the attorney's sole discretion. See TEX.


         4
          The County Attorney's Request Letter cites to legislative history of section 45.125 to argue that the purpose
of granting additional authority to receive gifts and grants was to transfer some of the expense of the county attorney's
office from the taxpayers to "Brown County offenders" as part of a pretrial intervention program. Cty. Att'y Request
Letter at 7-8. However, "the intent of the Legislature is derived from the language it finally enacted," not from
statements made during the legislative process. Tex. Mut. Ins. Co. v. Ruttiger, 3 81 S. W.3d 430, 453 (Tex. 2012).
Ms. Jennifer D. Robison                       (KP-0121)
The Honorable Shane Britton
Page 5



CODE CRIM. PROC. art. 102.007(£). While the issue is one of first impression, a court would likely
conclude that the commissioners court, as the county's budgetary body, is responsible for the
approval of expenditures from gifts and grants received under section 45.125 of the Government
Code. See TEX. Gov'T CODE § 45.125; TEX. Loe. Gov'T CODE §§ 111.0706 (requiring a
commissioners court to adopt a special budget for spending "grant or aid money for its intended
purpose"), 113 .041 (a) (commissioners court's approval of disbursements); Hooten v. Enriquez,
863 S.W.2d 522, 529 (Tex. App.-El Paso 1993, no writ) ("Generally, the allocation of county
funds is a policy-making determination left to the sound discretion of the commissioners court.").

          Finally, both request letters ask whether gifts and grants received under section 45.125 of
the Government Code may be transferred to and comingled with the county attorney's hot-check
fund established pursuant to chapter 102 of the Code of Criminal Procedure. Auditor request
Letter at 1; Cty. Att'y Request Letter at 15. The commissioners court possesses authority to
transfer amounts between budget items by budget amendment. See TEX. Loe. Gov'T CODE
§ l l l .070(c). But while amounts in the hot-check fund and the account for county attorney gifts
and grants serve similar purposes, they are subject to different statutory requirements. Under
article 102.007 of the Code of Criminal Procedure, fees for collecting and processing a check or
other similar sight order are to be segregated in a special fund, expended at the prosecuting
attorney's sole discretion, and "used only to defray the salaries and expenses of the prosecutor's
office" other than the prosecuting attorney's own salary. TEX. CODE CRIM. PROC. art. 102.007(£).
Gifts and grants under section 45.125 of the Government Code are also to be used for the
operations of the Brown County Attorney's office but, as noted above, expenditures are likely
subject to commissioners court approval. We are not aware of any statute that authorizes the
comingling of funds of a different character. Accordingly, a court would likely conclude that a
county is not authorized to comingle gifts or grants received under section 45 .125 of the
Government Code with the special fund under article 102.007 of the Code of Criminal Procedure.
Ms. Jennifer D. Robison                     (KP-0121)
The Honorable Shane Britton
Page 6



                                     SUMMARY
                       Section 45.125 of the Government Code authorizes the
              Brown County Attorney to receive gifts and grants limited to the
              purpose of financing or assisting the operation of the attorney's
              office. A court would likely conclude that section 45.125 does not
              authorize the Brown County Attorney's office to require an accused
              to pay an amount to that office as a condition of a pretrial
              intervention agreement in addition to or in excess of the fee
              authorized by article 102.0121 of the Code of Criminal Procedure.
              No statute authorizes a criminal court to order a defendant to pay a
              gift or grant under section 45.125 of the Government Code.
                       Gifts or grants received under section 45.125 of the
              Government Code are limited to financing or assisting the operation
              of the Brown County Attorney's office. The fee authorized by
              article 102.0121 of the Code of Criminal Procedure may be used
              only for the expenses of a prosecuting attorney's office related to a
              defendant's participation in a pretrial intervention program offered
              in that county.
                     The county commissioners court has ultimate authority over
              the disposition of funds received under section 45.125 of the
              Government Code. Funds received under that statute may not be
              comingled with or transferred to the hot-check fund established
              under article 102.007 of the Code of Criminal Procedure.

                                            Very truly yours,




                                            KEN PAXTON
                                            Attorney General of Texas

JEFFREY C. MATEER
First Assistant Attorney General
BRANTLEY STARR
Deputy First Assistant Attorney General

VIRGINIA K. HOELSCHER
Chair, Opinion Committee
WILLIAM A. HILL
Assistant Attorney General, Opinion Committee
