I




    .JlX   3lATTOX                          December 10, 1990


                     Honorable John D. Hughes      Opinion No.   JM-1253
                     County Attorney
                     Hood County Courthouse        Re:   Whether a prosecutor may
                       Room 6                      use drug seizure funds to pay
                     Granbury, Texas 76048         bonuses or increase salaries
                                                   without approval of the   com-
                                                   missioners court  (RQ-2078)

                     Dear Mr. Hughes:

                          You ask whether a prosecuting attorney may use drug
                     seizure  funds to pay bonuses     or increase   salaries  of
                     employees without   fixst obtaining the approval     of the
                     commissioners court. You also ask if it would constitute   a
                     violation of the criminal  law if a prosecutor were to pay
                     bonuses or salary increases to employees     without  having
                     obtained the approval of the commissioners court.

                          Article  59.06 of the Code of Criminal       Procedure,
                     adopted by Acts 1989, 71st Leg., 1st C.S., ch. 12, § 1, at
                     14, and    effective  October   18   1989,   addresses   the
                     disposition of forfeited property. i Section (d) of article
                     59.06 provides:

                                Proceeds awarded under this ChaDter to a
                             law enforcement  aoencv or to the attorney



                          1. Forfeiture provisions prior to the 71st Legislature
                     were contained in article, 4476-15, V.T.C.S., the Texas Con-
                     trolled Substances Act. See Attorney General Opinion JM-678
                     (1987). The Texas Controlled Substances Act was codified  as
                     part of the Health and Safety Code (effective September   1,
                     1989). &g Health & Safety Code, Acts 1989, 71st Leg., ch.
                     678, 5 1, at 2230. This was a non-substantive codification.
                     However, each of the codified    forfeiture provisions   was
                     repealed, effective October 18, 1989. See Acts 1989, 71st
                     Leg., 1st C.S., ch. 12, § 6, at 21. New statutes dealing
                     with the same subject matter, which are substantially
                     different  from the    repealed Controlled   Substance   Act
                     provisions, were enacted as articles 59.02, 59.05, 59.06 and
                     59.08 of the Code of Criminal Procedure. Id.      § 1.   See
                     State v. Garcia, Docket No. 04-89-00194~CV, Tex. App. - San
                     Antonio, October 3, 1990 (unreported).


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Honorable John D. Hughes - Page 2    (JM-1253)



        reoresentina the state mav be soent bv the
        aaencv or the attornev after a budaet for the
        exnenditure   of    the   Droceeds    has     been
        submitted to the co issioners Court             or
        aovernina   bodv of t:      municiDality.      The
        budget must be detailed and clearly list and
        define the categories of expenditures,         but
        may not list details that would endanger       the
        security of an investigation or prosecution.
        Expenditures are subject to audit provisions
        established under this article.       A commis-
        sioners court or governing body of a munici-
        pality may not use the existence of an award
        to offset or decrease total salaries,          ex-
        penses, and allowances that the agency or the
        attorney   receives   from the     commissioners
        court or governing body at or after the time
        the proceeds are awarded. The head of the
        aoencv or attornev reoresentina the state may
        not use the existence of an award to increase
        a salarv. exnense. or allowance         for     an
           DlOV    f  the attornev   or  aaencv   who   is
        ~~daet~~ 'bv the      commissioners   court     or
        aovernina bodv unless the commissioners court
        or aovernina bodv first aonroves the exnendi-
        w.      (Emphasis added.)

     you advise that bonuses are given for achievement  to
employees and that employees are paid from budgeted county
funds.

     Article 59.06(d) expressly provides    that an attorney
representing the state may not use drug forfeiture funds to
increase a "salary, expense, or allowance for an employee of
the attorney or agency who is budgeted by the commissioners
court . . . unless    the   commissioners   court . . . first
approves the expenditure."   We believe that the payment   of
any  additional    compensation  to   an  employee   in   the
prosecutor's office who is budgeted by the commissioners
court is contingent upon the commissioners court's approval.

     In light of your relating that bonuses are given       for
achievement, there is also a constitutional        prohibition
relevant to their payment.     Bonuses   for achievement    are
compensation  for services     rendered.    Attorney   General
Opinion JW-313 (1985) concluded that a prosecuting    attorney
may not pay bonuses   from the "hot check" fund despite     the
fact that article   53.08 of the Code of Criminal    Procedure
(now article 102.007 of said code) permits the prosecuting
attorney sole discretion    in using such funds to defray
salaries and expenses in his office.       It was noted that
article III, section 53, of the Texas Constitution prohibits
the paying of extra compensation to a public officer, agent,
servant or contractor for services after they have been
rendered. A bonus may be paid to a county employee only      if


                               P. 6677
Honorable John D. Hughes - Page 3    (JM-1253)



the commissioners court has approved the bonus plan as part
of compensation  before the services are rendered.       See
Attorney General Opinions JM-459 (1986): H-786 (1976); H-402
(1974).

     You also ask if it would constitute a violation of the
criminal law if a prosecuting attorney uses drug seizure
funds to pay bonuses or salaries under the circumstances you
have related without having obtained the approval of the
commissioners  court.   You do not refer to a specific
provision of criminal  law. The resolution   of whether   the
circumstances you have related constitutes   a violation   of
any provision of the criminal law involves the determination
of factual issues and does not come within the province    of
the opinion process.

                       SUMMARY
           The payment of any additional compensation
        from the drug forfeiture funds to employees
        in the prosecutor's office whose salaries are
        budgeted by the commissioners court is con-
        tingent upon approval of the commissioners
        court. Payments for services rendered in the
        form of bonuses are prohibited    by article
        III, section 53, of the Texas Constitution,
        unless the bonus plan is approved as part of
        a compensation    before  the services     are
        rendered.



                                    l-l /Ni%%
                                     Very truly yo r ,

                                          A;,
                                     JIM     MATTOX
                                     Attorney General of Texas

MARY KELLER
First Assistant Attorney General

LOU MCCREARY
Executive Assistant Attorney General

JUDGE ZOLLIE STEAKLKY
Special Assistant Attorney General

RENEA HICKS
Special Assistant Attorney General

RICK GILPIN
Chairman, opinion Committee

Prepared by Tom G. Davis
Assistant Attorney General


                              P. 6678
