                                 The Attorne,y General of Texas
                                                     May 1, 1985
JIM MATTOX
Attorney General



Supreme Cowl Building          Honorable Oscar H. Ilsuzy                              Opinion No. JM-313
P. 0. Box 12548                Chairman
Aus!in. TX. 70711.2348         Committee on Jurisprudence                             Re: Use of the “bad check fund”
512,4752501                    Texas State Senote                                     under article    53.08 of the Code
Telex 9101074-1367
Telecopier 512/4754266
                               P. 0. Box 12068,  Capi.tol Station                     of Criminal Procedure by a dis-
                               Austin,  Texas   78711                                 trict attorney,    county attorney,
                                                                                      or criminal   district   attorney
714 Jackson, Suite 700
Dallas, TX. 75202.4506
                               Dear Senator Mausy:
2141742.8944

                                      Article    53.08 of the Code of Criminal Procedure authorizes                       the
4824 Alberta Ave.. Suite 160   county attorney,        d:lstrict    attorney,        or criminal        district    attorney
El Paso. 7X. 79905-2793        [hereinafter      attorney]     to collect      fees from persons who have passed
91515333404                    “bad checks” and est.a.blishes a special               fund in the county treasury in
                               which the fees must be deposited.                  Under    article     53.08,    the fund is
’      Texas. Suite 700        administered      by the attorney      rather      than    by the county commissioners
I,   ,ton, TX. 77002CNll       court.      You ask r;everal         questions         about     the     propriety    of    the
713/223-5886                   attorney’s      making specific     types of expenditures             from the fund.      Most
                               of the      disbursemen,:s     about which you inquire                 relate     to specific
                               expenses      of the prmecutor’s          office,       including       payment for office
006 Broadway. Suits 312
Lubbock. TX. 79401.3479
                               supplies     and equipment, for the salaries             of various employees, and for
0061747.5238                   certain    “bonus” expc!nse allowances            and salary supplements,            You also
                               ask generally       wheth’zc the attorney          must obtain the approval            of the
                               commissioners      court prior to making expenditures                 from the fund.      Both
 4309 N. TsnIh. Suite S
                               this general       question     and your specific           questions,      however, depend
 McAllen. TX. 78501.1685
 5121682-4547                  upon the scope of the statutory             authority       granted to the attorney by
                               article    53.08.     Accordingly,    a basic explanation            of the provision     must
                               precede our response ‘to your specific               questions.
 200 Main Plaza. Suite 400
 Son Antonio. TX. 78205-2797
                                      Article    53.08   p,rovides,        in part:
 512m5.4191

                                                 (e)    Fetzs collected    under this article     shall be
 An Equal OpportunitYl                       deposited     :in the county treasury in a special        fund
 Allirmative Action Employer                 to    be    a6$nistered       by    the    county   attorney.
                                             district     at’torney,   or criminal district      attorney.
                                             Expenditur@        from this fund shall be at the sole
                                             discretion      of the attorney,      and msy be used only
                                             to defrfy ?he salaries          and expenses of the pro-
                                             secutor    s l>.ffice,   but in no event may the county
                                             attorney,     &trict      attorney,     or criminal district
                                             attorney     sceplement     his or her own salary         from
                                             this fund.       Nothing in this Act shall be construed



                                                                      p.    1427
Honorable   Oscar Ii. Hauty - Page 2          (JM-313)




             to decrease    the ,cotal  salaries,      expenses,      and
             allowances   which a prosecuting     attorney’s     office
             is receiving   at the time this Act takes effect.
             (Emphasis added).

TWO aspects      of this       section are relevant          to your inquiry:    the
creation  of    a special     fund and the grant of         expenditure power to the
attorney.

        Several prior opinions          of this office      dealt with article      53.08.
See Attorney General Opinior,s W-584,                 IN-439 (1982);      MU-241, IN-188
-00,.         Controversies       over interpretation        of the act stemmed from
article     53.08’s    directive     thzlt: the fund is “to be administered         by the
county attorney,        district    attorney , or criminal district         attorney” and
 that “[elxpenditures         from thI,s fund shall be at the sole discretion            of
 the attorney.       . . .”      Ordinnrily,      expenditures    of county funds are
 controlled     by the county commissioners court.             In question 18, you ask
whether the attorney            must obtain the approval of the commissioners
 court before making expenditures              from the fund.     Three prior opinions
 of this      office     provide      neclessary background       information     and are
 significant     to the scope of the attorney’s           authority    over  the fund.

       Attorney   General Opini~,n MW-188 (1980)   concluded  that county
auditors may prescribe    accounting and control procedures  for all fees
collected    pursuant to artic1.e 53.08 despite   the fact that the fees
were properly      to be deposl.t,ed in a special    fund in the county
treasury.     The opinion found

             no    conflict      between     the  district       attorney’s
             limited     statutory     discretion    to     determine     the
             purpose for which zxpenditures          from the fund are
             to be made and th; auditor’s           statutory       pover to
             prescribe      accounting    and control      procedures     for
             making deposits         ;uld disbursements.           (Emphasis
             added).

Thus, the attorney has “limi,:ed           statutory     discretion”   over     the nature
of expenditures  from the fund.

       Some confusion    may have arisen         from the language in Attorney
General    Opinion     MW-439 (1982).        The opinion        concluded     that   the
statutes   which require     comp<rtitive bidding         prior    to certain     county
expenditures    are not applicable      to the special fund created by article
53.08 because       the comp&itl,ve      bidding     statutes     apply only vhen a
county acts      through its     cotmlissioners     court.      In Attorney      General
Opinion MW-439, this        office!    stated    that “the       hot check fund is
explicitly    placed beyond the reach of the commissioners                court.”    The
rationale   for the conclusion      was that




                                        p. 1428
Honorable   Oscar H. Mauzy - Page 3         (m-313)




            article    53.08   glws     the  exclusive     right      to
            administer     the hot    check   fund , and to make
            purchases   from it,   to county attorneys,      district
            attorneys,   and crlmlnal district    attorneys.

We emphasize that this opinion does not Indicate           that expenditures    by
a county officer    never fall wlthln the scope of statutes vhlch contain
express  refereoces     to actlcns     taken by the commissioners          court.
Because county funds have been traditionally          admlnlstered  and expended
by the cowalssioners      court,    the legislature’s     reference   to actions
taken by the commissioners       court may, in some instances,       be Intended
to cover generally    the expend:iture and handling of “county funds.”

     Despite   the broad langw8e        In Attorney General Opinion MW-439,
this  office  later   held,    in ,U:torney General Opinion MW-584 (1982),
that  certain   reporting     statut.es  are applicable  to funds collected
pursuant to article    53.08.     The opinion indicated that

            although article    53.08 permits a county attorney
            to determine,    w1thj.n certain      limitations,      the
            purposes for which the funds may be expended, It
            does not    convert    t:hem into    non-public      funds.
            Indeed, the statute      specifies  that the funds may
            be used ‘only to deE.cay the salaries       and expenses
            of the prosecutor’s      office,’  Inarguably a public
            purpose.  . . . [S]w:h funds are collected         for the
            use of the state ani; county. . . .

Consequently , the opinion   concluded   that the attorney    administering
the fund Is required to report the collection      and dlsbursement,of    all
funds collected    pursuant  to .artlcle    53.08 in accordance   with the
directives  of certain report1r.g statutes.

      Thus. the answer to questzion number 18 is clear.       The attorney
administering     the fund need ‘lot obtain the approval of the commis-
sioners   court prior to making expenditures     from the fund.   Neverthe-
less,   as stated In Attorney General Opinions MU-188 and MU-584, this
statutory   discretion   Is subjec:t to certain limitations.   The attorney
must administer the fund within the confines of laws applicable       to the
use of county funds.

       You ask the following     specific    questions:

                1.    May     the    county       attorney,     dlstrlct
            attorney,    or criminal    district      attorney   [hereln-
            after   ‘the attorney’ :I make expenditures         from the
            fund to      supplement    the salaries         of assistant
            prosecutors    or other employees?         Is the payment of
            salary    supplements ,I:istlnct     from expenditures       to
Honorable   Oscar H. Mauzy - Page 4          (JM-313)




            defray the salaries         of   assistant   prosecutors     or
            other employees?

                2.    Is there a salary schedule for assistant
            prosecutors   or other employees of the attorney?
            Do payments above the scheduled level defray the
            salary of the employee7

                3.    May the attorrley         make expenditures      from
            the fund to defray t!w salaries              and expenses of
            the    entire     prosecut#zcs      office,     or   are   such
            expenditures     limited to defraying the salaries           and
            expenses      of    asslstia,t      prosecutors      or   other
            employees Involved in the prosecution              of offenses
            enumerated in article         53.08(a)?

               4.   May the attowey   make expenditures   from
            the fund to pay for Christmas bonuses,    or other
            types of bonuses,   fcr assistant prosecutors    or
            other types of employees?

                5.   May the attorney  make expeadlturee  from
            the fund to provide flxc automobile and/or parking
            allowances   for assistant   prosecutors  or other
            employees?

                6.    May    the    attolriey  make expenditures    from
            the fund to     rent    or purchase office  equipment?     Is
            the use of       this     equipment limited   to assistant
            prosecutors      and    other employees Involved     in the
            prosecution       of    offenses   enumerated in article
            53.08(a)?

                7.    May the attorrley   make expenditures      from
            the   fund   to pay the expenses of assistant        pro-
            secutors    who attend continuing    legal educational
            programs?      Must these   programs    relate   to the
            prosecution     of offenses    enumerated     in article
            53.08(a),    or may programs of any subject matter be
            funded?

                 8.    Are      asslstan t     prosecutors      or    other
             employees      receiving       or  benefltting      from   any
            ;expenditure     from the fund required to pay federal,
             state,    or local       lnccm,e taxes,    including    Social
             Security,     on such amcr.nta?       Must these taxes be
             withheld from the ass:tstant prosecutor’s             or other
             employee’s paycheck?




                                     p. 1430
Honorable   Oscar Ii. Mauzy - Page 5   (~~-313)




                9.   Is the atwrney    required to spend the
            entire  fund, or may he carry a positive    balance
            from one fiscal  yew: to the next?   If the entire
            fund Is not expendsad. must the balance be turned
            over to the county at the end of the fiscal  year?

               10. Hay the [at.torney] make expenditures   from
            the fund to hire staff    whose positions  are not
            authorized by the coarmissloners court? _,

               11. May the attorney   make expenditures.   from
            the fund to pay for s computerized office security
            system?

                12. Hay the attorney   make expenditures  from
            the fund to pay for the $nstallatlon of new carpet          ”
            in the offices of the attorney and the attorney’s
            staff?

                13. May the attorney    make expenditures    from
            the fund to pay. dues of the State Bar of Texas of
            assistant prosecutors  employed by the’attorney?

                14. May the attorney make expenditures    from
            the fund to pay the college     tuition    of his
            secretary?                                                   ,.

                15. May the attorney  make expenditures  from
            the fund to pay :lor ‘management retreats’     for
            members of his staff on dude ranches in the Texas
            hill country?

                16. May the attorney    make expenditures      from
            the fund to pay fcr coffee,     doughnuts,  or    lunch
            for members of the g.rand jury?

               17. May the attorney   make expenditures   from
            the fund to pay’ for framed color photographs    of
            the grand jury for wmbers of the grand. jury?

      Because many of these questions    are      int~errelated  and .because
there   are a number of the:n, for    clarity       the questions    vi11 be
discussed by topic.

      Questions    3, 6,. snd 7 each raise the Issue of whether the fund
may be used to defray costs         related   to the entire      office of the
prosecuting     attorney. .or to d,efray only oosts      attributable   to the
portion of.the     offlce,devoted to tha prosecution    and collection   of bad
checks as enumerated In art:lcl.e 53.08.         Quest.lon 9 deals with the
disposition   of excess funds.    What constitutes   “excess” funds depends,



                                 ‘?. 1431
                                                                                                 --




honorable       Oscar 8. Nauzy      - Page 6     ml-313)




in     part,      upon the      scope of expenditure   pover.         The only guidance
provided         01 article      53.08 with regsrd   to this        quertion  appears lo
section        (8).

        Section      (e) of article     ,53.08 prwides.      in part:

                 Expenditures      from ,this fund . . . usy be used only
                 to defray        the salaries     and expenses   of the
                 prosecutor’r      off+,    . , , @upbasis added)

      The fuudamsntal     rule governing          the interpretation      of     statutes   is
to  give effect     to the inteue:Lou of          the legislature.       City of Sherman
v.  Public  Utility     Cowissio~,    643  6.W.Zd 681, 684 (Tex. 1983).     To
determine the leglslsture’o        :Lntent and the purpose for a particular
provision,     it ir proper to conrider the history of the subject matter
involved.     the problsu  to be rauedied.    snd the ultiuate purposes to be
sccouplished.      &

       Ths legislative        hlrtory    sod bill    snslpsia      of article        53.08
indicate     that the prwisian          vas intended      to make the bad check
prosecution       and   collection      process   self-supporting.           This     fact
suggests    that expenditures       were intended   to be cede only for expenses
relsted     to tbs prosecution          and collection       of bad cbec’ls.           The
collecting     of bad checks,      btnrever, is an additioual        function     for the
attorney’s      office.    ths    cost   of vbich   xsy not alvays          be clearly
lpportfousbls.
         The Fiscal     Nots of the :Asgislative          Budget Board reveala      that

                 [i]t 5s not possib:ltr became of lack of bssic data
                 to estimate the additional   revenue vhlch vould be
                 collectsd by county governments  should the bill be
                 enacted.

Bill    Aualysis     to Eouse Bill       No. 825,     Fircal     Note prepared   for
Cosmittee    ou Criuiusl    Jurisprudence,    filed    in Bill File to Eouse Bill
No. 825, 66th Lsg.. Lsgislatlve         Reference Library      (1979).   Thus, it is
possible    that ths leglslsttm        did not anticipate       thst the fuud vould
svsu cwsr      the cost of procelming      and collecting     checks or bank drafts
pursuant    to srticle   53.08, rw:h less provide s source of surplus          funds
 for    the    state or for the counties.

        Nothing in the lsugusge         of tbs act. bovever, expressly          limits
 expenditurss       to the costs of ‘actuslly     procsssing    and collecting       bad
 checke .     The language     of rmtioxi (s) is brosd.           &ester    statutory
 guidance thsn exlrts im srtlc:Le 53.08 is necessary to s finding of au
 iuplied     liuit.      The phrase “prosecutor’s       offics”     in section       (e)
 suggerts the office        in peusrsl,   ths vhole office.      The prlemry source
 of the intent and meaninng of a strtuts            is obtained from the actusl
 language of         ths stetuts.       City   of   Sherman v.       Public    Utilite




                                           p. 1432
                     -     -.




Honorable    Oscar H. Hauzy - Page 7           (J-M-313)




Commission, 643 S.W.Zd at 684.      Because of the broad language        used in
section  (e) and because of the lack of any express or implied limit on
expenditures    from the fund to t.b.e costs of effecting     article  53.08, we
conclude   that expenditures    are not limited      to the costs     which   are
related   solely    to the prosewtion       and collection      of bad checks.
Outlays may be made for the whole prosecutor’s        office.

       Expenditures       from the special     fund are, however, limited             to de-
fraying      “the salaries       and expznsea of the prosecutor’s           office.”        In
other words,         all    expenditures    from the       fund must relate          to the
official      business of the prosewtor’s         office.      There is no requirement
that     the   attorney     spend the entire      fund; rather,       the attorney         may
spend no more than the amount which is reasonably necessary to defray
the   salaries     and expenses of the office.            Any surplus must remain in
the fund, subject           to the lee,islature’s        further   direction      for dis-
position.        A positive     balance may be carried from one fiscal              year to
the next but such funds remair. subject                to the limitation         to office
expenses.        Article     53.08 does not require          the attorney     to pay any
excess in the special            fund over to the general fund of the county.
The attorney must, however, cwnply with                 various    reporting      statutes.
See Attorney         General      Opinion  MU-584 (1982)         (and statutes          cited
therein).

      Analysis of particular      expenditures    is two-fold:      (1) whether the
expenditure is related       to the official    business of the office,      and (2)
whether any other constitutional          or statutory   provisions    prohibit  the
expenditure.       The particular       expenditures      in   question    will   be
discussed    in five separate     cawgories:       (I) hiring of new personnel.
(II)   the payment of salaries        and of monetary salary supplements or
bonuses,   (III)   the payment of “in kind” bonuses, (IV) expenditures           for
equipment and supplies,        and (‘J’) expenditures    for the members of the
grand jury.       The propriety    o:f particular     expenditures     is dependant
upon factual     conclusions   which we do not address here,

      I.  Hiring of New Personnel.      Article  332a. V.T.C.S., applies    to
county attorneys,    district attq%eys.    and criminal district attorneys.
The act addresses various aspects of personnel matters and expanses of
the prosecuting   attorneys’ off:lces.    Section 2 of the act provides:

                  The prosecuting       attorney      may employ         such
             assistant      prosecuting    attorneys,       investigators,
             secretaries.     and othw: office      personnel as, In his
                                                for     the    proper      and
                                               administration        of    the
             office.      (Emphasis added).

Although other sections      of axticle    332a require commissioners   court
approval,   this provision   does not.    Thus, in response to question   10,
the attorney    may make expenditures   from the fund to’hire  staff without
the prior.authorization    of the commissioners court.


                                       p. 1433
Honorable    Oscar H. Mauzy - PaI+ 8             (JM-313)




        II.     Payment of salaries          and of monetary salary supplements              or
bonuses.        Questions 1, 2. andIt each deal with the payment of salaries
and of certain          salary supplements to assistant             prosecutors     and other
employees of the prosecutor’s                 office.     Article-53.08,      in subsection
(e) . expressly         authorizes     and limits       expenditures      from the special
fund “to         defray      the --salar:les      and expanses       of   the prosecutor’s
office.       . . .‘I (Emphasis addecg.             Thus, the prosecuting       attorney may
clearly       pay the salaries       of I:he employees of the prosecutor’s             office
from the fund.              Subsection      l:e) specifically       prohibits     the county
attorneys,        district     attorney!%,, and criminal         district    attorneys    from
supplementing         their    own salr.ries       from the fund.         The propriety      bf
salary       supplements and bonuses for the employees of the attorney’s
office      depend upon the terms o:I other statutory provisions.

      Article   3912k, V.T.C.S.,     concerns the salaries     of numerous county
employees.     Article   3912k does not apply, however, to the employees of
a district    attorney,    county ,lttorney,   or criminal district      attorney.
See Attorney       General    Opini’>ns R-908     (1976);    R-656   (1975).    The
employees of all three types of prosecuting            attorneys   fall under the
provisions    of article     332a, V.T.C.S.     See Attorney General Opinions
H-922 (1977);     E-908 (1976).      Attorney General Opinion H-908 reasoned
that article    332a is a more s;?ecific      statute which was enacted later
in time than article      3912k.

       Article    332a.   in section     :5, provides:

                  Salaries     of asc;l.stant    prosecuting    attorneys,
              investiaators.        secretaries      and     -
                                                            other    off&
              person&        shall    te   fixed    by the prosecuting
              attorney,     subject    ?o the approval        of the com-
              missioners     court of the county or the counties
              composing the district.          (Emphasis added).

Thus, in response to part of question 2, the existence      of any “salary
schedule”  depends upon the salaries     set by the various      attorneys’
offices.  Because the attorns,y’s power in article   332a is “subject      to
the approval of the commissioners    court,”  some clarification      of our
response to question number 16 is necessary.

      As indicated,     article     332a addresses various que’stions relating
to personnel matters and to other expenses of the attorney’s                  office.
Sections    5 and 6 of the act deal with salaries              and travel expenses,
respectively,     and each section       expressly     requires    the “approval”     of
the commissioners       court.      In contrast,      article    53.08 of the code
places expenditures       from the fund within the “sole discretion”            of the
prosecuting     attorney.      Article   332a was enacted in 1973, see Acts
1973. 63rd Leg., ch. 127, at 275, whereas article                 53.08 wasadded      to
the Code of Criminal Procedure in 1979.             See Acts 1979, 66th Leg., ch.
734.   51. at 1802.         Therefoc’e.   article53.08,         as the more recent
expression    of the legislature’s      intent , supersedes article       332a to the
Honorable   Oscar H. Hauty - Page 9           (JM-313)




extent of conflict,    &,     with regard to expenditures               from the special
fund.    To the extent that sa:Lary increases   and office               expenses may be
paid   from the     special   furd,  the attorney    need               not   obtain  the
commissioners court’s     approval.

       Neither article       53.08 r,or article        332a. however, addresses        the
question    of salary       supplements      or bonuses.        Clarification     of the
distinction      between salary       “increases”       and salary “supplements”        16
necessary     st this point.        We assume that by “supplements”             you mean
payments for work that has already been performed by an employee.                      The
two differ.        See generally      Attorney General Opinion MW-459 (1982).
Salary increases       are within the discretion          of the prosecuting     attorney
by virtue      of section       5 of article        332a.     Although the provision
requires     the “approval        of the commissioners          court ,I’ see Attorney
General Opinions H-908 and H.-922, to the extent that salary increases
may be paid from the specl.al               fund, the attorney         need not obtain
commissioners        court    approval.       The commissioners         court   may not.
however, reduce the amount already authorized for salaries                    in order to
counteract,     and thus interf e,ce, with the attorney’s             “sole discretion”
over the fund.         See Attorney General Opinion H-922 (1977);                see also
Code Grim. Pro=‘;-art          . 53.1:3(e)      (“Nothing     in this      Act shall     be
construed     to decrease       the total      salaries    . . . which a prosecuting
attorney’s     office    is receivirg    at the time this Act takes effect.“).

      Nevertheless,       salary      increases          or     supplements    cannot      be
retroactive.      Article     III,     section     53      of    the Texas    Constitution
provides,    in part:

                 The Legislature     ,shall have no power to grant,
             or to authorize     an;r county or municipal authority
             to grant, any extra, compensation,      fee or allowance
             to a public officer,      agent, servant or contractor,
             after’service   has teen rendered, or a contract has
             been entered into,       and performed in whole or in
             part. . . .

See also Tex. Const. art. III,          044.    Section 53 prohibits      the retro-
active    payment of     salary    bonuses,      supplements,    or other      salary
increases   by political    subdivisions.       Fsusett ‘I. King, 470 S.W.2d 770
(Tex. Civ. App. - El Paso 1971, no writ);            Pierson v. Galveston County,
131 S.W.2d 27 (Tex. Civ. A,pp. - Austin 1939, no writ);                      Attorney
General Opinion H-11 (1973).             Even if     district   attorneys,     county
attorneys,    and criminal      dizrtrict     attorneys     are not themselves        a
“county or municipal authority”           for purposes of article      III,   section
53, the special     fund created by article        53.08 is clearly    comprised by
county funds.     See Attorney Ganeral Opinion MW-584 (1982).               Thus, the
attorney administering      the special      fund may not grant extra compensa-
tion, fees or allowances       to ;u\ employee after the employee’s          servlces
have been rendered.




                                         p. 1435
Honorable   Oscar H. Hausy - Page 10          (JM-313)




      In sum, with regard to questions       1, 2. and 4, the payment of
salary supplements to employeoa of the prosecuting       attorney’s  office
is distinct   from the payment of salaries.      Although salary increases
or supplements    are authorized,     payments,  by whatever name, which
compensate for past work performed by an employee of the office,          are
prohibited  by the Texas Constit,ution.

        III.    Payment of “in kind” bonuses.        In questions    5, 7, 13, 14,
and 15, you ask about expecaitures              from the fund to pay various
allowances       and expenses to or for the employees of the attorney’s
office.       The preceding discussion   about the constitutional       prohibition
against      the payment of extra compensation         to public employees after
services      have been rendered also applies        to “bonuses” which are not
directly      related   to salaries  but which are intended or function             as
added compensation.        For examI#le. in question 5 you ask about parking
allowances.        Paid parking may be a legitimate         part of compensation,
but when cash “parking allowances” are given directly              to employees as
a bonus after the employees’ services         have been rendered, the payments
subvert       the purpose    of article    III.     section    53.    Some of      the
allowances       about which you ir.q,uire appear to be added compensation;
others fall within the category of reimbursement for expenses properly
chargeable against the county.

        In general,       payments of allowances       and expenses     for public
employees must reasonably relz,t,e to the performance of the employee’s
official     duties.     See Attorney General Opinions MW-116 (1979); E-1164
(1978);     H-152, 8-m        (1973); W-978 (1971).      Article   53.08,     in sub-
section     (e),   authorizes    the attorney    to make expenditures       from the
fund only for “salaries           and texpenses of the prosecutor’s          office.”
Moreover,     article    III. section 52 of the Texas Constitution         expressly
prohibits     the use by a politi,cal      subdivision   of its public      funds or
credit    for private purposes.       State v. City of Austin, 331 S.W.2d 737
(Tex. 1960) ; Attorney General-Opinion            JM-220 (1984).     An incidental
private     benefit    from   the expenditure    of public    funds for a public
purpose     is not prohibited.        E,arrington v. Cokinos,      338 S.W.2d 133
 (Tex. 1960); Attorney General opinions JM-220 (1984); PM-251 (1980).

       In   question    5 you arik about          “automobile    and/or    parking
allowances.”       As indicated,  parking for employees when they come to
work may be a legitimate          perquisite     of employment.        It is not,
however,    an expense incurred      in the performance       of the employee’s
official   duty.     On the other hand, if the employee’s        official   duties
require    travel,    an “automobile      allowance”    may be    an expense     of
performing official      duties.  A,rticle 332a. la section 6, provides:

                 Assistant      prosecuting   attorneys    and lnvestiga-
             LOTS, in addition            to their    salaries,     may be
             allowed       actual    anti necessary     travel     expenses
             incurred in the discharge of their duties,               not to
             exceed      the     amount- fixed     by   the     prosecuting



                                       p. 1436
Honorable    Oscar H. Mauzy - PaI;e 11          (~~-313)




             attorney  and apprcved by the commissioners      COUKt
             of    the county   0,: the counties    composing    the
             district.    All claims for travel expenses may be
             naid from the General Fund, Officers’    Salary Fund,
             or any other      av$.lable -funds  of   the county.
             (Emphasis added).

As discussed    previously.    article    53.08 of the code replaced.   to the
extent  of conflict,       the provisions      in article 332a which require
commissioners    court approval.       To the extent that legitimate  expenses
may be paid from the fund, the attorney need not obtain comnnissioners
court approval.

      BY “automobile       allowance ,” we assume that you refer            to a set
amount of money paid at clz::taln intervals              to defray      the cost of
operating a privately-owned         automobile which is used in the conduct of
the employee’s    official      duties.   See Attorney General Opinions H-992
(1977);  H-152 (1973).           If   the z     of the     employee’6     vehicle     is
necessary to the actual performance of the employee’s             official     duties,
section  6 of article        332a tuthorizes     the payment to assistant         pro-
secuting  attorneys     and investigators      of “actual    and necessary      travel
expenses incurred in the dis-harge          of their duties.”      Nevertheless,        a
flat rate automobile        allowance which bears no relation         to the number
of miles actually     driven on oEficia1 business         is not authorized.        -See
Attorney General Opinion H-152 (1973).

       Question 13 refers to tl,e payment of State Bar dues for assistant
prosecutors.       In Attorney General Opinion MN-251 (1980),                   this office
determined     that a state         agency may spend public             funds to pay the
notary    license     fees     of its     employees      who provide         notary    public
services    as part of their duties.            This did not constitute            an uncon-
stitutional     grant of public        funds for s private           purpose because the
expenditure     was directly       and substantially       related     to the performance
of the agency’s        governmental function.            Although the payment of bar
dues by assistant        prosecutors      may be necessary         to the performance of
the assistant’s       duties,     it is an expense related           to the individual’s
profession     rather than an “office            expense.”        A distinction      must be
made between the minimum qualifications                    for public       employment and
additional      training      and/or     specialization         for. additional       duties.
Accordingly,      the attorney       may decide to pay the State Bar dues of
assistant     prosecuting      attorneys    only as additional           compensation,        and
not as an expense of the office.
Opinions MN-276, MN-156 (1980) ; H-1042            =i55f+2&t7;;;)                    ;=:ef;;:
(1966) ; C-506 (1965).

      The same constitutional     principles    apply to the expenditures      you
inquire   about in questions       7, 14, and 15.        Question    7 refers   to
expenditures    from the fund to pay the expenses            of assistant     pro-
secutors    who attend     continuing     legal    education    programs.     Such
expenditures   .are authorized   :lnoofar as the programs are directly         and



                                            p. 1437
Honorable   Oscar H. Msuzy - Pagl? 12         (JM-313)




substantially     related   to the performance of the office’s             governmental
functions.      See Brazoria      Count                   537 S.W.Zd 89 (Tex. Civ.
APP, - Houstz[lst         Diet.]    19716,    * writ , Attorney General Opinions
                                             no
                                        -=-=Y’
MW-251 (1980);        H-1164,    H-1133 (1978).          As indicated       previously,
expenditures     must relate     to t‘ie duties of the prosecuting           office   but
are not limited to the specific             prosecuting    and collection      functions
covered by article        53.08.     I:> addition,     when expenditures        are made
which involve       potentially     substantial      incidental    private    benefits,
article    III,   section   52 requires       that conditions     be attached      to the
expenditure     to assure the use of public money for a public purpose.
Attorney General Opinion JM-2X (1984);               see Attorney    General Opinions
JM-103 (1983); MW-423 (1982); MU-60 (1979).                For example, the Brazorla
County v. Perry case dealt with a deputy sheriff                  who attended a law
enforcement officer’s        training     program at county expense.         The deputy
sheriff    agreed to reimburse the county for the expense of the program
if he did not remain in the enploy of the sheriff’s                 department for at
least two years after completing the training program.

       In question 14 you ask whether the attorney may make expenditures
from the fund to pay the co:l:tege tuition                of his secretary.       It is
conceivable      that certain     coll”8e     courses and training programs may be
directly    and substantially        rel,ated to the performance of the part of
the office’s      governmental functions which the secretary performs.               The
payment of college       tuition,     however, for the general education of the
secretary      is not authorized.            On the other hand, if        the college
tuition     is limited      to cours,es which train             the secretary    for   a
different      position    or additi,onal         duties   which are part      of    the
performance       of the office’s        governmental     function,   the expenditure
appears legitimate.         The Tex;as Constitution,          however, requires     that
the office      attach contractual       c.onditions to the expenditure which will
assure that the office        will rc:c.eive the full value of the expenditure,
including     the value of the expenditure           as a “loan” to the secretary.

       In question     15, you refer       to “management retreats”       on dude
ranches in the Texas hill        cowtry.      It is conceivable    that a legiti-
mate training      or continuing     Yegal education program could be located
in the Texas hill      country.     Nevertheless,   if by “retreat”    you do not
refer    to a formal      training     or education    program, but rather        an
occasion     merely to     increase     the morale and productivity        of the
attorney’s    office,   it may be nothing more than a private vacation            at
public expense.       As such, it Eunctions as and is subject to the legal
limits    mentioned above which are applicable          to additional    compensa-
tion.     It must be a pre-established        part of the employee’s     compensa-
tion.

       In   question   8 you inquire    about the “federal,    state,   or local
 income”    tax ramifications    of t,hese “in kind” benefits.     There is, of
 course,    no state or local     inccome tax in Texas.    Questions  about the
 federal    income tax consequence of the receipt     by individual    employees
 of "in     kind" bonuses     should be addressed   to the Internal       Revenue




                                         p. 1438
.
    Honorable   Oscar H. Mauzy - Page 13            (JM-313)




    Service.    We note, however, c:hat for some purposes, Texas law draws a
    distinction   between expenses and compensation.     See Attorney General
    Opinions JM-39 (1983); NW-391 (1981); -cf. MW-334 (1981).

           IV. Expenditures         for equipment and supplies.              In questions     6,
    11. and 12 YOU ask about the propriety              of making exnenditures         from the
    fund for various types of ec,uipment and suppli&.                   . Subsection      (e) of
    article   53.08 expressly         provides   that expenditures        from the fund may
    be used to defray           the “exI,enses      of the prosecutor’s         office.”      As
    indicated    previously,      expendj,tures are not limited to the direct costs
    of effecting      article    53.08, ‘>ut may be used to defray the expenses of
    the entire        prosecutor’s       office.      Nevertheless,      expenditures        must
    directly     relate     to the official        duties   and functions        of the pro-
    secutor’s     office.       Consequently , the attorney         may make expenditures
    from the fund to pay for a cc~mputerired office                security    system and new
    carpet if those things are re.ssonably necessary to the performance of
    the official       duties    of the p.rosecutor,s      office.      To the extent that
    such expenditures         can be made from the special           fund, the approval of
    the commissioners court need c.ot be obtained.

          V. Expenditures    for members of the grand jury.         In questions     16
    and 17 you ask whether the T’ttornev may make exnenditures               from the
    fund to-pay for coffee,     douf;tlnuts, iunch, and framed photographs for
    members of the grand jury.           These are clearly   not expenses of the
    prosecuting   attorney’s     0ff:lce.      Compare Code Crim.       Proc.    1038.
    Consequently,  totally   aside E,rom the ethical     considerations     involved,
    the attorney lacks the authority        to make such expenditures.

                                          2, U M M A R Y

                        The county alztorney,       district    attorney,  or
                 criminal    district     attorney    who administers     the
                 special    “bad    check” fund created          pursuant  to
                 article   53.08 of ,:he Code of Criminal Procedure
                 need not obtain th,e approval of the commissioners
                 court prior to making expenditures           from the fund.
                 Expenditures from t.he special        fund are not limited
                 to the costs        which are related        solely   to the
                 prosecution    and collection     of bad checks; they may
                 be made for the whole prosecutor’s          office.

                        Outlays from t’he fund are, however, limited
                  to defraying      the salaries     and expenses    of  the
                  prosecutor’s     office.     Although salary    increases
                  and pre-existing       “in kind” forms of compensation
                  are authorized,     no l~onuses, salary supplements, or
                  allowances may be made which operate as additional
                  compensation to an employee after the employee’s
                  services     have been rendered.        An employee may,
                  however,     be reimbursed     for   legitimate  expenses



                                               p. 1439
Ronorable   Oscar H. Maury - Page 14       (JM-313)




            incurred    in the   Performance       of   the   employee’s
            official   duties.

                 The attorney may make expenditures        from the
            fund to pay for of:f:lce equipment and supplies          if
            they are reasonablg, necessary      to the performance
            of the official    dut:les of the prosecutor’s   office.
            Expenditures    for t!w benefit    of members of the
            grand jury are not authorized.




                                               JIM     MATTOX
                                               Attorney General of Texas

TOMGREEN
First Assistant    Attorney   Gener,al

DAVID R. RICHARDS
Executive Assistant Attorney Ceneral

RICK GILPIN
Chairman, Opinion Cormaittee

Prepared by Jennifer Riggs
Assistant Attorney General

APPROVED:
OPINION COMMITTEE

Rick Gllpin,   Chairman
Jon Bible
Colin Carl
Susan Garrison
Jim Moellinger
Jennifer Riggs
Nancy Sutton




                                         p. 1440
