                     January 28, 1949

Hon. ‘Robert~S. Calvert
Comptroller of Public Accoun+'
Austin,.Texas
                Opinion No. V-762       .

               Be:   Eligibility of a County which comes
                     within subsection 15(a) of IArticle
                     39X%; in Janpary, 1949 to partici-
                     patiein the appropriation.containea
                     in'Ifemll;,H.B. 244, for the re-
                     mainder of the current .biennium.
mar&:
          :xou+:+q~~st.'for.an opinioni in part* reads:
            .."
         -.qAt.ibe.‘gxeEient,t~there tie six co&
     t$e%in-$hi@~&ate~under    20,000 in population
     whiob-.haM :ae'
                   CoirntyAttorney performing th8
     ;auty-~f!a:;Dis~riot.Attorriey
                                  ena the ctipensa-
     t$on ti all of the~.oount$ofYicWs in these
     counties .ls:tKeirrees of office.
    _.   f.
           "This aepartment has beQn placed'on no-
     tice by the officials of,one of these counties
    ,-th&-the..c.+&y officers would. be compensated
    .on.~:'~l~~,-basi~-',~ginnisg'Jannary‘1;:1949.:
     This oounty will~be eligible.ior the apportion-
     meqt under.th& provis~ionsof &t&cle 39&2e, Sec-
     tion .15,.Sub&e&ian (-a)p&e 286 of Vernon's
     CivQ St?tuF;es+
      . ~'~Whouldthis departm&it'm&ke this appor-
    ti'onGn%-,?rom.theemoutltappropri,ateil
                                          by-House.
    Bill~Nudber W+;:Chapter 338, Se&ion 11;$146,-,
    429,~page.645,:,
                   General and Speci+Laws   of the
    50th.Legislature,,for'the period January 1, 1949
    to August Zl.,1949,'inclusiv~? Or. should this
    department make.the apportionment,by a,%ransfer
    from.the appropriation in Seotion 9, $60,000,~0f
    the above bill to the apportionment appropria-
    tion for this apportionment in Section 11, if so,
    would the amount transferred be the maximum
    amount due such couhty, or would the fact that
Hon. Robert S. Calvert - Page 2   (V-762)


     the counties now eligible for the apportion-
     ment from the $146,429 receive only 56% of
     the maximum amount due them have to be con-
     sidered in making this transfer? Or would
     it be necessary for a supplemental appropria-
     tion to be made before this apportionment
     could be accomplished?
         With reSard to ~theabove questions ref-
    erence is made to your opinion Number O-6652,
  . questions Numbers 1 and 4 and the answers
    thereto."
          Section 6(a) of Article 39lZ.e,V.C.S., in part,
reads:
     n . . .~It shall be the duty of the Comptrol-
     ler of Public Accounts to annually apportion
     to .a11 counties in which the county officers
     are to be compensated on the basis of a sal-
    erg any monies, appropriated for said year
     for such'apportionment; each county entitled
     to ~participatein ,such apportionment shall
     receive'..for.the-benefitof its:.Offic'ers'
                                               Sal-
    :ary.Fund,.or funds its proportionate part of'
     the apjYopriation which shall be 'distributed.
     among then several'counties entitled to Darti;
     qipate therein on the basis 'ofthe'.percapita
       opulation of each county, according~to the
        st'precedinp Federal Census. . ." (Empha-
   .~.sis added)..
       .' .Sec.tion15 of Article 39128 V;C.S..,in part,
and &bsec,tion..(ti)thereof respectiveiy read as follows:
                 .,.,
           !'The.Commissioners'Court in counties
     ,havinga..populationof less then twenty (20,-
     OOO)inhabitants.,according'to the last pre-
     ceding Federal Census eat the first regular
     ~meetiag ,inJanuary of:each calendar year, may
     pass an order .providing for compensation of
     all'county andiprecinct officers on a salary,
    .basis. The Commissioners1 Court in each.of
     such counties.1~ hereby authorized, and it
     shall be its duty, to fix the salaries of
     Criminal District Attorneys. In'the event
     such Court passes such'order they Shall pay
     to each of said District and County officers
     in money an annual salary in twelve (12)
Hon. Robert S. Calvert - Page 3   (V-762)        ..


     equal installments of not less than the
     total sum earned as compensation by said
     officer in his said official capacity for
     the fiscal year of 1935,and not more'then
     the maximum allowed such officer under
     laws existing August.24th, 1935. . ."
             (a). The oompensation of,a Criminal
     Distriot Attorney, or County Attorney who
     performs the duties of Mstrict Attorneys,
     together with the compensation of his as-
     sistants, shall be paid out of the-County
     Officers' Salary Fund, but the State shall
     pay into such,.fund'eachyear an amount
     equal to a sum which bears the same propor-
     ticinto the total salary of such Criminal
     District Attorney, or County Attorney per&
     forming the duties of a District Attorney,
     together with the salary of his assistants,
     as all felony fees collected by such offi-
     cial auring the year or 1935 bear to the
     total fees collected by such official dur-
     ix@ ~such year;"'
                    _ '_
   .         The~provisions of subsection (a); supra, are
also contained inysubsection (b).,.section13, of Article
39128, v;c.s., whioh.is applicable to allthose countias
h&ring a population of 20,000 or more and lessthen 190,-
000 &Cording     to the last preceding Federal Census. The
county officers of all such aounties,&e compensated on
a salary;basisr (Sec. 61, Art. XVI, Con&.),
          Items 9, lO.and ll of the'appropriations made
to the Comptroller%-Department for the current fiscal
year (Acts 50th Leg ., Ii.3. 244, pd 645) respectively
read as r0ilavs:
     "9.   .Fees ana costs or sheriffs, at-
            torneys ;ana clerks in felony
            cases; ana fees of oounty jtiages,
            county attorneys, .justicesof
            peace,sheriffs and oonstables
            in exemining trials where indict-
            ments are returnad.                  $    60,OOO.OO
Hon. Robert S. Calvert - Page 4   (V-762)


     "10. Apportionment to counties where
          county officers are paid salaries
           (per Chapter 465, Section 6A,
          Second Called Session, Acts Forty-
          fourth Legislature). Should,any
          county, by electipn of the Com-
          missioners Court, change from
          salary to fee basis or vice versa,
          the Comptroller shall make adjust-
          ment in the appropriations by
          transferring the correot amount
          from appropriation made for fees
          and costs of sheriff and other
          county officials to appropriation
          to pay counties on a per capita
          basis or vice versa as the case
          may be                            514,ooo.oo
     nil. Apportionment to counties where
          county officers are paid. salaries
          end where there is a criminal dis-
          triotattorney or county,attorney
          performing the.duties.of.district
          attorney (As per sub-section B,
          Section 13,and Section.15, sub7
          sectionA, Chapter 465, Acts
          Forty-fourth'Le&slature)           146,429.OO"
         .Item 9 is primarily en appropriation to pay
the OffiC8TS named therein.-ofcounties in which all
county officers ar.ecompensated on a~fee basis for par-
ticular services rendered the State asprovided by the
statutes.
           Item'10 is an appropriation for the benefit
of c3.lcounties wherein all county officers are compen-
satid on a salary basis. It.was made by the Legislature
in obedience to the provisions of -Section 6(a) of Arti-
cle 3912e. However, since the Commissioners~ Court of
any county having 'apopulation of less than 20,000 has
 been authorized by Section 15 to d-mine    at its first
~regularmeeting in January of each calendar yearwhether
all county officers shall be for that year ccmpensated
 on a fee or salary basis, the Legislature has provided
 in Item10 for the Comptroller to transfer from Item 9
 to Item 10 or vice versa in the event such changes are
made. Section 6(a) requires this appropriation to be
apportioned among the counties entitled to participate
 therein "on the basis of the per capita population of
 each county accordiny,to the last preceding Federal Cen-
 sus."
Hon. Robert S. Calvert - Page 5   (V-762)


           The appropriation made by Item 11 is to pay
all those counties~which come within the classifications
described in subsection (b) of Section 13 and subsection
 (a) of Section 15, and must be apportioned by the Comp-
troller to each county in accordance with the formula
prescribed therein. In other words, any county, regard-
less of its population, is eligible to.participate in
the distribution of this appropriation, provided its
county officers are compensated on a salary basis and
which has a criminal district attorney or a county attor-
ney performing the duties of a district attorney. The
purpose of this appropriation is wholly unrelated to the
purposes of the appropriations contained in Items 9 and
10. The authority'conferred upon the Comptroller to
make adjustment in these two appropriations cannot be.
extended by construction to include the appropriation in
Item 11.
           We have examined all appropriations heretofore.
made by the Legislature for distribution to counties in
accordance with the provisions of Section 6(a) and sub-
section (b), Seation 15, of Article 3%.2e, and have found ~,
that each appropriation'maae prior to the appropriation
made by the 50th Legislature limited the number of coun-
ties eligible to participate in each such appropriation
to thirty-three. The current appropriation (Item 11) is
note so limited.
          You have informed us that the 50th Legislature
discovered that there were six additional counties hav-
ing a population of less than 20,000 inhabitants accord-
ing to the last census in which the county officers were
compensated on a fee basis and haviw either a criminal
district attorney or a county attorney performing the du-
ties of.a district attorney. Therefore, it appears the
Legislature realized the probability of one or more of
these counties becoming eligible during the current bien-
nium to participate in the distribution of this appropria-
tion and for that reason,did not limit the appropriation
to any number of counties, thereby enabling such county
or counties to participate therein.
          In view of the foregoing,.it is our opinion that
when a county of less than 20.,000 inhabitants in which the
county officers have heretofore been compensated on a fee
basis and which has a criminal district attorney or a coun-
ty attorney performing the duties of a district attorney,
chawes its method of compensating its county officers
Hon. Robert S; C&i&t        .-‘.Page 6 .iV;76?)



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