  = OFFICE OF THE ATTORNEY GENERAL . STATE OF TEXAS

    JOHN       CORNYN




                                                      March 7,2002



The Honorable Michael A. Stafford                              Opinion No. JC-0473
Harris County Attorney
1310 Prairie, Room 940                                         Re: Meaning of “lifetime service credit” for
Houston, Texas 77002                                           purposes of subchapter D of chapter 41 of the
                                                               Government Code, which mandates longevity pay
                                                               for certain assistant prosecutors (RQ-0442-JC)

Dear Mr. Stafford:

        You have asked this office two questions concerning the implementation of House Bill 178
as adopted by the Seventy-seventh Legislature, which adds to chapter 41 of the Government Code
a subchapter D, concerning longevity pay for assistant prosecutors. Those questions, as your letter
phrases them, are “whether ‘lifetime service credit’ must be earned during a continuous period of
employment and whether ‘lifetime service credit’ earned in one county transfers to another county
in the event an assistant prosecutor changes jobs.“’ In answer to your first question, we conclude
that no requirement of continuous employment is to be found in the statute. In answer to your
second question, it does not appear that the accrual of lifetime service credit is affected by a change
in the county employing the prosecutor.

           Section 41.252 of the Government            Code provides in relevant part:

                         (a) An assistant prosecutor is entitled to longevity pay to be
                    included in the assistant prosecutor’s monthly compensation if the
                    assistant prosecutor:

                              (1) is a full-time employee on the first workday of the month;

                           (2) is not on leave without pay on the first workday of the
                    month; and

                             (3) has accrued at least four years of lifetime service credit
                    not later than the last day of the preceding month.

TEX. GOV’T CODE ANN. 6 41.252(a) (Vernon Supp. 2002).




           ‘Letter from Honorable     Michael A. Stafford, Harris County Attorney,     to Honorable John Comyn,   Texas
Attorney    General (Sept. 20,200l)    (on file with Opinion Committee) [hereinafter   Request Letter].
The Honorable   Michael A. Stafford    - Page 2       (JC-0473)




         Accrual of lifetime service credits is governed by section 41.257 of the Government Code.
Section 41.257(a) provides that “[a]n assistant prosecutor accrues lifetime service credit for the
period in which the assistant prosecutor serves as a full-time, part-time, or temporary assistant
prosecutor.” Id. 5 41.257(a). As you note, section 41.257(b) provides that “[a]n assistant prosecutor
who is on leave without pay for an entire calendar month does not accrue lifetime service credit for
the month.” Id. 8 41.257(b). Further, section 41.257(c) provides that an assistant prosecutor who
simultaneously holds more than one position for which such credit accrues “accrues credit for only
one of the positions.” Id. 6 41.257(c). Subsections (b) and (c) of section 41.257 are the only express
limitations on the accrual of lifetime service credit in subchapter D.

        Given the restriction of section 41.257(b), that “even while an assistant prosecutor is
continually employed in one county, he or she may not earn ‘lifetime service credit’ for every month
employed,” you ask in effect whether the prior service of an assistant prosecutor who had worked
for Harris County for a period of years, then left the county’s employ, and later returned, would be
counted in determining his or her lifetime service credit. Request Letter, supra note 1, at l-2. In our
view, such prior service must be credited.

        Pursuant to section 3 of House Bill 178, the subchapter “applies to lifetime service
credit accrued under that subchapter before, on, or after the effective date of this Act.” Act of
May 15,2001,77th Leg., R.S., ch. 378, $4 2,3,2001 Tex. Sess. Law Serv. 663,665 (effective date
of January 1,2002) (emphasis added). Accordingly, an assistant prosecutor who served before this
subchapter was adopted has “accrue[d] lifetime service credit for the period in which the assistant
prosecutor serve[d] as a full-time, part-time, or temporary assistant prosecutor.” TEX. GOV’T CODE
ANN. 9 41.257(a) (Vernon Supp. 2002). The only express restrictions on the accrual of lifetime
service credit to be found in subchapter D are those which provide that service credit does not accrue
while a prosecutor is on unpaid leave, id. 5 41.257(b), and that a prosecutor simultaneously
employed by multiple counties only accrues credit for one position, id. 9 41.257(c). Were we to
agree that continuous employment was necessary for such accrual, it would be necessary for us in
effect to add qualifying terms such as “continuously in a particular county” to section 41.257(a).
“[Tlhis office,” as we pointed out in a prior opinion on this subchapter, “has no power to supply such
an emendation.” Tex. Att’y Gen. Op. No. JC-0438 (2001) at 3.

         You further ask “if Harris County were to hire an assistant prosecutor who had accrued
‘lifetime service credit’ in another county, would Harris County be obligated to pay longevity based
on that accrued ‘lifetime service credit. “’ Request Letter, supra note 17at 2. For the reasons already
articulated in answer to your first question, we conclude that Harris County would be so obligated.

         Section 41.255(a) provides that “[tlhe county shall pay a longevity pay supplement under
this subchapter out of the county general fund.” TEX. GOV’T CODEANN. 8 41.255(a) (Vernon Supp.
2002) (emphasis added). This provision is mandatory, not discretionary. Attorney General Opinion
JC-0438, which recently construed this language, specifically held that while section 41.255(d)
requires that the state reimburse such payments, “the statute in question requires the county to make
this payment whether or not the legislature has appropriated enough for the county to be
reimbursed.” Tex. Att’y Gen Op. No. JC-0438 (2001) at 1.
The Honorable    Michael A. Stafford     - Page 3       (JC-0473)




         Nothing in the statutory language suggests that service credit accrued in one county would
be lost should an assistant prosecutor take employment in a different county. The only restriction
even akin to this is the requirement in section 41.257(c) that a prosecutor who serves simultaneously
in multiple counties may only count service credit accrued in a single county. (The supplement for
such a prosecutor is, pursuant to section 41.255(c), to be apportioned among the counties involved
on the basis of population.).     Nothing in the statute as written suggests that such credit is non-
transferable, and accordingly we cannot interpolate such a requirement.

        In its discussion   of the background   and purpose of this legislation,   the bill analysis notes:

                 In the State of Texas there are approximately 1,600 assistant district
                 attorneys, assistant criminal district attorneys, and assistant county
                 and district attorneys. Many of these prosecutors have more than four
                 years experience in this field. Although these assistant prosecutors
                 are largely responsible for the enforcement of the state’s felony
                 criminal laws in Texas courts, their salaries are paid largely by
                 individual counties. The salaries for experienced prosecutors have
                failed to keep pace with the salaries available in theprivate sectorfor
                 experienced attorneys. House Bill 178 provides state longevity pay
                 for certain assistant felony prosecutors who have accrued at least four
                 years of lifetime service credit.

HOUSECOMM.
         ONJIJDICIALAFFAIRS,BILLANALYSIS,
                                    Tex. H.B. 178,77th Leg., R.S. (2001) (emphasis
added). As the emphasized portion of the bill analysis makes clear, the intent of the bill was to offer
an incentive for experienced prosecutors to engage in public service. That service is the enforcement
of the state’s criminal law, a matter of general state-wide concern; and the provision of experienced
and competent counsel in this regard is a benefit to the state generally. Nothing in this analysis
suggests a distinction based either upon the continuity of that experience or the locale in which it
was gained.
The Honorable Michael A. Stafford    - Page 4       (JC-0473)




                                       SUMMARY

                        For the purposes of chapter 41, subchapter D of the Texas
               Government Code, the accrual of lifetime service credit by an
               assistant prosecutor is not dependent on either the continuity of that
               service or the county in which it is performed.




                                              Attorney General of Texas



HOWARD G. BALDWIN, JR.
First Assistant Attorney General

NANCY FULLER
Deputy Attorney General - General Counsel

SUSAN DENMON GUSKY
Chair, Opinion Committee

James E. Tourtelott
Assistant Attorney General, Opinion Committee
