                                        The Attorney General of Texas
                                                       tfsy   23,   1985
 JIM MATTOX
 Attorney General


 Supreme Court Building
                                      Ronorable Neal E. Binningham            Opinion No. JM-319
 P. 0. BOX 12546                      Caas County District Attorney
 Austin, TX. 76711- 2546              P. 0. Box 555                           Re: Whether a county is required
 512i475.2501                         Linden, Texas   755 5:3                 to contribute to the compensation
 Telex 910,674-1367
                                                                              of a criminsl district attorney
 Telecopier   512/475-0266

                                      Dear Mr. Birmingham:
 714 .tackson, suite 700
 Dallas, TX. 75202.4506                    You inform us that you were appointed to fill an unexpired term
 2W742-0944
                                      of the office of criminal district attorney of Cass County because of
                                      the resignation of the elected official. You also inform us that you
     4624 Alberta   Ave.. Suite 160   requested, but were refused, a salary supplement in addition to the
     El Paso, TX. 79905-2793          salary you receive from the state under article 332b-4, V.T.C.S.
     915/533-3484                     [hereinafter the Professional Prosecutors Act], from the Cass County
                                      commissioners court. You request the supplement to compensate you for
*-                                    civil work which in 'thiscase you performed for Cass County but which
         1 Texas, Suite 700
     , vmsto”, TX. 77002-3111         is normally performed by a county attorney. In that regard you first
     7131223-W                        ask:

                                                Does the commissioners court have the discretion
     606 BroadwaY, Suite 312
                                                to refuse [to compensate the criminal district
     Lubbock, TX. 79401-3479
     606i747.5236
                                                attorney for legal work performed as ,county
                                                attorney]"
     4309 N. Tenth. Suite B                The office of C.assCounty criminal district attorney ,was created
     McAllen, TX. 78601-1665
     5121662.4547
                                      by the legislature in 1955. See V.T.C.S. art. 326k-32, 41. Article
                                      326k-32, section 3, V.T.C.S., Eidas:

     MO Main Pena, suite 400                       Sec. 3.    It shall be the duty of the Criminal
     San Antonio, TX. 76205.2797
                                                District Attorney of Cass County, as herein
     512l225-4191
                                                provided, to be in attendance upon each tern and
                                                all sesaitms of the District Court of Cass County
     An Equal OpportUnitYI                      and all o:ithe sessions and terns of the inferior
     Affirmative Actlon Employer                courts of Caes County held for the transaction of
                                                criminal ‘business,  and to exclusively' represent
                                                the State cf Texas in all criminal matters pending
                                                before saj.dcourts and to represent Cass County in
                                                all matter:3 pending before such courts and any
                                                other court where Cass County has pending business
                                                of any kird. nature or interest and in addition to
                                                the specified powers given and the duties imposed
                                                upon him by this Act, all such powers, duties and
                                                privileges within Cass County as are now by law


                                                                    p. 1459
Bonorable Neal E. Birmingham - Page 2 (JM-319)




          conferred or which may hereafter be conferred upon
          the district and county attorneys in the various
          counties and judicfal districts of this State. He
          shall collect such fees, commissions and perqui-
          sites as are now or hereafter may be provided by
          law for similar se:nricesrendered by district and
          county attorneys of this State.

Thus, the criminal district .sttorney of Cass County is required to
perform duties which are .u,rmally performed by both a district
attorney and a county attorney. Under the provisions of article
332b-1, V.T.C.S., the commissioners court of Cass County had
permissive authority to p~.y its criminal district attorney any
compensation it deemed advisable in addition to the salary paid the
criminal district attorney by the state. See Acts 1977, 65th Leg.,
ch. 742, 01, at 1866. However, in 1983,the        legislature amended
article 332b-4, section 2, V.T.C.S., the Professional Prosecutors Act,
to include the Cass County c.riminal district attorney in that act.
See Acts 1983, 68th Leg., cl).. 789, $1, at 4624, eff. June 19, 1983.
Section 3 of the Professional.Prosecutors Act provides:

             Sec. 3. --Each district attorney governed by
          this Act shall receive from the state compensation
          equal to 90 percel;i:of the compensation that is
          Provided for a drstrict judge in the General
          Appropriations Act, Each commissioners court may
          supplement the district attorney's state salary,
          but shall in no event pay the district attorney an
          amount less than thlzcompensation it provides its
          highest paid distr:.ctjudge. (Emphasis added).

V.T.C.S. art. 332b-4, 93.       Accordingly, we conclude that      the
Professional Prosecutors Act is controlling in your situation.

     In response to your fire,tquestion, we believe that the Profes-
sional Prosecutors Act authorizes the Cass County commissioners court
to refuse to compensate the criminal district attorney for legal work
performed as county attorney. Cass County does not have an office of
county attorney. The criminal district attorney is required to
perform those duties along wf.th his duties as a criminal prosecutor.
See V.T.C.S. art. 326k-32, !i3; Tex. Const., art. 5, $21; Neal v.
Sheppard, 209 S.W.2d 388, 3X (Tex. Civ. App. - Texarkana 1948, writ
ref'd).

     However, article 332b-l., section 3, V.T.C.S., as quoted above,
permits the commissioners court to supplement the district attorney's
state salary. We also note that article 332b-4, section 3, V.T.C.S.,
provides that a commissionc:rs court "may" supplement the district
attorney's state salary. That term generally creates a discretionary
and not a mandatory function.. See Matter of Estate of Minnick, 653
S.W.2d 503 (Tex. Civ. App. - Amamo    1983, no writ). To construe the



                              p. 1460
     Honorable Neal E. Birmingham - Page 3 (JM-319)




     term "may" in this context as discretionary would be consistent with
     section 6, which implies that the local supplementation of the
     district attorney's salary is not necessary to give effect to the
     purpose of the statute. V.T.C.S. art. 332b-4, 66. Thus, the Cass
     County commissioners court nay refuse to supplement the salary of the
     criminal district attorney, even though his duties include civil work
     normally performed by a cour,tyattorney.

          You next ask:

              Does the commissioners court have the discretion
              to set any amount,,*,   a dollar a year, or must
              it pay a rea1isi:j.camount consistent with the
              duties performed?

          As indicated above, the Professional Prosecutors Act is con-
     trolling as to the compensation of the criminal district attorney in
     Cass County. The only provision in the act establishing a criterion
     as to the amount of salary supplement the commissioners court may
     provide the criminal distrjct attorney is found in section 3, which
     provides in part:

               Each commissionerl;court may supplement the dis-
,-
               trict attorney's sitate salary, but shall in no
               event pay the district attorney an amount less
               than the compensat:on it provides its highest paid
               district judge. (Emphasis added).

     V.T.C.S. art. 332b-4, 93. Thus, the minimum amount the commissioners
     court may supplement is set by the amount it determines to supplement
     the salary of its highest pr.i,d
                                    district judge.

          You inform us that Caris County has only one district judge and
     that the only supplement by the commissioners court to the judge's
     state salary is $100.00 pr:r month for serving as a member of the
     juvenile board. This office has previously held that, in computing a
     district attorney's supplementary salary, a county must include any
     supplement it pays district judges for services on the juvenile board.
     See Attorney General Opinion MN-87 (1979). Therefore, we conclude
     that, should the Cass Count:7commissioners court decide to supplement
     the criminal district attorazy's state salary under the circumstances
     you describe in your requ?:;t, it must provide him not less .than
     $100.00 per month.

                                  SUMMARY

                  Article 332b-4, section 3, V.T.C.S., does not
               require a commisc;ioners court to supplement the
 -             salary of a crj.minal district attorney whose
               duties include lelcalwork normally performed by a
               county attorney in counties having the official.


                                     p. 1461
Eonorable Neal E. Birmingham - Page 4   (JM-319)




          Article 332b-4, section 3, V.T.C.S., does require
          a minimum amount by which a county commissioners
          court may supplenent the state salary of a
          criminal district a,ttorney.




                                        JIM     MATTOX
                                        Attorney General of Texas

TOM GREEN
First Assistant Attorney General

DAVID R. RICBARDS
Executive Assistant Attorney General

ROBERT GRAY
Special Assistant Attorney Goneral

RICK GILPIN
Chairman, Opinion Committee

Prepared by Tony Guillory
Assistant Attorney General

APPROVED:
OPINION COMMITT.EE

Rick Gilpin, Chairman
Susan Garrison
Tony Guillory
Jim Moellinger
Jennifer Riggs
Nancy Sutton




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