                             ATTORNEY GENERAL OF TEXAS
                                          GREG        ABBOTT




                                             October 30,2006



The Honorable Tamara Y.S. Keener                        Opinion No. GA-0475
Gillespie County Attorney
125 West Main, Suite L41                                Re: Gillespie county attorney’s authority to use
Fredericksburg, Texas 78624                             money in the hot check fund to sponsor a
                                                        children’s book (RQ-0473-GA)

Dear Ms. Keener:

         You ask about your authority to spend money from the hot check fund to sponsor a children’s
book.’

         You inform us that the Ambassador Company has published a children’s book entitled My
Favorite Book, which is a book on “citizenship and how to be your best” that Ambassador is to
distribute free of charge to all fust grade students in Gillespie County. Brief, sugra note 1, at 2. You
question whether your office can spend $782 from its hot check fund to sponsor the book. See id.;
see also Request Letter, supra note 1, at 1.

        The hot check fund is established by Code of Criminal Procedure article 102.007, which’
provides that a county attorney “may collect a fee if [the attorney’s] office collects and processes a
check or similar sight order” issued or passed in violation of certain Penal Code provisions. TEX.
CODE GRIM. PROC. ANN. art. 102.007(a) (Vernon Supp. 2006). Fees collected under this authority


                 shall be deposited in the county treasury in a special fund to be
                 administered by the county attorney.         Expenditures from this fund
                 shall be at the sole discretion of the attorney and may be used only to
                 defray the salaries and expenses of the prosecutor s office, but in no
                 event may the county attorney         supplement his or her own salary
                 l?om this fund.

Id. art. 102.007(f) (emphasis added). The plain language is clear that “[elxpenditures from this fund
shall be at the sole discretion of the attorney.” Id. The provision’s plain language also limits
expenditures to only those that “defray the salaries and expenses of the prosecutor’s office.” Id.


         ‘See Letter and attached Memorandum Brief from Honorable Tamara Y.S. Keener, Gillespie County Attorney,
to Honorable Greg Abbott, Attorney General of Texas (Mar. 30, 2006) (on file with the Opinion Committee, also
wailabIe ai h~p://p:iiu?nv.oag.state.tx.us) [hereinafter Request Leaer and Brief respectively].
The Honorable Tamara Y.S. Keener - Page 2                       (GA-0475)




Whether a particular expenditure is authorized depends on two factors: (1) whether the expenditure
is related to the official business of the office, and (2) whether any constitutional or statutory
provisions prohibit the expenditure. Tex. Att’y Gen. Op. No. JM-03 13 (1985) at 7. Because we find
no constitutional orestatutory provision that expressly prohibits aS a general matter an expenditure
for children’s books, we focus our discussion on the first factor.

         As to the first factor, county attorneys are generally responsible under the Texas Constitution
to “represent the State in all cases in the District and inferior courts in their representative counties.”
TEX. CONST. art. V, 3 21. But their duties-that         is, those responsibilities that constitute a county
attorn$s    official business-are      to “be regulated by the Legislature” and are thus tied to statutes.
Id. This business is varied. For example, on the one hand county attorneys are litigators, prosecutors
required by the Code of Criminal Procedure “not to convict, but to see that justice is done.” TEX.
CODE Cm.        PROC. ANN. art. 2.01 (Vernon 2005)?             On the other hand, county attorneys are
researchers and writers required to render legal advice to coin@ and precinct officials within the
attorney’s county. TEX. GOV’TCODEANN. 5 41.007 (Vemon2004). As county officials, moreover,
county attorneys hold “virtually absolute sway over the particular tasks or areas of responsibility
entrusted to [them] by state statute.” Fumilias Unidas v. Briscoe, 619 F.2d 391,404 (5th Cir. 1980):

          You ask that we determine as a matter of law that you are authorized to spend $782 from the
hot check fund to sponsor a children’s book. See Brief, supra note 1, at 2. We are unable to make
that determination. Whether the book is connected to your official business requires the application
of facts to law. We cannot resolve fact questions in the o$nion process. See Tex. Att’y Gen. Op.
No. GA-0430 (2006) at 3 n.4. It is instead your duty as the official with discretionaryauthority     over
the funds to make that determination first, subject to judicial review for abuse of that discretion. See
Barrington v. Cokinos, 338 S.W.2d 133, 142 (Tex. 1960) (“[A] court has no right to substitute its
judgment and~discretion for the judgment and discretion of the governing body upon whom the law
 visits the primary power and duty to act.“).




         %z EX Parte Hopson,688 S.W.2d545,549 (TM. Grim. App. 1985)(applying to county attorneys the
admonishment   to further justice in Code of Criminal Procedure article 2.01).
The Honorable Tamara Y.S. Keener     - Page 3       (GA-0475)




                                      SUMMARY

                       The Gillespie County Attorney may use ,money in the
              attorney’s hot check fund to sponsor a children’s book if the book is
              related to the attorney’s official business and no other law prohibits
              such an expenditure.

                                             Very truly yours,




KENT C. SULLIVAN
First Assistant Attorney General

ELLEN L. WITT
Deputy Attorney General for Legal Counsel

NANCY S. FULLER
Chair, Opinion Committee

Daniel C. Bradford
Assistant Attorney General, Opinion Committee
