            THE    ATTORNEY         GENERAL              !
                        OIFTESAS
                        AUSTIN. TEXAS


                       June 11, 1949.

Hon. Robert S. Calvert
Comptroller of Public Accounts
Austin, Texas         Opinion No.   V-843.
                        Re: The ellglblllty of counties
                            to receive the statutory
                            State apportionment toward
                            the compensation of a "county
                            attorney performing the duties
                            of district attorney" when a
                            judicial district is created
                            without providing a district
                            attorney.
Dear Sir:
            Your request for an opinion is as follows:
          "Senate Bill No. 448 passed by the 51st
'1   Legislature abolishes the office of District
     Attorney in the 7th District and prescribes,
     1      and the County Attorney of each County
     c~m~okng said district shall represent the
     State of Texas in all matters wherein the
     State of Texas Is a party, In his respective
     County, and shall receive such fees and com-
     pens&tlon for his services as is provlded,by
     the General Laws of the State of Texas.'
          ,"SenateBill No. 449 passed by the 51st
     Legislature creates the 115th Judicial Dis-
     trict to be composed of TJpshurand Wood Coun-
     ties, which counties were detached from the
     $   Judicial District (composed of Smith Coun-
        . Senate Bill No. 449 neither provides
     fora District Attorney nor for the County
     Attorney to perform the duties of a District
     Attorney in his respective county.
          "This Department requests the answers as
     to whether the County Attorney is to perform
     the duties of the District Attorney in the
     counties of Smith, Upshur and Wood Counties
Hon. Robert S. Calvert,   page 2 (V-843)


     on and subsequent to May 10, 1949, thus mak-
     lng those counties eligible for the appor-
L    tlonment under Article 3912e, Section 13,
     Subsection (b). If these countles are
     eligible for the apportionment would It be
     proper to pay them out of Item 11, $146,429.-
     00, appropri'atedby H. B. No. 244, page 645,
     General and Special Laws of the 50th Legls-
     lature, for the period May 10, 1949, to Aug-
     ust 31, 1949, Inclusive?"
          A county attorney 1s required to perform the
duties of dlstrlct attorney in a county where there is
no district attorney or resident criminal district at-
torney. Article V, Section 21, of the Constitution of
Texas.  In such Instances the Comptroller Is re uired
by Subsection '(b)of~Sectlon 13 and Subsection 4a) of
Section 15 of Article 3912e. V.C.S., to make an appor-
tionment to each county In accordance with the formula
prescribed therein. Item 11 of the appropriations made
to the Comptroller for the current fiscal ear (H. B.
244, Acts 50th Leg., 1947, ch. 338, p. 645 3 iS t0 P&Y
all those counties which come within the classlflcatlons
of Subsection (b) of Section 13 and Subsection a) of
Section 15. Attorney General's Opinion No. V-7 A2.
          Subsection (b) of Section 13 of Article 3912e,
as amended by S. B. 6, Acts 51st Legislature, (effect-
ive March 25, 1949) provides:
         "The compensation of a criminal district
    attorney or county attorney performing the
    duties of district attorney, together with
    the compensation of his assistants, shall
    be paid out of the County Officers' Salary
    Fund, but the State shall pay into such fund
    each year an amount equal to a sum which
    bears the same proportion td the total salary
    of such criminal district attorney or county
    attorney performing the duties of a district
    attorney, together with the salary of his
    assistants, as all felony fees collected by
    such offlclal during the year of 1935 bear
    to the total fees collected by such official
    during such year.
         "In all counties having a county attor-
    ney or a criminal district attorney perform-
    ing the duties of district attorney, and in
    Hon. Robert S. Calvert, page 3 (v-843)


         which counties there were no felony fees col-
         lected from the State in 1935 by the office
         of county attorney or criminal district attor-
         ney In such county, the State shall pay Into
         the County Officers' Salary Fund each year an
         amount e ual to forty-eight and three-fourths
         (48-3/4$7percent of the total salary paid
         each year to such county attorney or criminal
         district attorney, together with the salary
         of his assistants."
            Senate Bill 448, Acts of the slat Legislature
  (effective May 10, 1949) abolished the office of Dls-
  trlct Attorney In the 7th Judicial District of Texas
  (then composed of the counties of Smith, Wood, and
  Upshur) and provided that the county attorney In each
\of those counties shall perform the duties of District
  Attorney. S. B. 449, Acts of the 51st Legislature
  (effective May 12, 1949) then divorced Upshur and Wood
  Counties from the 7th Judicial District and created the
  115th Judicial District to be composed of said counties.
  S. B. 449 did not create an office of District Attorney
  for the newly created District and thereby required the
  County Attorneys In Upshur and Wood Counties to perform
  the duties of District Attorney In the respective coun-
  ties. Article V, Section 21, of the Constitution of
  Texas.
              In view of the foregoing, Smith, Upshur, and
    Wood Counties now come within the classification of
    Subsection (b) of Section 13 of Article 3912e. The
    remaining question, therefore, Is whether an approprla-
    tlon passed by the 50th Legislature can be used to ln-
    elude counties that come within the classification set
    out In the appropriation by virtue of an Act passed
    by the slat Legislature without reference to such ap-
    propriation or the passage of additional approprlatlons
    for such counties.

\             Item 11 (Acts of 50th Legislature, H..B. 244,
    p. 645) provides:
              "Apportionment to counties where county
         officers are paid salaries and where there
         Is a criminal district attorney or county at-
         torney performing the duties of district at-
         torney. (As per subsection b, Section 13 and
         Section 15, Subsection A, Chapter 465, Acts,
         44th Legislature) . . . . $146,429.00.”
    Ron. Robert S. Calvert, page 4 (v-843)


              At the time of the enactment of the approprl-
    atlon of the 50th Legislature, Smith, Upshur, and Wood
    Counties
    ^ _      were not eligible to an apportionment of the
    sun68 appropriated In Item 11 for said counties had a
    district attorney rather than a county attorney or crlm-
    lnal district attorney performing the duties of district
    attorney In the respective counties. Smith, Upshur, and
    Wood Counties became eligible by virtue of the passage
\of    S. B. 448 of the 51st Legislature and are entitled to
    an apportionment according to the formula set out In Sub-
    section (b) of Section 13 of Article 3912e, as amended
    by S. B. 6 of the 51st Legislature, provided an approprl-
    ation Is available to pay the same.
              The 50th Legislature In making the approprla-
    tlon In Item 11 knew which counties In this State were
    eligible to an apportionment under Subsection (b) of
    Section 13 and Subsection (a) of Section 15 of Article
    3912e and could therefore reasonably anticipate the
    amount of money needed to be appropriated for the Comp-
    troller to carry out the apportionment based on the
    formula set out In those sections. The 50th Legisle
    ture did not, It Is believed, anticipate actions of a
    subsequent Legislature. If the 50th Legislature intend-
    ed to Include in the appropriation of Item 11 counties
    which the 51st Legislature would make eligible, there
    would be no way for the 50th Legislature to reasonably
    contemplate what money would be needed by the Comptroller
    to make the apportionment. Therefore, It Is our opinion
    that It was not Intended to Include any county In Item 11
    which would be made eligible by an act of a subsequent
   .Leglslature.
              You are therefore advised that Smith, Upshur,
    and Wood Countles are not Included In Item 11 of Ii.B.
    244, Acts of the 50th Leg.; 1947, Chapter 338, page 645.
    Such counties are, however, eligible to an apportlon-
    ment under Subsection (b) of Section 13 of Article 3912e
    as amended by S. B. 6 of the 51st Legislature by virtue
    of S. B. 448 and S. B. 449 of the 51st Legislature.
    Payments under such apportionment cannot be made by the
    Comptroller until an appropriation Is made to pay the
    same.
                          SUMMARY
              Smith, Upshur, and Wood Counties are el-
     ,   iglble to apportionment under Subsection (b)
         of Section 13 of Article 3912e as amended by
Hon. Robert S. Calvert, page 5 (V-843)


 \   S. B. 6 of the 51st Legislature, and may re-
     ceive payment under an apportionment when an
     appropriation Is made to pay the same. The
     Comptroller of Public Accounts, however, Is
     not authorized to make an apportionment to
     those Counties out of Item 11 of H. B. 244,
     Acts of the 50th Leg., 1947, Chapter 338,
     page 645.
                                     Yours very truly,
                               ATTORNEY GENERAL OF TEXAS



                                     John Reeves
JR:bh                                  Assistant


                               APPROVED
                             +2.--

                               FIRST ASSISTANT
                               ATTORNEY'GENERAL
