                  THE   ATTORSEX-           GESERAL
                            OF   TEXAS



                            December     19, 1990



Honorable   Bob Bullock           Opinion    No.      JM-1264
Comptroller   of Public
  Accounts                        Re:   Whether the county attorney
L.B.J. State Office Bldg.         of Fayette County is entitled to
Austin, Texas    78774            be compensated    as a district at-
                                  torney    (RQ-2084)

Dear   Mr.   Bullock:

     you ask whether the   county attorney of Fayette              County
is entitled to be compensated   as a district attorney.

      Section 24.254 of the Government        Code provides     that the
155th Judicial    District   is composed of Austin, Fayette,          and
wailer Counties.       Section     43.160 of   the    Government     Code
states the t@voters of Austin         and Waller     Counties   elect    a
district    attorney    for    the   155th   Judicial     District    who
represents   the state     in that district      court only in      those
counties."

      Section 45.175 of the Government  Code provides that   in
"Fayette County the county attorney shall perform the duties
imposed    on  and   have the powers   conferred   on district
attorneys   by general law."

      you direct     our    attention     to section     46.001    of   the
Government    Code   that provides       county attorneys      performing
the duties of district       attorney are wprosecutors'* under          the
Professional    Prosecutors     Act.   See Gov't Code ch. 46.          Sec-
tion 46.003(a)     provides    that each wprosecutor      is entitled    to
receive from the state compensation            equal to 90 percent       of
the compensation     that    is provided    for    a district    judge   in
the General Appropriations        Act."    Acts 1989, 71st Leg.,        ch.
1254,    5 2,   at    5057    (effective    September     1,   1989,
amended).      However,    section    46.002   delineates     prosecutozz
subject to this chapter, which is applicable             only to    prose-
cutors in counties named in this section.             Section 46.002(3)
lists    those    county    attorneys     performing     the   duties    of
district   attorney    in designated      counties    as coming     within
the provisions      of this     chapter.      The county     attorney    of
Fayette County is not listed in subsection             (3).




                                       p. 6755
Honorable     Bob Bullock   Page   2   (JM-1264)




      Sections   46.001    and 46.002     were both    enacted at     the
same session of the legislature         as part of Senate Bill 1228,
Acts 1985,     69th   Leg., ch.     480, 5 1, at      1969    (effective
September   1, 1985).      Section 311.026(b)      of the    Government
Code   provides     that   if   the   conflict    between    a general
provision   and   a special     provision    is  irreconcilable,      the
special provision     prevails unless      the general provision       is
the later    enactment    and   the manifest     intent is     that   the
general provision     prevails.     In the instant case, subsection
(3) of section      46.002 listing      county attorneys     performing
the duties of district        attorneys   in designated    counties    as
coming within the act is the special provision.

      The legislative     intent that the provisions       of this    act
apply only to     county attorneys      of counties listed in sub-
section   (3) of section 46.002 is further evidenced           by   House
Bill 600,     Acts 1989,    71st    Leg., ch.     811, 5 1,    at   3676,
amending   subsection    (3) of    section 46.002 by adding        county
attorneys   performing     the duties     of district     attorneys     in
three additional      counties.     Neither    the original     nor   the
amended version of      46.002 lists      Fayette County.       Further-
more, even     though section      45.175    states that    the    county
attorney   of   Fayette County      has    "the powers    conferred     on
district   attorneys    by    general    law,l' chapter     46 is the
exclusive   provision   governing      the pay    of county    attorneys
who perform the duties        of district attorneys.       We   conclude
that the district     attorney of      Fayette County does not       come
within the definition      of    llprosecutorO@ in section 46.001       so
as to be entitled     to compensation     under section 46.003.




               The county attorney,   of Fayette County    is
            not entitled to   be compensated    as a prose-
            cutor under section 46.003 of the     Government
            Code.




                                            JIM      MATTOX
                                            Attorney  General   of Texas

MARYKRLLRR
First Assistant     Attorney   General




                                       p. 6756
Honorable   Bob Bullock   Page     3    (JM-1264)




LOU MCCREARY
Executive Assistant     Attorney       General

JUDGE ZOUIE   STEAKLEY
Special Assistant   Attorney       General

RENEA HICKS
Special Assistant     Attorney     General

RICK GILPIN
Chairman,  Opinion    Committee

Prepared by Tom G. Davis
Assistant Attorney General




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