                        The Attorney              General of Texas
                                          April   15,    1980
MARK WHITE
Attorney General


                   Honorable Reynaldo F. Luna                   Opinion No. ~~-172
                   County Attorney
                   Duval County                                 Re: Authority of commissioners
                   San Diego, Texas 78384                       court with regard to appointment
                                                                of an assistant county attorney.

                   Dear Mr. Lune:

                          You ask several questions regarding the appointment of an assistant
                   county attorney.    You have provided some information about the factual
                   background to your request. At the time of the October budget hearing for
                   1980, the commissioners court left the position of the assistant county
                   attorney out of the budget. The county judge stated that the position was
                   not being abolished, but that the funds were being transferred from the
                   county attorney’s budget to the general fund.       Your former assistant
                   resigned effective December 31, 1979, and you appointed a new assistant.
                   The commissioners court vetoed the appointment of your assistant.      You
                   nonetheless have been paying your assistant out of your salary pending e
                   legal determination of his salary. The commissioners court has contracted
                   with another attorney to represent the county in litigation, provide legal
                   advice, and perform other legal services.

                          You have asked several questions, which we combine in order to
                   answer them more easily.      Your first two questions concern whether the
                   commissioners court may legally veto the appointment of an assistant
                   county attorney for various reasons.     Article 332e, V.T.C.S., governs the
                   employment of assistant county attorneys. It repeals conflicting statutes to
                   the extent of conflict.    V.T.C.S. art 332a, S 9. We believe article 332a,
                   V.T.C S., repeals articles 331 and 3902, V.T.C.S., insofar as they require the
                   consent of the commissioners court to the appointment of assistant county
                   attorneys.  Article 332e, V.T.C.S., authorizes the county attorney to hire his
                   assistants without the consent of the commissioners court. See Attorney
                   General Opinion H-908 (1976). The commissioners court may, however, veto
                   the salary set by the county attorney for his assistant.    Attorney General
                   Opinion H-922 (1977).

                          You next ask whether the county attorney must ask the commissioners
                   court for its yearly consent to make the position of assistant county
                   attorney available.  As we said in answer to your first question, the county




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Honorable Reynaldo F. Luna    -    Page Two     (NW-172)



attorney appoints his assistants and sets their salaries. The commissioners court may,
however, reject the salary proposed by the county attorney.        See Attorney General
Opinion H-~.908(1976). The county attorney may then propose e different salary.

       You next ask what would constitute an attempt to influence the selection of e
deputy or assistant within the prohibition contained in article 3902, V.T.C.S. While this
statute no longer applies to the appointment of an assistant county attorney, the
prohibition against an attempt by the commissioners court or any member thereof “to
influence the epointment of any person as deputy, assistant or clerk in any office”
continues to apply. Your question requires a resolution of factual issues unique to each
case and cannot be addressed in the opinion process.

        You finally ask whether the county attorney may pay the wages of his assistant out
of his own personal funds because the commissioners court has refused to authorize a
salary.    Attorney General Opinion O-3448 (1941) states that a county attorney is not
prohibited from paying an assistant additional compensation from his own funds. This
opinion has not been overruled and we believe it still correctly states the law. Although
numerous judicial opinions state that an officer may not contract to receive compensation
greeter then that fixed by law, those cases involve attempts to grant him additional
compensation from public funds or to get compensation from members of the public for
services they were entitled to receive gratuitously.        Crosby County Cattle Co. v.
McDermett, 281 S.W. 293 (Tex. Civ. App. - Amarillo 1926, no writ); Jones v. Veltmann, 171
S.W. 287 (Tex. Civ. App. - San Antonio 1914, writ r&d); Stringer v. Franklin County, 123
S.W. 1168 (Tex. Civ. App. 1909, no writ). We do not believe the county attorney is barred
from voluntarily paying additional compensation to his assistant.

                                       SUMMARY

           Article 332a, V.T.C.S., authorizes the county attorney to employ
           his assistants without the consent of the commissioners court. The
           commissioners court may, however, reject the salary proposed by
           the county attorney.    The county attorney may pay his assistant
           additional salary out of his own funds.

                                              Very truly yours,


                                         AK-  MARK     WHITE
                                              Attorney General of Texas

JOHN W. FAINTER, JR.
First Assistant Attorney General

TED L. HARTLEY
Executive Assistant Attorney General




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Honorable Reynaldo F. Luna   -   Page Three     (I&‘-172)



Prepared by Susan Garrison
Assistant Attorney General

APPROVED:
OPINION COMMITTEE

C. Robert Heath, Chairman
Jim Allison
Walter Davis
Susan Garrison
Rick Gilpin
Bruce Youngblood




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