The Honorable     Harold Hollingsworth                    Opinion    No.    H-       473
Criminal  District   Attorney
Kaufman  %ounty                                           Re: Eligi.bi1it.y of Criminal
Kaufman,   Texas ,’ 75142                                 DistrictAttorney      ,to be a
                                                          member      of ‘State Retirement
                                                          System.


Dear   Mr.   Hdllingsworth:                                         .:              .~


         You,have    requested   an opinion as to whether     the Criminal
District  Attorney    of Kaufman   County is erigible  to participate      in,
&he Employees      Retirement   System of Texas established       by,article
6228a, V. Ti C. S. which’provides       in section 3 (B) (1):

                          The memtiership      of said Retirement          System
                  shall    be composed      of any elective     Stkte    official        or
                   appointee   in an elertive     office of the state; including
                   all elected   or appoi.ntrd members         of State Legisla-
                   ture, and District     Attorneys     receiving       salaries    paid
                  ‘by the State from the State General Revenues Fund,
                   but shall not include any elective         official’in      the
                   Judicial,   Education,     District,   or County,        of the
                   Statue of Texas other than those expressed               eligibk
                   as provi.ded herein.

Thu.s, to be el,igible for the Retirement          program   the Criminal   .District
Attorney    must be a “District Attorney”          and be receiving  a salary    paid
by theState   from the General   Revenue          Fund.           ~”

           The Supreme  Court of Texas         in Hill   Countv v. Sheppard,                  17’8
S. W. 2d 261 (Tex.   Sup. 1944) defined        the=        “criminal district
attorney”:




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 The Honorable          Harold    Hollingsworth        page   2   (H-473)




                              . * . it is,our   opinion that the term criminal
                        district   attorney   refers    to a class or kind of
                        district   attorneys,     and that a criminal   di,strict
                        attorney    is a district   attorney   within the meaning
                        of the Constitution.

                              The’ office of District      Attorney,    including    that
                        of c.riminal     district  attorricy,    is a constitutional
                        office,  ,the duties and compensation           of which are
                        provided    for in Article      V, Se,ction 21, of the
                        Constitution      . .’ . .    178 S. W. 2d at 263.

 See also:
--            N@aI v. Sheppard,        209 S. W. 2d 388 (Texy Civ.              App. --T;exarkana
.1948, writ   ref.),;      and 20 TEX.  JUR. 2d District   Attorney              $1 (1960 ed).

            Under the,provisions        of articl,e 326k-71, which created, ,the office
  of ,the Criminal     Dis,t.rict Attorney    of Kaufman   County, ..the Criminal    District
 Attorney’s      salary is paid out of both .state and county funds.         Section  4, of
.:articli   326k-71    provi.des:

                          The    Crimi’nal   District    Attorney   of Kaufman      Count9
                     shall be commissioned         by the governor,       and shall,
                     receive    as compensation       arr annual salary     payable   in
                    ,equal, monthly installment,s...        ,The salary   shall include
                     the amount, equ,al, to ,the, amount paid dii trict attorneys
                     by the State of Texas,,.and       shall. be paid by the comptroller
                     of public accounts,      as,appro,p.riated     by the legi.slature.
                     In .addition,   the Cri.minal DistrLct Attorney         of Kaufman
                    County     shaI1 be.paid.in     e~ial bimonthly     installments     out
                     of the oHicers’     salary fund of Kaufman         County an amount     ”
                     which,    when added to the amount paid by the State 0
                     Texas,     equals an amount not less than 90 p,ercent of .the
                    total .sa,i,a:ries paid to the Judg,e of th,,e 86,th Judickal Di,st’rict
                    ‘by the State .of .Tesas        and Kaumnm,        ‘VanZandt,      ‘and
                     Rockwall   ccunties~

           In Attorney    .General Opj,ni,on M-10,87 (197.2) this ~pffice held that:,a
-,+Zr?minal :Z&stcict ~~t.or~~~~~,,.pa%.il.
                                         e,nWe,l~y from s++,te ~fund.s .was eligible
 to ~particl.pate   in the state retirement    program   auiho~rized by,article




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            The Honorable      Harold   Hollingsworth       page 3    (H-473)




            6228a.   Similarly   it is our opinion that the Criminal      District  Attorney
            of Kaufman    County is eligible   to participate   in the Employees     Retirement
            System   of Texas established     by article   6228a to the extent of the amount
            of his salary   paid by the state.    This conclusion    is in accordance     with
            the general    program     outlined in article   6228g providing       for a County
            and District    ,Retirement     System.    See
                                                       -     section   11(A)  (1) of article 6228g,
            entitled  “optional    coverage     of employees   receiving     supplemental    compensa-
            tion from participating       counties”   and providing    that

                                    The governing     body of any participating       ccunty
                              which ,Rays compensation         from county funds to a
                              person reg,ularly      engaged in the performance         of
                              the duties of an elective      or appointive    State or
                              district  office in addition to ,that.received       from
                              the State of Texas,      may by order of the governing
                              body p,rovide that the persons         shall ba considered
                              em,ployees     of the county, and as such eligible         for
                              membership       in the~system     to the extent of .the
                              compensation       paid the person by the county.

                                               SUMMARY

                                    The Criminal   Di.strict Attorney    of Kaufman
                              ~County is eligible  to participate    in the Employees
                             - Retirement   System’establjsbad      by article  6228a,
                               V. T. C. S., to the extent ot the amount of his salary
                               paid by the state.




            C. ROBERT   HEATH,          Chairman
            Opinion Committee




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