             THE     L+I~TORNEY              GENERAL
                             OF-XAS




Hon. Jimmy Morris                      Opinion No. M- 1087
Criminal District Attorney
Navarro County Courthouse              Re:    Whether the Criminal District
P. 0. Box 1143                                Attorney of Navarro County may
Corsicana, Texas 75110                        become a member of the State
                                              Retirement S,ystem, pursuant to
                                              Article 6228a, Vernon's Civil
                                              Statutes, or the District and
                                              County Retirement System, pur-
                                              suant to Article 6228g, Vernon's
Dear Mr. Morris:                              Civil Statutes.

          Your recent letter requesting the opinion of this office
concerning the referenced matter states, in part, as follows:

          "The Criminal District Attorney of Navarro
     County is paid entire,ly from State funds. Art.
     326k-63. Navarro County does not supplement the
     salary.

          "Whichretirement system may the Criminal
     District Attorney of Navarro County join--the
     'State' (art. 6228a) or the 'District and
     County' (art. 6228g)?"

          Section 3(B) (1) of Article 6228a, Vernon's Civil Statutes,
which is the Act establishing the Employees Retirement System of
Texas, provides as follows:

          "The membership of said Retirement System
     shall be composed of any elective state official
     or appointee in an elective office of the state,
     including all elected or appointed members of
     the State Legislature, or elected by the members
     of either or both houses of the State Legislature,
     and also including District Attorneys receiving
     salaries paid by the State from the State General
     Revenue Fund, but shall not include any elective
     official in the Judicial, Education, District, or


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    Hon. Jimmy Morris, page 2          (M-1087)



          County, of the State of Texas other than those
          expressed eligible as provided herein."  (Em-
          phasis added.)

              The Texas County and District Retirement System is au-
    thorized by Section 62(c) of Article XVI of the Constitution of
    Texas. Pursuant to that constitutional provision, Article 6228g,
    Vernon's Civil Statutes, was enacted and sets forth the requisites
    and procedures for the County and District Retirement System. Sec-
    tion 2(6) of Article 6228g defines "employee" as follows:

                "'Employee' means any person who is cer-
          tified by a subdivision as being regularly engaged
          in the performance of the duties of an elective or
          appointive office, or of any position of employment
          with the subdivision, which office or position nor-
          mally requires actual performance of duty during not
          .less than nine hundred (900) hours a year, and as
          receiving compensation from the subdivisionforhe
          performance of such duties. Upon the terms and
          conditions set out in Section llA, the term 'employee'
           includes any person regularly engaged in the perform-
           ance of the duties of an elective or appointive State
          or district office who receives compensation, in ad-
          dition to that received from the State of Texas, from
          the county or counties in which he serves, and the
          person with the approval of the respective subdivision
           shall be entitled to participate in the System to the
          extent of any additional compensation received from
           the participating subdivisions.   The term 'employee'
          does not include any person as to any period of serv-
           ice for which he would be eligible to be included in
          or entitled to receive credit in s . . the Employees
           Retirement System of Texas.   . . ." (Emphasis added.)

              Your office was established by Article 326k-63, Vernon's
    Civil Statutes. Section 7 of that Article provides as follows:

               "The ~criminal district attorney shall be com-
          pensated for his services by the state in such manner
          and in such amount as may be fixed by the general law
          relating to the salary to be paid to district attorneys
          by the state, and in addition his salary may be sup-
          plemented by the commissioners court in such amount as
          it deems advisable."


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Hon. Jimmy Morris, page 3         (M-1087)



          By your letter, you have advised us that, at present,
your salary is paid solely out of State funds.

          It is evident that you are not eligible for membership
in the County and District Retirement System, inasmuch as you do
not receive any compensation from Navarro County. See the under-
scored provisions of Section 2(6) of Article 6228g, supra.

           Thus, the question remains as to whether you are eligible
tom participate in the Employees Retirement System of Texas. Section
3(B)(l) of Article 6228a, quoted supra, in setting forth those persons
qualified for membership in that Retirement System, provides that the
System shall include "District Attorneys receiving salaries paid by
the State from the State General Revenue Fund. . ." District At-
torneys paid by the State were included as being eligible for member-
ship in the Employees Retirement System by the amendment in Acts 60th
Legislature, Regular Session 1967, ch. 279, p. 668.

          We must now consider whether you, as a criminal district
attorney paid wholly with State funds, fall within the term "district
attorneys" used in Article 6228g.

          The term "criminal district attorney" has heretofore been
defined by the Supreme Court of Texas. In Hill County~ v. Sheppard,
142 Tex. 358, 178 S.W.Zd 261 (1944], that court stated as follows:

          "It will be noted that the Constitution
     [Article V, Section 211 refers to a county
     attorney, a district attorney, and a criminal
     district attorney. What is meant by a 'crim-
     inal district attorney' as used in the Consti-
     tution, and what is the difference, if any,
     between that office and the office of district
     attorney, and is the office of criminal district
     attorney a constitutional office?


          II
               . It is sufficient to say that when
                   .   .

     the Constitution is construed in the light of
     the statute above quoted [Art. 349, V.C.S.],
     it is our opinion that the term criminal dis-
     trict attorney refers to a class or kind of
     district attorneys, and that a criminal dis-
     trict attorney is a district attorney within
     the,meaning of the Constitution.

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Hon. Jimmy Morris, page 4           (M-1087)



          "The office of District Attorney, includ-
     ing that of criminal district attorney, is a
     constitutional office, the duties and compen-
     sation of which are provided for in Article V,
     Section 21, of the Constitution above quoted..
          II 142 Tex. at 361-62, 178 S.W.Zd at
     262-63.   (Emphasis added.)

          See, also, Jones v. Anderson, 189 S.W.2d 65 (Tex.Civ.App.
1945, error ref.), Neal v. Sheppard,--20,9S.W.2d 388 (Tex.Civ.App.
1948, error ref.) and 20 Tex.Jur.2d 297, District Attorneys, Sec. 1.

          In view of the foregoing authorities, we therefore hold
that you, as a criminal district attorney, paid entirely from State
funds, fall within the purview of the term "district attorney" used
in Article 6228a; accordingly, you are entitled to participate in
the Employees Retirement System of Texas.

          We are further of the opinion that criminal district at-
torneys paid by a county are not entitled to participate in the Em-
ployees Retirement System of Texas.

                       SUMMARY

          The Criminal District Attorney of Navarro
     County, who is paid entirely with State funds,
     is a "district attorney" as that term is used
     in Article 6228a, Vernon's Civil Statutes, and
     is therefore entitled to participate in the Em-
     ployees Retirement System of Texas.

          The Criminal District Attorney of Navarro
     County, who receives no compensation from the
     County., is not entitled, pursuant to Article
     6228g, Vernon's Civil Statutes, to participate
     in the Texas County and District Retirement
     System.

          A criminal district attorney paid by a
     county is not entitled to             in the
     Employees Retirement Syste




                                 At&nev   General of Texas
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Hon. Jimmy Morris, page 5           (M-1087)



Prepared by Austin C. Bray, Jr.
Assistant Attorney General

APPROVED:
OPINION COMMITTEE

Kerns Taylor, Chairman
W. E. Allen, Co-Chairman
John Grace
Bob Lattimore
Jim Swearingen
Roger Tyler

SAMUEL D. MCDANIEL
Staff Legal Assistant

ALFRED WALKER
Executive Assistant

NOLA WHITE
First Assistant




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