    OFFICE OF THE ATTORNEY GENERAL . STATE OF TEXAS

   JOHN CORNYN




                                           April 12,200l




The    Honorable Phil Garrett                         Opinion No. JC-0365
Palo   Pinto County Attorney
P.O.   Box 190                                        Re: Disposition of state funds received by a
Palo   Pinto, Texas 76484                             county from a county attorney’s partial waiver of
                                                      annual compensation (RQ-03 10-JC)
Dear Mr. Garrett:

        You ask whether the commissioners court has sole authority to decide how to spend state
funds received from a county prosecutor’s partial waiver of annual compensation under chapter 46
of the Government Code. The funds are received by the county, not by the county prosecutor, and
spending decisions are to be made by the commissioners court, subject to statutory limits on using
these funds. The commissioners      court must use these funds for the expenses of the county
prosecutor’s office and may not reduce the county funds it provides for the prosecutor’s office as a
result of receiving state funds.

         Your question relates to Government         Code chapter 46, which provides for state
supplementation of the salaries of certain prosecutors who do not engage in the private practice of
law. Chapter 46 applies to a “state prosecutor,” defined as “a district attorney, criminal district
attorney, or county attorney performing the duties of district attorney who serves in a district or
county listed in Section 46.002.” TEX. GOV’T CODEANN. 4 46.001(3) (Vernon Supp. 2001). State
prosecutors receive a state supplement of $22,500 a year to help defray the salaries and expenses of
their offices. See id. 8 46.004(a). Pursuant to a 1999 amendment, chapter 46 provides for a salary
supplement for a “county prosecutor,” defined as “a constitutional county attorney who does not
have general felony jurisdiction and who is not a state prosecutor.” Id. 8 46.001(l); see Act of May
26, 1999, 76th Leg., R.S., ch. 1570, 8 1, 1999 Tex. Gen. Laws 5392. Government Code section
46.003 1 states the formula for determining a county prosecutor’s state salary supplement, basing it
on a district judge’s “benchmark salary” as provided in the General Appropriations Act. See TEX.
GOV’TCODE ANN. 8 8 46.00 l(2) (defining “benchmark salary”); .003 1 (Vernon Supp. 2001); General
Appropriations    Act, 76th Leg., R.S., ch. 1589, art. IV-17, 1999 Tex. Gen. Laws 5446, 5942
(“Judiciary Section, Comptroller’s Department”). If receiving compensation under section 46.003 1
“causes the gross salary of a county prosecutor to exceed the benchmark salary, or if any amount of
the compensation     is waived by the prosecutor, the excess or waived amount shall be used for
expenses of the county prosecutor’s office.” TEX. GOV’T CODEANN. 8 46.003 l(c) (Vernon Sup.
2001).
The Honorable Phil Garrett - Page 2                     JC-0365




        You inform us that the Palo Pinto County Attorney is a county prosecutor within chapter 46
of the Government Code.’ He filed a written waiver of $2,905 of his annual compensation for the
2000-2001 budget year and submitted a request to purchase computer software for his office from
the waived compensation, which the commissioners court denied.* You ask whether the funds a
county receives from a county prosecutor’s partial waiver of annual compensation may be expended
only at the discretion of the commissioners court3

          You suggest that the answer to your question is controlled by Attorney General Opinion JM-
428 (1986), which concluded that state funds received by a district attorney under section 46.004 of
the Government Code were not subject to appropriation or control by the commissioners court4 See
Tex. Att’y Gen. Op. No. JM-428 (1986) at 3; see also Tex. Att’y Gen. Op. No. JM-70 (1983)
(concerning county budget for prosecuting attorney’s fees). Under section 46.004, a state prosecutor
“is entitled to receive not less than $22,500 a year from the state to be used by the prosecutor to help
defray the salaries and expenses of the office.” TEX. GOV’T CODEANN. 8 46.004(a) (Vernon Supp.
2001). Because the statute authorizes the state prosecutor to receive and use the funds, the
commissioners court did not have possession or control of the funds and had no authority to veto the
district attorney’s decisions on spending them. See Tex. Att’y Gen. Op. Nos. JM-428 (1986) at 3;
JM-70 (1983) at 2-3.

        Attorney General Opinion JM-428 does not address the expenses of county prosecutors, who
were not covered by Chapter 46 of the Government Code when that opinion was issued. See Act
of May 26, 1999,76th Leg., R.S., ch. 1570, 0 1,1999 Tex. Gen. Laws 5392 (amending chapter 46
of the Government Code to include county prosecutors). Moreover, state funds allocable to county
prosecutors are governed not by section 46.004 of the Government Code but by section 46.003 1,
which operates differently from section 46.004. Thus, Attorney General Opinion JM-428 and its
analysis of section 46.004 are not relevant to your question.

        Section 46.003 1 requires the county prosecutor’s state salary supplement to be paid to the
county and disbursed by the county to the prosecutor.      It provides that “[a]t least annually the
comptroller shall pay to the salary fund of each coulzty that is entitled to receive funds under this
section an amount authorized under this section to supplement the salary of the county prosecutor.”
TEX. GOV’T CODEANN. 0 46.0031(d) (V emon Supp. 2001) (emphasis added). In addition, “each



         ‘See Letter from Honorable Phil Garrett, Palo Pinto County Attorney, to Susan Gusky, Chair, Opinion
Committee, Office of the Texas Attorney General at 1 (Nov. 10,200O) (on file with Opinion Committee) [hereinafter
Request Letter].

        *See Request Letter, supra note 1, at 1.

        3See Request Letter, supra note 1, at 1.

        4See Request Letter, supra note 1, at 2.
The Honorable    Phil Garrett - Page 3              JC-0365




county that has a county prosecutor is entitled to receive from the state supplemental salary
compensation to bepaid by the county to the county prosecutor. . . .” Id. 9 46.0031(a) (emphasis
added). Thus, the state salary supplement, including the portion waived by the county prosecutor,
goes to the county salary fund. See TEX. LOC. GOV’T CODEANN. 4 154.007(a) (Vernon 1999)
(commissioners court may direct that money that would otherwise be deposited in salary fund shall
be deposited in county general fund). Unlike the state prosecutor’s expense fund, it is subject to the
county budget process. See id. $Xj 111.004(b), .034(b) ( among other financial information, budget
must show cash on hand in each county fund and funds to be received from all sources); see also
Comm ‘rs Court v. Criminal Dist. Attorney, Caldwell County, 690 S.W.2d 932, 936 (Tex.
App.-Austin 1985, writ ref d n.r.e.) (prosecutor has statutory authority to “set” salaries for his or her
employees, but ordinary budget processes apply to those salaries, and commissioners court may
change prosecutor’s salary recommendations).

         Government Code chapter 46 nevertheless places some limits on the commissioners court’s
discretion in spending the compensation waived by the county prosecutor. This money “shall be
used for expenses of the county prosecutor’s office,” TEX. GOV’T CODEANN. 0 46.003 1(c) (Vernon
Supp. 2001), and the commissioners court “may not reduce the county funds provided for the salary
or office of the prosecutor as a result of the funds provided by” Government Code chapter 46, id. 8
46.006(b). Within these limits, the commissioners court may exercise its reasonable discretion as
to which expenses of the county prosecutor’s office will be funded from the waived amount of
compensation. See Tex. Att’y Gen. Op. No. JC-02 14 (2000) (respective authority of county sheriff
and commissioners court over budgetary matters).

         Section 46.0031 of the Government Code may be contrasted with Code of Criminal
Procedure article 102.007, pertaining to the fees collected by a county attorney, district attorney, or
criminal district attorney for collecting a “hot check.” These fees “shall be deposited in the county
treasury in a special fund to be administered by the county attorney, district attorney, or criminal
district attorney.”     TEX. CODE GRIM. PROC. ANN. art. 102.007(f) (Vernon Supp. 2001).
“Expenditures from this fund shall be at the sole discretion of the attorney and may be used only to
defray the salaries and expenses of the prosecutor’s office . . . .” Id. This fund is wholly outside the
county budgeting process. See Tex. Att’y Gen. Op. No. DM-357 (1995) at 6.

         Section 46.003 1 may also be contrasted with section 23.122 of the Texas Tax Code. Like
Code of Criminal Procedure article 102.007, section 23.122 of the Tax Code gives a county officer
discretion to spend a special fund without going through the county budget process. See TEX. TAX.
CODEANN. 8 23.122 (Vernon Supp. 2001). Section 23.122 provides that the county tax assessor-
collector shall retain the interest from the Motor Vehicle Inventory Tax Fund to defi-ay the costs of
administering the procedure for prepaying the tax. See id. 8 23.122(c). The tax assessor-collector
may decide how to spend the fund for administrative costs without the commissioners court’s
approval. See Tex. Att’y Gen. Op. Nos. JC-0149 (1999) at 2; JC-0135 (1999) at 2; DM-398 (1996)
at 3.
The Honorable Phil Garrett - Page 4             JC-0365




        Section 46.0031 of the Government Code does not create a special fund under the county
prosecutor’s control or otherwise remove the commissioners court f?om the process of budgeting the
funds attributable to the county prosecutor’s partial waiver of annual compensation.           The
commissioners court may exercise reasonable discretion in allocating those funds to the expenses
of the county prosecutor’s office.
The Honorable   Phil Garrett - Page 5               JC-0365




                                        SUMMARY

                         State funds resulting from a county prosecutor’s partial waiver
                of annual compensation under Government Code chapter 46 are
                received by the county and not the county prosecutor. These funds
                are subject to the county budget process and are to be allocated by the
                commissioners     court to the expenses of the county prosecutor’s
                office. The commissioners court may not reduce the county funds
                provided for the prosecutor’s office as a result of the state funds
                provided under chapter 46.

                                                Y   rsve    trul ,



                                              qa(d,
                                                JokN     CORNYN
                                                Attorney General of Texas



ANDY TAYLOR
First Assistant Attorney General

CLARK KENT ERVl-N
Deputy Attorney General - General Counsel

SUSAN D. GUSKY
Chair, Opinion Committee

Susan L. Garrison
Assistant Attorney General - Opinion Committee
