HonorableC. H. Cavnem
stat.5
     Auditor
Austin,Texas

Dear Sir:                                opinionNo. O-6676

                                         Re: State Apportionments to counties
                                             operatingunder officers'Salary
                                             Fund and where there is a Criminal
                                             DistrictAttorneyor $ountyAttor-
                                             ney performingthe dutiiee of Dis-
                                             trict Attorney.

         We are in receiptof your requestfor an opinionon the abbve mat-
ter, said requestbeing a6 follows:

        "In connectionwith an audit we are now making of the Ju-
    diciarySectionof the State Comptroller'sDepartmentfor the
    three years ended.
                     August 31, 1944, we find it necessaryto re-
    quest an opinionfrom your Departmenta8 to the followingappor-
    tionmentappropriations:

         "Apportionmentsto countieswhere county officersare paid
    salariesand where there is a CriminalDistrictAttorneyor
    CountyAttorneyperformingthe duties of DistrictAttorney (for
    33 countiesin 1940, per Sub-sectionB, Section13, Chapter465,
    Acts Forty-fourthLegislature).

            "Year Ended August 31st:

                     "1942             $146,42y.O0
                      1943              146,429.00
                      1944              146,429.00

            "Article3912e, Section13B, reads as follows:

         "The compensationof a criminaldistrictattorneyor county
    attorneyperformingthe duties of dietrictattorney,together
    with the compensationof his assistants,shallbe paid out of
    the County Officers'SalaryFund, but the State shall pay into
    such fund each year .!+n
                           amount equal to a sum which bears the
    same proportionto the total salaryof such criminaldistrict
    attorneyor countyattorneyperformingthe duties of a district
    attorney,togetherwith the salary of his assistants,as all
Hoti.C. H. Caress, page f (0-6676)



    felay fees sollect.rdby such officialduringthe year 1935 bear
    to the total fees cc;i.lected
                              by such officialduring such year.'

         "We qucte, I.:part, from AttorneyGeneral'sOpinionaddressed
    tcjthe CrLaptroile.r        Accouds under date of September15,
                       cf Pub1j.c
    1936, relativeto t,'ie:
                          ix1usl.o~cd stenographers,bookkeepersand
    invest!.gators
                 as 'assistants':

         "*Recel.ptis her+y ackzodedged op your letterof Sept&,er
    15, 1936 whereinyou referto subsection(b) of Section13 of
    Sena+:eBill NG. 5, Acts of thz SecondCall& Sessionof the Forty-
    fourthLegislatureand wish to be advisedas to whetheror not
    StenO@apheI'S, bookkeepers,and investigators  shouldbe consid-
    ered as assistads unaer the terms Gf this Section.. . . . . .
    While stenographers, bookkeepers,and investigators  are assistants
    In a limlt~d sense 0,"the word In that they assist in the conduct
    of the duties of ihe office,we are of the opinionthat the Leg-
    islaturedid not intendto includesuch employees$n the terms of
    Section13 (b), supra. It is the opinionafthe writer that the
    Legislatureinteridea to includeonly assistant+listrict  or county
    attorneysas that word is commonlyaccepted,that is, practicing
    attorneyswho in some way assist in the prosecutionof cases~in
    tte respectivecol;z%ies.*

        "We quote IL part, from your opinlda@-essed to the Camp-
    trollerucaer date cf V&r& 9, 1936:

        "'Whenwill the Comptrollerbe requiredto pay into the
    CountyOfficers'SalaryFunathe moneys providedfor under Sub-
    sectionB of Section131

         "'We are of the opinionthat the Comp%zoll.er's
                                                     Department         .
    shouldpay into the Officers'SalaryFu& of the respective
    countiesthe amount providedfor in Section13 (b) at the first
    .ofeach year, that is, on JanuaryFirst.' ~

         "we quote, in part, from your opinionNO. o-6226, addressed
    to the Comptroller:

         "'You statethat the maximumamountthat could be paid the
    CriminalDistrictAttorneyand his aasietantsby statuteis
    $'j2,150.00per annum,but the actualexpenditures
                                                  by Bexar County
    to the CriminalDistrictAttorneyana his assistantsis $45,500.00
    forthisyear...........................
         11
          I. . . . . . it is our opinionthat in making your allnca-
    tion of the appropriationas providedby said,~statute, you should
    make your calculationsof the distribut$ons on ~theamount actually
    paid by the countyto the,CriminalDistrict. Attorneyana his~ae-
    sistantsand not on the maximumamount!&at the,law~  au$horizes.'
.   .




        Hon. C. H. Cavness,page 3 (o-6676)



                 "In auditingthe recordsof the Comptroller'sDepartment
            pertainingto this salaryapportionmentfor the three-yearperl-
            od ended August jlet, 1944, we find the followingaltuation:

                 "1. At the beginningof each calendaryear the Comptroller
            preparesa scheduleof ealaryapportionmentfor each and all par-
            ticipatingcounties. The lralariesused by the Comptrollerin
            this scheduleare those furnishedby each countyby letter from
            such countypurportingto be the salarieswhich will be paid for
            the ensuingcalendaryear to CriminalDistrictAttorneysand
            their assistants.

                 "Thie, of course,means that the Comptrolleris using what
            might be consideredestimatedsalariesand which in most cases
            representmaximum salariesratherthan the actual salariespaid
            as outlinedin AttorneyGeneral'sOpinionNo. o-6226. Obviously,
            the Comptrollercould not know what salarieshad been paid until
            the end of the calendaryear based upon each county'spayroll.

                 “2.  During this three-yearperiod some countiesreported
            in their lettersto the Comptrollerfor inclusionof salaryap-
            portionmentcalculations,salariesfor abetractors,investigators,
            clerks and stenographers, all of which salarieswere used by the
            Comptrollerin computingsalaryapportionment   to the respective
            counties.

                 "3. Some countiesincludedthe names of 'Assistants'  who
            were not shown in the Texas Legal Directoryand/orthe records
            of the SupremeCourt of Texas as being licensedand practicing
            attorneys,which fact was discoveredby us in checkingthe names
            submittedto the Comptrollerback to the Legal Directories,etc.
            In one instancewe found that a county includedthe name of an
            attorneywho had not paid his Bar Associationdues since 1939.

                 "4. In checkingthe names and salariesshown each year as
            reportedby the respectivecountiesto the Comptrollerfor in-
            clusionin salariesapportionment  to the State Auditor'sForms
            NO. 383 and 383a, which forms report the fees receivedand the
            annual salarypaid the County Officersand employees,we found
            that in many instancesthe salarylisted in such lettersto the
            Comptrollerby the respectivecountiesexceededthe actual sala-
            ries paid such County'sofficersand employeesas reflectedin
            ~0rm.sNO. 383 ana 383a,

                 "We also found that numerouscountieshad not furnished
            Forms No. 383 and 383a to the State Auditor each year as re-
            quiredby Statute,so in order to obtainthe necessarydata
            for audit purposes,we wrote each countywhich has partici-
            pated in State SalaryApportionmentrequestingthat they fur-
            nish us with a list of all salariespaid attorneyeeligible
Hon. C. H. Cavneae,page 4 (O-6676)



    for participati.on
                     in th4.6apportl.onmentfor the calendaryears
    ended Decemberlat, 194.1,1942, 1943 and l&4.

         “In checkingthe repliesto these confirmationletternto
    thoae aubmitted.
                   by the countiesto the Comptroller,we found
    the 6am.esituation,
                      to e:xi.st
                              - t.helettersured by the Comptrol-
    ler reflectedealerfeawhi.c’h
                               were In,excess of the amountaac-
    tually paid.

         "5. In checkingthe salariessubmitted. by the respective
    countiesto the governingStatutes, it appeareto UB that aome
    countfeehave includedealarieafor poal,ttona which are not eli-
    gible for participatl,on.
                          in.the apporti,onmentand in some inetancea
    the salariessubmf.tted
                         were in excess of the amountafretforth in
    the Statutee.

         “In order to arrive at a definiteprocedureto be followed
    by the Comptrollerin compu.ting State SalaryApporti,onmentin
    the future and aleo to enableus to completeour audit for the
    three-yearperiod ended August jlet;,I$&, we are attaching
    herewitha echedulepreparedby ue frox ,thelettersreceived
    from the respectivecountieewhhl.ch wan the basis for salary
    apportionment a8 used by the Comptrollerfor the three-year
    period under audit. This scheduleshcws the names, positions
    and aalariee,by countfes,by years for t,hethree years ended
    August 31at, 1942, 1943 and 194,&.

         “It will be eeen that,J.nthl,ssched~.:.e
                                               we have footnoted
    (by letter referencee)cowerin.@;certal,n
                                           ‘LcllLq~ties
                                                    whf,cb.
                                                          haave
    includedsalariesw:hichwe do not believeare el!.gi.ble under
    the existingStatutese

         “T:hisscheduleprovtdesadd!.tl,oeal.
                                         columns‘Cobe filled
    in by you a8 fol.lows:

         “1. On t.hismdm3ul.eplease insertthe Law references
    for each poaitio:nin each cou&y and advi,se
                                              whether'aqyof
    such laws are unconstitut1,onal
                                  as tc partZ.c%.pation
                                                    in State
    SalaryApportionment D

        "2. We ‘alsoask th& you pl.ea~efi1.J:fnthe remai;nio.g
    three columnsin this schedu.ieto chow the maxi.mum
                                                     salary
    allowedby law for each of the positionsfor each courty
    eligiblefor parti.cipati.on
                              in t,h,Li
                                      eslaryapportLonmect.

         "3s The salaryapportionment   appropriati,ons
                                                     for t,he
                                                  (33) coun-
    three years under review refer to t’hirhy-three
    tiea, whereasthe attachedschedulecoveraonly thirty-one
    (31) countiesreceivingsuch apportbonment  as computedby
    the Comptroller. Shou.ld two more counti.ea
                                              partl,cipatein
.   .




        Hon. C. H. Cavness,page 5 (o-6676)



            this apportionment? If so, please furnishthe names of the coun-
            ties, the applicablelaws and the respectivesalariesto be in-
            cluded for such countlee.

                 "4. What ie the effect of the SpecialFederalCensus in
            JeffersonCounty on that county'8apportionment- that Special
            Census increasedthe populationfrom 145,329in 1940 to 191,942
            as of June 15th, 1943, the date of said SpecialFederalCensue.

                 “5. Based upon your OpinionNo. o-6226 which is to the
            effectthat calculationsof the distributionsshouldbe computed
            on the amount actuallypaid by the countyto the CriminalDis-
            trict Attorneyand his Assistantsratherthan on the maximum
            amountthe law authorizes,it appearsto us that the Comptroller
            would have to wait until the end of each calendaryear before he
            could calculatesalaryapportionmentdue the respectivecounties.
            Are we correctin assumingthat this is the method which should
            be used, the salarydata perhapsfurnishedthe Comptrollerat the
            end of each year through certifiedreportsfurnishedby the County
            Auditorsof the respectivecounties?

                 “6. Since we found that some countieshave been over-paid
            salaryapportionment(which of coursemeans that other counties
            have been under-paid)over the period of the three years under
            audit, can such errorsbe adjustedfrom any salaryapportionment
            appropriationbalanceand/or from future salaryapportionment
            appropriations, and for what period of time? Would such adjust-
            ments be retroactiveto Januarylst, 1936, the effectivedate of
            the State SalaryApportionmentlaws?"

                  We will considerthe apportionmentsto the named officialsof the
        variouscountiesin the order submittedby you and cite the statutesthat au-
        thorizedsame, a8 well as to call attentionto any errorsthat may have been
        made in making said apportionments.If desired,you can then place such mat-
        ters into the schedulesubmittedwith your request,which is returnedherewith.

                  It will be necessaryfor us to refer to the various subdivisions
        of the statutesgoverningthese mattersbut, insteadof referringto each of
        the subdivisions, we will give the articleand number thereoffollowedby a
        period and the number of the subdivision.All salarieswill be considered
        on an annualbasis withoutbeing so specified.

                  It may also be necessaryfor us to refer to and attach copies of
        other opinionsof this department,and when that is done said opinions,and
        each of them, will be adoptedas a part of this opinioninsofaras they pass
        upon questionshere discussed.

                  Bexar County. The Bexar County CriminalDistrictCourt was created
        and establishedby Articie 52-161 of the Code of CriminalProcedureof the
        State of Texas, and Section12 of said articleprovidesfor the electionof
                                                                           .      .




 Hon. C. H. Cavness,page.6 (o-6676)



 a criminaldistrictattorneyof said county. Article3912e-1of Vernon'eAn-
 notatedCivil Statutesfixes the salaryof said criminaldietrict.attorney
 at the sum of $7,400.00.

           We are unable to state just what positloneln,theoffice of Criminal
 DistrictAttorneyof Bexar Countywere filledby any particularpersons,as
 set forth on the schedulesubmitted,as home of the ealariespaid euch person6
 are lese than those authorizedby law. In our opinion,Article3912e.,  Section
 lg(f-l),fully authorlzedall of the salariesshown in the echedule,  eince
 Bexar County had a populationof 338,776 under tha Federal Censurof 1940 and
 such statuteapplied  to the districtattorneyor the criminaldistrictattor-
 ney, in any countyhaving a populationof not less than 325,000nor more than
 500,000accordingto the laet precedingFederalCensus.

            Your scheduleshows twelve assistantcriminaldistrictattorneys
 for each of the three years. In 1942 the followingsalarieswere paid: one
 assistantat $4,500.00,three at $4,200.00,two at $3,600.00,two's& $3,000.00,
 and four at $2,700.00. In 1943 the followingsalarieswere paid eaid assistants:
 two at $4,500.00,one at $4,200.00,three at $3,600.00, three at $3,000.00,
 and three at $2,700.00, And, in 1944 the followingsalarieswere paid said
 assistants: two at $4,500.00,    one at $4,200.00,three at $3~,600.00,three at
 $3,000.00,   and three at $2,7OO,OO. The statuteabove referredto authorizes
 the criminaldistrictattorneyto appointnine assistantsand to fix their
 salariesat a rate not to exceedthe followingamounts: two at $4,500.00per
 .annumeach, two at $4;200.00per annum each, one at $3,600.00per annum, one
 at $3,OOO.Q0per annum, and three &$2,7OO.O0 per annum ea.ch. In addition.
 to those, the criminaldistrictattorneywas author.ized.to    appoint,with the
 advice and consentof the'Commissioners'    Court, the followingadditionalas-
 sistantsand pay them the.salariesstated,to-wit,one at * salarynot to ex-
 ceed $4,250.00   per annum; one not to exceed$3,600.00 per annum; one not to
 exceed $3,000.00per annum; and two not to exceed $2,7OO.OOper annum;and
 one not to exceed$2,,400.00   per annum.

            House Bill No. 849, Ch. 271, pb 428, Vernon% Texas SessionLaw Serv-
  ice, passed by the last Legislatureand which became effectiveninety (90) days
  after June 5, 1945, date of adjournment,applies,tocountieshavinga popula-
  tion of 225,000or more*andless than 500,OOO~according  to the last preceding
  Federal Census,and fixes the Galariesof criminaldistrictattorneysin md.~
  countiesat $6,500.00up to January1, 1946, and at $7,400.00after that date.
  Our OpinionNo. o-6728, a copy of which we hand you herewith,holds House BFll
. Noa 849 to be'in irreconci+able conflictwith SenateBill No. 246 insofaras
  said bills apply to Bexar County. Therefore,SenateBilI,No.246 will control
  the salaryof the criminaldistrictattorneyin Bexar County.

           SenateBill No. 246, Ch. 312, p. 510, of said Law Service,applies
 to countiesin this State having a populationof not less than 300,000nor
 more than 500,000accordingto the last precedingFederalCenBus. This law
 became ef?ectiveon June 2, 1945, and governsthe salaryof the criminaldis-
 trict attorneyfn Bexsr County after that date. This law authorizeshis salary
 to be $7,700.00per annum, and it also authorizesan increaseof 15% on the
.   .




        Hoq. C. H. Cavnem, page 7 (O-6676)



        salariesof the assistants,such increaseto be based on the salariesof March
        15, 1945. Said law also repeal6Article3912e-1,Vernon'eAnnotatedCivil
        Statutea,which in the law hereinbeforeaet out a8 fixingthe salary of the
        criminaldistrictattorneyfor the years referredto by you.

                  As to those two referredto on your schedulefor 1944, one at a salary
        of $3,000.00,the other at $2,700.00,whether or not the apportionment made
        on their salarieswa8 legal,would dependentirelyupon whetheror not they
        actuallyservedas such assistants.~If they did not eerve,then they should
        not have been includedin the apportionment,a8 the holdingmade In our Opinion
        No. 0-6226 that the calculationshouldbe based on the amount actuallypaid
        is evidentlycorrect.

                  Article 3912e, Section13, of said statutesprovidesthat in counties
        having a populationof 20,000 or more and lees than 190,000,the Commissioners'
        Court is authorizedto fix the salariesof the county officialsthereinnamed,
        includingthe countyattorney,criminaldistrictattorneyand countyattorney
        who performsdutiesa8 districtattorney,which ehouldbe not less than the
        total sum earneda8 compensation  by them in their officialcapacityfor the
        year 1935 and not more than the maximumamountallowedto such officialsunder
        laws existingon August 24, 1935. It wa8 providedfurtherthat in counties
        fallingwithin a certainlimit as to populationaccordingto the last preceding
        FederalCensus such countiescould have such amountsIncreasedin the event
        the assessedvaluationswere in excess of the amountsthereinset forth accord-
        ing to the la& approvedprecedingtax roll. Article3912e, Section15, of
        said statutes,containsprovieionsrelativeto the salariesthat such officials
        in countieshaving a populationof less than 20,000 accordingto the last pre-
        cedingFederalCensus could be paid, but none of the countiesherein referred
        to come within aaid articleand section. Therefore,it will not be further
        referredto, Our Opinion6Iios,O-2748 and 0-2546-Acontaina full discussion
        of the rules and methods governingthe-fixingof such salariesunder the above
        referredto provisions,and copiesof same are enclosedherewithfor your in-
        formatfon.

                  An exceptionto the rule set out in Article 3912e, Section13, that
        salariesshall not be less than the total sum earnedfor the year 1935 and not
        more than the maximumallowedunder laws existingon August 24, 1935, is con-
        tained In Article 3912e-7,which became effectiveJuly 5, 1941. This law ap-
        plibd, however,only to Hldalgoand McLennanCountiesduringall of 1942, 1943
        and 1944 and to JeffersonCountyup to June 15, 1943, and 6ame will be further
        consideredIn connectionwith each of said counties.

                 These rules do not apply, however,to countieswhoee populationis
        in exce68 of 190,000a8 such countiescome within the provisionsof Article
        3912e, Section19.

                  Brazes County. This countyhad a populationof 21,835 in 1930=
        Under Arficles3883.1 and 3891, the countyattorneyof this county could have
        been paid a salary of $3,000.00. Under Article 3902.1,the first assistant
        countyattorneycould have been paid not to exceed$+,~oo.ooand other asaiat-
        ants nqt to exceed$1,500.0?.
                                                                                .       .




         Hon. C. H. Cavness,page 8 (o-6676)



                  Collln Coupty. Thie countyhad a populationof 46,180 in 1930.
        Under Article83883.3 and 3891, the countyattorneycould have been paid a
        salaryof $4,250.00.,The populationof this county for 1940 waB 47,190 and
        the assessedvaluationefor 1941, 1942, and 1943 were $21;730,930.00,
        $22,350,260.00,and $Z!2,352,325.00,respectively,therefore,under Articles
        3912e, Section13, the countyattorneycould have been paid an additional2$
        for 1942,,m additions13% for 1943 and m additional3$'for 1944, such per- ,
        centageabaaed upon the salaryof $4,250.00. Under Article 3902.3,the first
        asaietantcounty&torney could have been paid a ralaryof $2,100.00,and other
        assistantsnot to exceed$1,800.00.

                   Cooke County. The populationof this countywas 24,136 in 1936.
        Under Articles3883.1 and 3891, the countyattorneycould have been paid a
        salary of $3,000.00. The populationl+ 1940 ME 24,909...Theaeeeeaed valua-
        tione for 1941, 1942, and 1943 were $18,896,250,00~ $i0,089,410.00, and
        $ly,487,,8oo.o0. Therefore,under Article 3912e, Section13, the couqty,at-
        torney could have been paid an additional4$, 6$ and 5% of said salaryfor
        the years 1942, 1943,'and1944, reepectively.                   .:

-                  Dallae County. !?he,Dallas,CountyCriminalDietrictCourt was created
         and establishedby Article 52-l -- 52-24 of the Code of CriminalProcedure
         of the State of Texas, and Section52-24 thereofprovldeefor a criminaldis-
         trict attorney; The 1940 populationof Dallas CountywaB 398,564, therefore,
         the salaryof the criminaldistrict.attorney  of Dallas County is governedby
         Article 3912e-2(b),which authoriZee.the fun qf $7,400.00in all countiesin
        <the State havinga populationin excess of 355,000accordingto the laaetpre-
         cedingFederal Ceneus.

                  'The salarieepaid to the variousassistant  criminaldistrictattor-
        neys for the years named varyin amount,and.we?  are unable to chargeany of
         said salariesagainstany particularperson,but Article'   3912e,Section19(f-l),
        which appliesto cou$ies having a populationof noflees than..325,000     and
        not more than 500,000,authorizesall of the salariesset forth in the sched-
        ule submitted.
                                                 .
                   Yotishow in your schedulefifteenassistantc&ni&      districtattor-
    * . neys in 1942 who were paid the followingsalaried: one at $4,5OO.Od;one at
        $4,200.00;two at $3,600.00;two at $3,39y000each; one at $39708.00;two at
        $2,7OO.OOeach; thrae at $2,472.00each; one at $2,008,50;one at $2,162.50;
        and orieat $1,854.00. You ahow thirteenfor 1943 who were paid the following
         salaries: two at $4,500.00each; three at $3,600.00each; one at $3,9OO=OOj
        doneat $3,000.00;one at.$2,700.00;and three at $2,400.00. You show twelve
        for 1944 who were paid the followingsqlaries,:two'for&4,500'000   eachj  one :
        for $3,9OO.Oojthfreefor $3,600.00ea?h; one for $3,000.00;three for $2,700.00
         each; and two for $2,400,00each. TM above articleauthorizesthe criminal
         districtattorneyto appointnine aeaigtanteand pay them the followingsala-
        rieaj two at $4,500.00perannum each;.twoat $4,20OaOOper,annuneach; one
        at $3,600.00per annum; one at $3,000;00per amm;, and,threeat $2,7OO.OO
        per ennum each. *Withthe advice end consentof the Commissioners'    Court,the
         same article'authorized.him to appointaa many a8 six more aaai+anta,and
                                                                       .           pay
Hon. C. H. Cavueas,page 9 (O-6676)



them the following,ealarlez:one at $4,250.00per annuzq one at $3,600.00per
nnnum; one at $3,000.00per annum; two at $2,7OO.OOper ahuum;and one at
$2,400.00per annum. In our opinion,the aalnrierpnid said amirtantz during
the years mentionedwere authorizedunder the law, even though the amount8
paid were in zone caee6 lezz than the amount authorized.

          We note you refer to awze abatractereand clerks havingbeen paid
salarleewhen they were not licenseda8 practicingattorneys. Unlees said
abstractem and clerkaware practicinglaw, they would not be requiredto be
practicingattorneys. .Siucethere is nothingto show that they were practicing
law, that is, trying cases, or doing other things requiringa lax license,we
presumethey were just what their positionsimply,namely:abatractereand
clerks. Under the opinionof this departmentreferredto by you, dated September
15, 1936, and in which it x88 held that only assistantcriminaldistrictattor-
neys shouldbe includedin making up the apportionment,  abetractersand clerks
shouldnot have been includedtherein.

          What has been hereinaboveeaid as to House Bill Bo. 849 and Senate
Bill Bo. 246, passedby the last Legislature,is also applicableto Dallas
County,and the salaryof the criminaldistrictattorneyof Dallas County should
be consideredon the basis of $7,700.00per annum from and after June 2, 1945,
and the assistantson an increaseof 15% on the salsrieeauthorizedto be paid
on March 15, 1945, which would be those hereinaboveset out.

          Denton County. The populationof thik countyx88 32,322 in 1930.
Under Articles3883.2 and 3891, the countyattorneycould have been paid a
salary of $3,500.00per anuum. The 1940 populationwas 33,658,and he could
have been paid a compeneationof 5$, 6% and 6$ of said amount for each of the
years 1942, 1943, and 1944, respectively,under Article 3912e, Section13, since
the assessedvaluationsfor the precedingyeare of 1941, 1942, and 1943 were
$19,240,755.00, $20,041,05O.OG, and $20,170,6~5.00,respectively.Under Arti-
cle 3902.2 the first aesiritantcountyattorneycould have been paid not to
exceed $2,000.00,and other aseistantsnot to exceed $1,700.00each.

          EaatlandCounty. You refer to thie countyas having had a criminal
districtattorneyfor the years in question,but‘saidcountyat no t,imewas
authorizedto have other than a countyattorney. Our OpinionNo. Oi6374,a
copy of which is enclosedherewith,holds that a countyattorneywan authorized
for EastlandCounty,and our OpinionAo. O-5024,a copy of which is aleo enclosed,
and which is referredto in OpinionBo. o-6374,holds that Article326k-7,
V. A. C. S., the only statutethat uould have authorizeda criminaldistrict
attorneyfor EastlandCounty,was invalid. However;the person servingas
countyattorneyor criminaldistrictattorneyof EastlandCounty,even if under
the impressionthat he was legallycriminaldistrictattorneyof such county
was entitledto compensation,a8 held in our OpinionNo. 0-3158,which deals
with a similarsituationin GraysonCounty,and a copy of which is herewith
enclosed. Therefore,we will considerthis county a8 having had at leaat a
de facto county attorneyand entitledto the regularlyauthorizedapportioa-
ment.
Hon. C. B. Cavneas,page 10 (o-6676)



          The populationof thin coun$ywal 34,156 in 1930. Under ArtlcJee
3883.2 and 3891, the countyattorneytir entitledto a 8alaryof $3,500.00,
The 1940 populationwan 30,345,therefore,under Article39l2e, Section13,
he could have been paid an additionalmuu of 6% of 1942, 6$ of 1943, and 5%
in 1944, eince the anlreraedvaluatibnrfor the years precedingeach of those
yeare were $20,360,000.60, $20,372,340.00,and $19,575,780.00, rerpectively,

          El116 County. Ellir County ir alro referred to 81 having had a
criminaldistrictattorney. The only rtatuteauthorizinga criminaldlatrict
attorney for such county 10 Article 3264-11,which, ar held by our Opinion
No. O-5024,hereinabovereferredto, in UnconrtitutiOnal,   or Article326q, which
is alno unconstitutional, 86 held by our Opinionno. O-5001,a copy of which
is herewithenclozed. Your attentionSe alao directedto the cane of Hill
County v. Sheppard,178 S. W. (2d) 261, whereinthe BupremeCourt held Arti-
cle 326s invalid. Therefore,we will only coneideraaid countyas havingbeen
authorizedto have a countyattorneyduringthe time involved.

          The populationof thin county in 1930 was 53,936. Under Articles
3883.3 and 3891, the county attorneycould have been paid $4,250.00per annwz.
The I,940populationwae 47,733,therefore,under Article.j912e, Section 13,
he could have been paid an additionalSum of 8$ for e&h of aaid.years,since
the assessed.valuations for the precedingyears xere #27,709,750.00,$27,969,257.00,
and $27,918,705.00, rezpectively.Under Article3902.3, the first aasletant
countyattorneycould have been paid not to exceed $2,100.00. We are unable,
however,to find any authorityfor a tax deputy in e.county bf this eize.
Said Article 3902.3 authorizesthe appointmentof other azzistants,deputies
or clerks,who can be paid not to exceed$l,800.00each. One of these could
be calleda tax deputy and he would not need to be a licensedattorney,unless
he shouldbe practicinglaw. ,

          Falls County. We know of no-statuteauthorizinga criminaldistrict
attorneyin this county other than those hereinabovereferredto which have
been held invalid. Therefore,this countywill be consideredaa having had a
countyattorneyonly. The populationof this county in ~1930was 38,771. Under
Articles3883*3 and~3891,the countyattorney.could  have been paic $4,250.00
per annum. The 1940 populationwae 35,984 and under Article3912e, Section
13, he could have been paid an additions115 of said amount.for the year 1944,
since the asseesedvaluation'forthe ye&l943 wae $15;150,666.00.Under Arti-
cle 3902.3,the first assistantcountyattorneycould have been paid not to
.exceed$2,100.00.

          Fannin County. The populationof this co&y in 1930 ~6 41,163.
Under Articles388303and 3891, the countyattorneycould have been paid $4,250.00   .
per annum. Under Article 3902.3,the first aseistantcounty attorneycould
.&ve been paid not to exceed $2,100.00.

          FreestoneCounty. The populationof this county for 1930 was 22,589,
and the same statementabove mad@ aa to there being no authorityfor a criminal
diatltictattorneyin this countyapplieshere. Under Articles3883’.1   and 3891,
the countyattorneycould have been paid a salaryof $3,000,00per annum.
Hon. C. H. Cavnesa,Page 11 (O-6676)



          GalvestonCounty. The populationof this county In 1930me 64,401.
Under Articles3883.4and 3891,the county attorneycould have been paid
$4,750.00.The populationof the city of GalvestonIn 1940wna 60,862. Under
Article 3887,which applierto countierhaving a populationof lGO,OOGor leas,
and containinga city having a populatianin exceae of 50,000 in which county
there la no districtattorney,there could have been not to exceedthree a6-
sistantcounty attorneyain GalvestonCounty,two of whom could have been paid
not to exceed $2,7OO.OOper annum each and the other not to exceed$2,100.00
per annum.

          House Bill No. 798, Ch. 187, p. 253, Vernon'sTexaa SessionLaw Serv-
ice, passedby the last Leginlatureand which became effectiveMay 9, 1945,
providesthat in all countieshavinga populationof 60,001 and not more than
100,000accordingto the last precedingFederal Censusthe countyattorneys
in such countieswhich do not have a districtattorney,and where the county
attorneyperformsths duties of countyattorneyand districtattorney,the
countyattorneyshall apply to the Coxmisslonerr  I Court of his countyfor au-
thorityto appointsuch assistantcountyattorneysas he may requirein the
performanceof his duties,and the Coamiesioners'   Court is authorizedto de-
terminethe number to be appointedand fix the compensationto be paid within
the limitationsnamed therein,which shall be a reasonableone, not to exceed
$3,6OO.00per BI~I~UP~.This law appliesto GalvestonCounty from and after its
effectivedate.

          GraysonCounty. This countywas at no time entitledto have a crimi-
nal districtattorney,and we directyour attentionto what has hereinabove
been said as to the validityof the laws which undertookto create such an
office. In 1930 the populationof this countywas 65,843. Under Articles
3883.4and 3891,the countyattorneycould have been paid $4,750.00   per annun.
Under Article 3902.4,the first assistantcould bavebeen paid $2,400.00and
other assistants$2,100.00per annum each. What has been above said as to
House Bill No. 798 also applieato GraysonCounty.

          Gregg County. The crinlnaldistrictcourt of this countywas created
by Article 199, Subdivision124, V. A. C. S. Section21 thereofauthorised
the criminaldistrictattorneyof aaid criminaldistrictcourt to be paid a
salary of $4,250.00,and Section22(a) thereofauthorizeda first assistant
criminaldistrictattorneyat $3,600.00   per annun and a secondassistantcrimi-
nal districtattorneyat $3,000.00per Mrunk.

          Harris County. The criminaldistrictcourt of Harris Countywas
createdby Article 52-25 -- 52-88 of the Code of CriminalProcedureof Texas,
and Subdivision52-43 thereofprovidesfor the electionof a criminaldistrict
attorney. The 1940 populationof this countywas 528,961,therefore,the
salary of the criminaldistrictattorneyis governedby Article 3912e-2(b)
which authorizedsane to be $7s400.00in countieshaving a populationin ex-
cess of 355,000.

          The number and salariesof assistantcriminaldistrictattorneys
in this county are governedby Article3912e-2(f). Under this provisionnine
                                                                                 .




Hon. C, H. Cavness,page 12 (o-6676)



assistantscould be appointedand paid the followingcompensation:tuo at
$4,500.00 per annum eachj two at $4,200.00per annum each1 one at $3,600.00~
one at $3,000.00per snnumj and three at $2,7OO.OOper annum each. In addi-
tion, shouldthe districtattorneybe of the opinionthat ths number of such
assistant6is not adequate,hs could,with the advice and consentof the Commir-
aloners'Court, appointthe followingadditionalassistantsand pay them not
to exceedthe salariesmentioned: one at $4,250.00per annumj one at $3 600.00
per annumi one at $3,000.00per annumj and two additionalassistantsat 62,700.oo
per annum each.

          Under the schedulesubmittedby you, the followingarrirtantrwere
appointedand paid the stated salariesfor each of raid years: for 1942, two
assistantsat $4,500.00each3 three at $4,200.00each) two at $3,600.00 each)
two at $3,OOp.O0each) and five at $2,7OO.OOeach: In 1943 two at $4,500.00
each; two at $4,200.00each4 two at $3,600.00each; two at 43,OOO.OOeach;
and five at $2,700.00each: And in 1944, tuo at $4,500.00each; three at
$4,200.00each; two at $3,600.00each; two at $3,000.00each; and five at
$2,700.00 each. It ie our opinion,therefore,that all of said assistanta
and the salariespaid them were duly authorizedunder the law.

          SenateBill No. 279, Ch. 85, p* 122, Vernon'sTexas SessionLaw Serv-
ice, which became effectiveon April 19, $945,appliesto count,ieshaving a
populationof 500,000or more and includesHarris County. Section6 of said
Act sets out the number of assistantcriminaldistrictattorneysthat can be
appointedin said countyand the amountsof the salariesthat can be paid.

          HarrisonCounty. The 1930 populationof this countywas 48,937.
Under Articles3883.3 and 3891, the countyattorneycould have been @aid as
much as $4,250.00per annum. Under Article 3902.3,the first assistantcounty
attorneycould have been paid not to exceed$2,100.00,and other assistants
not to exceed$1,800.~~per annum each.

          Hidalgocounty. We find no authorityfor a criminaldistrictattor-
ney in this county,therefore,what has been heretoforesaid in connection
with Articles326k-p,326k-11 and 326s is also applicablehere, as there were
no other statutesauthorizinga criminaldistrictattorneyin this county.

         Article 3pl2e-7,which became effectiveJuly 5, 19&l, providesthat
the Commissioners'Courts in all countieshavinga populationof not less than
100,000and not more than lpO,OOO,accordingto the last precedingFederal
Census, in fixingthe salariesto be paid the officersnamed in Section13
of Chapter465 of the Acts of the Second Called Sessionof the Forty-fourth
Legislature,(Art. 3912e, Sec. 13), where such salariesare determinedin com-
pliancewith the laws which existedon August 24, 1935, and are based upon
population,shall,c&pute, and fix the salariesof such officersat the maxi-
mum amountwhich could have beenpaid under ,thelaws existingon August 24,
1935, accordingto the FederalCensus of 1940, and thereafteraccordingto
the lastprecedingFederalCensus.
Hon. C. A. Cavnees,page 13 (o-6676)



         The populationof this county in 1940 was 106,ogp. Under Articles
3883.5and 3891, the countyattorneycould have been paid $5,500.00per annum.
Under Article 3902.5,the first assistantcould have been paid $2,600.00
                                                                     per
annum and other assietants$2,3OO.OOper annum each.

         Hill county. No criminaldistrictattorneyhas been authorizedfor
this county,and we again refer to the opinionsand statementshereinbefore
referredto, and especiallyto the ca8e of Hill Countyvs. Sheppard,178 S. W.
(2d) 261,by the SupremeCourt,which holds that the statuteauthorizinga crimi-
nal districtattorneyfor this county is invalid.

         The populationof Hill County in 1930 was 43,036. Under Articles
3883.3and 3891, the countyattorneycould have been paid $4,250.00. The 1940
populationwas 38,355and under Article3p12e, Section13, he could have been
paid an additionall$ for each year, since the assessedvaluationsfor 1941,
1942 and 1943 were $20,430,520.00,
                                 $20,438,op8.o0  and $20,357,450.00,
                                                                   respec-
tively. Under Article 3902.3,the fir-etassistantcountyattorneycould have
been paid not to exceed$2,100.00.

          JeffersonCounty. The CriminalDistrictCourt of this countywaB
createdand establishedby Article 52-160of the Code of CriminalProcedure
of the State of Texas, and Section11 thereofprovidesthat the countyattor-
ney of JeffersonCounty shall be county attorneyof this CriminalDietrict
Court.

          The populationof this county in 1940 was 145,329,therefore,it
would be governedby Article 3p12e-7and what has been hereinabovesaid a8
to HidalgoCountywill also apply here as to the applicationof this Article.

          Under Articles3883.5and 3891, the countyattorneycould have been
paid $5,500.00per annum. Under Article 3902.5,the first assistantcould
have been paid $2,600.00per annum and other assistants$2,300.00per annum
each.

          A SpecialFederal Censuswa8 aounced for JeffersonCounty on June
15, 1943, showingthe populationof this county to be 191,942. Article 3pl2e,
Section19, providesthat "Provisionsof this Sectionshall apply to and con-
trol in each county In the State of Texas havinga populationin excess of
one hundredand ninety (1p0,000)thousandinhabitants,accordingto the last
precedingFederal Census." Therefore,the salariesof the countyattorney
of JeffersonCounty and his assistantsfrom and after June 15, 1943, are sub-
ject to the provisionsof said Section.

          Article 3p12e, Section19(d), providesthat the officerstherein
named, includingthe "districtattorneyor criminaldistrictattorney,"as
the case may be, shall receivea salaryof $6,500.00per annum,but no salary
is providedtherein for a countyattorneyin a county having a populationIn
excess of lpO,OOO. Since the countyattorneyof JeffersonCounty is the county
attorneyfor the CriminalDistrictCourt of said countyand performsthe duties
of districtattorney,or criminaldistrictattorney,it is our opinionthat he
                                                                                      .




Hon. C. H. Cavness,page 14      (O-6676)




is entitledto the compensationprescribedfor the dl#trictattorneyor crlmi-
nal ditirictattorney,under the rule8 of law laid down in our OpinionNo.
O-3158 hereinabovereferredto. It is our opieionthat he was and is entitled
to a salaryof $6,500.00from and after June 15, 1943. This holdingalso has
eupportin the former law, in that it is providedin Articles3883.6and 3891
that, in countiescontainingas many as 150,001or more inhabitants, the dls-
trict or criminaldistrictattorneyor ,countyattorneycan be paid as much
aa $6,500.00per annum.

          Under Article 3902.5,the first arrirtant could hrve been paid not
to exceed 2,600.ooper annum and other ar~irtantrcould have been paid not
to exceedt2,3OO.OOper annum each to June 15, 1943. After June 15, 1943,
the appointmentof amrietantsto CriminalDirtrictAttorneyrIQ Jefferson
County, or to the County Attorney, and the amountsof their salaries,in gov-
erned by Article3912e, Section19(f),which provideafor nine assistantsto
be paid the followingsalaries: two at $4,500.00each5 two at $4,200.00each;
one at $3,600.,00~one at $3,000.00;and three at $2,700.00each.

                It    Is
                  furtherprovidedIn said Section 19(f) that shoulda district
or   criminal        district
                       attorney be of the opinionthat the number of assistants,
etc., is inadequatefor the efficientperformanceof the duties of his office,
with the advice and consentof the Commissioners'   Court, he may appointaddi-
tional assistants   and fix their salariesas follows: one not to exceed$4,250.00;
one not to exceed$3,600.00;one not to exceed$~,OOO.OO;and two not to exceed
$2,700.00each.

             Your attention    is also directedto House Bill No. 855, Ch. 307, p0
505, Vernon'sTexas SessionsLaw Service,which became effectiveJune 4, 1945,
and which providesthat the countyattorneyin countieshavinga populationof
more than 190,000inhabitantsaccordingto the last precedingFederalCensus,
where there is no residentdistrictattorneyor criminaldistrictattorney,
shall   receive   the mm@ salaT     a8 providedfor district attorneys or criminal
district    attorneys  in Sectionl-a, SenateBill No. 374, Ch. 26, Acts of the
Forty-fifthLegislature,RegularSession,1937; and said countyattorneysare
authorizedto appointassistantsand employeesin the se@e manner as is pro-
vided   for district   attorneys   or criminaldistrictattorneysunder the provisions
of Section1, House Bill No. 148, Ch. 68, Acts of the Forty-fifthLegislature,
Second Called Session,and that such assistantsshallbe compensatedas pro-
vided in said Section1 of House Bill No. 148.

          The first Act referredto is Article 3912e, Section19(d),which
has applied since June 15, 1943, and the salaryof the countyattorneySo pro-
vided for, IS $6,500.00per annum. The other Act referredto is Article3912e,
Section19(f), and authorizesthe same number of assistantsas has been author-
ized in this county since June 15, 1943, and said assistantscan be paid the
same salariesas have been authorizedto be paid since said date.

          You refer to~the fact that the chief clerk employedby the criminal
districtattorneyof this county In 1942 and 1943 was not an attorney. There
is no law requiringa chief clerk to be an attorney,but under the opinion
    Hon. C. H. Cavness,page 15 (o-6676)
.

    of this departmentreferredto by you, dated September15, 1936, the salary
    of such chief clerk shouldnot have been used as a basis for the apportionment
    by the State here under consideration.

             We encloseherewitha copy of our OpinionNo. O-6499 holdingthat
    the SpecialFederal Census of June 15, 1943, governsin fixingthe amounts
    of salariesafter that date in JeffersonCounty.

              Kaufmancounty. The populationof this county in 1930 was 40,905.
    Under Articles3883.3and 3891, the countyattorneycould have been paid
    $4,250.00per annum. Under Article3902.3,the first assistantcountyattor-
    ney could have been paid not to exceed$2,100.00.

             'Lamarcounty. The populationof this countyin 1930 was 48,529.
    Under Articles3883.3 and 3891, the countyattorneycould have been paid
    $4,250.00. The 1940 populationwas 50,425,and the assessedvaluationsfor
    1941, 1942 and 1943 were $21,278,295.00,$21,653,595.00and $21,81.7,1.10.00,
    respectively.Therefore,under Article3912e, Section13, the county attor-
    ney could have been paid an additional2s of $4,250.00far each of the years
    1942, 1943, and.1944. Under Article3902.3,the first assistantcould have
    been paid not to exceed$2,100.00and.otherassistantsnot to exceed$l,800.00
    per annum each.

              LimestoneCounty. The 1930 populationwas 39,497. Under Articles
    3883.3 and 3891, the county attorneycould have been paid $4,250.00per annum.
    The 1940 populationwas 33,781 and the assessedvaluationsfor 1941, 1942, and
    1943 were $16,529,6lO.O0, $15,607,655.00,and $16,176,100.00, respectively,
    which, under Article 3912e, Section13, would have authorizedthe salaryof
    the countyattorneyto have been increased2$, l$, and 2$, respectively,for
    the years 1942, 1943, and 1944. Under Article 3902.3,the first assistant
    countyattorneycould have been paid not to exceed$2,100.00. We enclosehere-
    with copy of our OpinionNo. 0-2560which deals with the proper method of com-
    puting salariesof countyand districtofficialsin this county.

             McLennanCounty. This countywas at no time authorizedto have a
    criminaldistrictattorney,and what has hereinbeforebeen said as to the in-
    validityof the statutesauthorizingcriminaldistrictattorneysis also ap-
    plicablehere.

              The populationof this county in 1940 was 101,898,therefore,it
    would be governedby Article 3912e-7and what has been hereinbeforesaid as
    to Hidalgoand JeffersonCountiesas to the applicationof said Article also
    applieshere.

              Under Articles3883.5and 3891, the countyattorneycould have been
    paid $5,500.00per annum. Under Article 3902.5,the first assistantcould
    have been paid not to exceed $2,600.00per annum and other assistantsnot to
    exceed$2,3OO,OOper annum each.
Hon. C. H. Cavnese,page 16 (o-6676)



          Milan County, There raa no statuteauthorizinga criminaldistrict
attorneyfor this county,and what has heretoforebeen said relativeto such
officialsnot being authorizedalso applieshere. The 1930 populationof this
countywas 37,915. Under Articles3883.3and 3891,the countyattorneycould
have been paid an much a8 $4,250.00per annum. The 1940 populationwan 33,120
and under,Article3912e,Section13, he could have been paid an additional
sum of l$ of said salaryfor each of raid yearo, mince the araeaaedvaluations
for 1941, 1942 and 1943 were $15~76~735.00,,$15,423,512.00, end $15,581,045,
respectively.

          Navarro County. This countywan not authorizedto have a district
attorneyand what has been heretoforesaid ar to criminaldistrictattorneys
also applieshere, if eald countywae consideredaa havingbeen subjectto
the statuteareferredto. The populationof this county for 1930 waa 60,507.
Under Articlee3883.4 and 3891, the countyattorneycould have been paid a8
much a8 $4,750.00. The 1940 populationwas 51,308and under Article3912e,'
Section13, he could have been paid an additionalmun of 1% of said amount
for each of the years inquiredabout, since the &seeqed valuationsfor the
years 1941, 1942 and 1943 were $20,083,293.00,$20,090,547.00,and $20,608,666.00,
respectively.Under Article 3902.3,the fir& aesistantcould have been paid
as much as $2,100.00per annum and other assistantsas much a8 $I.,~OO.OO
                                                                      per
BMUIil.We alao hand you herewitha copy of our OpinionNo. 0-6484,which deals
with the salariesof the countyattorneyof this county. Ae to whetherall
those referredto as assistantswere actuallyentitledto be carriedas such
would dependupon the servicesperformedand, if they were not actuallyassiet-
ant,countyattorneys,they shouldnot have been used as a basis for this ap-
portionmentfrom the State.

          Red River County. The 1930 populationof this countywas 30,923.
Under Articles3883.3 and 3891, the countyattorneycould have been paid as
much a8 $3,500.00.

          RobertsonCounty. The 1930 populationof this countywan 27,240.
Under Articles3883.2 and 3891,the countyattorneycould have been paid a8
much as $39500.00per annum.

          Rusk County. The 1930 populationof this countywas 32,484. Under
Articles3883.2 and 3891, the countyattorneycould have been paid a8 much ae
$3,500000per annum. The 1940 populationwas 51,023and under Article 3912e,
Section13, he could have been paid an additional72$, 70% and 66$, respectively,
for the years 1942, 1943 and 1944, since the asseesedvaluationsfor 1941, 1942
and 1943 were $g1,210,805.00, $89,342,105.00 and $85,367,894.00,
                                                               respectively.
Under Article 3902.2the first assietantcounty attorneycould have been paid
aa much as $2,000.00per annum and other assietanteas much as $1,700.00per
annUrn.

          Tarrant County. The CrimiqalDistrictCourt for TarrantCountywan
createdand establishedby Article 52-63-- 52-87of the Code of CriminalPro-
cedure of the State of Texas, and Subdivision52-81 providesfor a criminal
dietrictattorney. The 1940 populationof TarrentCountywas 225,521,therefore
.




    Hon. C. H. Cavness,page 17 (O-6676)



    the salary of the criminaldistrictattorneyof said county is governedby
    Article 3912e, Section19(d),which authorizesthe sum of $6,500.00for each
    of the years inquiredabout in countieshaving a populationin excess of
    190,000.

              The salariespaid to the variousaeaistautcriminaldistrictattor-
    neye for the years named vary in amount,and we are unable to chargeany of
    said ealariesagainstany particularperson,but Article   3912e, Section19(f),
    which appliesto countieshaving a populationin excess of 190,000authorices
    all of the salariesin the schedulessubmitted,except as hereinaftereet forth.

              You show in your schedulefifteenassistantcriminaldietrictattor-
    neys for 1942, who were paid the folloxi.ng
                                              salaries: two at $4,500.00each,
    one at $3,600.00,one at $3,300.00,two at $2,880.00,two at $2,520.00,one
    at $2,400.00,one at $2,34O.OO,three at $2,100.00,oue at $1,920.00,and one
    at $1,800.00. You show twelve for 1943 who were paid the followingsalaries:
    two at $4,500.00each, one at $3,600.00,one at $~,OOO.OO,one at $2,880.00,
    two at $2964~.~~,one at $2,520.00,two at $29400.00, one at $2,280.00, one
    at $2,100.00,and eleven for 1944 who were paid the followingsalaries: one
    at $4,500.00,two at $3,600.00,one at $~?OOO.OO,one at $3,180.00,two at
    $2,7OO.OO,and four at $2,880.00. Said Article 3912e, Section19(f),author-
    izes the criminaldistrictattorneyto appointnine assistantcriminaldistrict
    attorneysand pay them the followingsalaries: two at $4,500.00, two at
    $4,200.00, one at $3,600.00, one at $3,000.00,and three at $2,700.00. In
    addition,if he be of the opinionthat the number of assistantsis insufficient,
    he may, with the advice and consentof the Commissioners' Court,appointaddi-
    tional assistantsand pay then the followingsalaries: one not to exceed
    $4,250.00, one not to exceed$3,600.00,one noa+ to exceed$3,000.00,and two
    not to exceed $2,7OO.OO. It is our opinion,therefore,that salariespaid
    said assistantsduringthe years mentionedwere authorizedunder the law even
    though the amountspaid were in some cases less than the amount authorized,
    except that fifteenwere used and paid in 1942 when only fourteenwere au-
    thorized.

             House Bill No. 241, Ch. 74, p0 106, Vernon'sTexas SessionLaw Serv-
    ice, appliesto countieshaving a populationof 225,000or more and leas than
    500,000accordingto the last precedingFederalCensus and would includeTar-
    rant County. This law authorizesthe districtattorneyto be paid a salary
    of $7,400.00.

              House Bill No. 849, Ch. 271, p0 428, of said Law Serviceapplies
    to countieshavinga populationof 225,000or more and less than 500,000and
    also includesTarrantCounty. This law fixes the salaryof the criminaldis-
    trict attorneyat $6,500.00per annum up to January 1, 1946, and thereafter
    at $7,400.00per annum. Under the rules of law set out in our OpinionNo.
    o-6728 hereinabovePeferredto, House Bill No. 849 would governthe salary
    of the criminaldistrictattorneyin TarrantCounty, insteadof House Bill
    No. 241, sinceHouse Bill No. 241 was approvedand became effectiveon April
    10, 1945, and House Bill FTo.849 was filed by the Governoron May 30, 1945,
    and became effectiveninety days after June 5> 1945, or on September3, 1945.
Hon. c. H. Cavness,page 18 (o-6676)



Therefore,House Bill No. 849 repealsHouse Bill No. 241 Insofaras they are
in conflict,the conflictbeing that Houee Bill No. 241 provideafor a salary
of $7,400.00for the districtattorneywhile Houre Bill Ao. 849 provideBthat
said salary shall be only $6,500.00to January1, 1946, and $7,400.00there-
after. Therefore,in connectionwith the salaryof the criminaldintrlctat-
torney of TarrantCounty,it will be $6,500.00 per &MWE to April 10, 1945;
$7,400.00per mum from April 10, 1945 to September3, 1945j $6,500.00per
annum from September3, 1945, to Jaauary1, 19461 and thersaiter$7,400.00
per agum.

         While "DistrictAttorney"in named ln House Bill No. 241 and "Die-
trict Attorney"and "CriminalDistrictAttorney"in Houre Bill No. 849, it ia
clear that both of eald bills were intended'toapply to "CriminalDistrict
Attorney",since all countiesl withinthe populationbounde named have such
official.

          Van Zandt County. The 1930 populationof this countywas 32,315.
Under Articles3883.2and 3891, the countyattorneycould have been paid aa
much a8 $3,500.00. The 1940 populationwa8 31,155 and under Article3912e,
Section13, he could have been paid an additionalcum of 10% of said salary
for each of said years, elnce the aaseeaedvaluationsfor the years 1941, 1942
and 1943 were $24,067,ggg.O0,$24,064,984.00, and $24,296,412.00,respectively.
Under Article3902.2 the first assistantcountyattorneycould have been paid
not to exceed$2,000.00.

          WilliamsonCounty. This countywas at no time authorizedto have
a crFmina1districtattorneyand what has heretoforebeen eaid as to the in-
validityof law6 providingfor a criminaldistrictattorneyin a countyof this
size is aleo applicablehere. The 1930 populationof this countywas 44,146.
Under Articles3883-3and 3891, the countyattorneycould have been paid a6
much a8 $4,250.00. The 1940 population~88 41,698 and under Article3912e,
Section13, the countyattorneycould have been paid an additional2s for 1942,
& for 1943, and 3% for 1944, since the assessedvaluation6for the respective
precedingyears were $21,206,110.00, $21,799,940.00, and $22,195,150.00.Under
Article 3902.3 the first assistantcould have been paid not to exceed$2,100.00
per annum, and other assistantsnot to exceed$I.,~oo.oo.

         A countyattorneyis requiredto be a duly licensedattorneyat law,
and an assistantcountyattorneymust have the 6am.equalifications
                                                              as the county
attorney. (Articles331 and 332, V. A. C. S.)

         The State Bar Act (Art. 320a-l),which became effectivefn 1939,
providesin part a8 follows:

         "Sec. 2. There Is hereby createdthe State Bar, which is
    hereby constitutedan administrative agency of the JudicialDe-
    partmentof the State,with power to contractwith relationto
    ite own affairaand which may sue and be sued and have such oth-
    er powers a8 are reasonablynecessaryto carry out the purposes
    of this Act.
 ,




Hon. C. H, Cavness,page 19 (o-6676)



          "Sec. 3. All personawho are now or who shall hereafterbe
     licensedto practicelaw In thin State shall constituteand be
     members of the State Bar, and ahallbe subjectto the proviaiona
     hereof and the rule6 adoptedby the SupremeCourt of Texas; and
     all personsnot membersof the State Bar are herebyprohibited
     from practicinglaw in thir State,

          "Withinthe meaning of this Section,all perronsfurnishing
     evidenceof or complyingwith any of the followingprovisions
     &all be deemedae now liceneedto practicelaw within this State,
     viz:

          "(a) That he ie now enrolleda8 an attorney-at-law  before
     the SupremeCourt of this State.
          "(b) A licenseor the issuanceof a licenseby the Board
     of Legal Examinersof thfs State authorizinghim to practicelaw
     within this State.
          "(c) A licenseor the 'leauance of a licenseto practicelaw
     within this State by any authority,which, at the time of the ie-
     nuancethereof,was authorizedby the laws of thie State,then in
     effect,to issue the license."

          Section4 of said State Bar Act authorfzeethe SupremeCourt to pre-
pare and proposerules and regulationsfor disciplining,suspendingand dls-
barring attorneysat law, which said rules and regulationswere to be submit-
ted to the members of the State Bar and a majorityvote was requiredto adopt
any or all of said rules and regulations. Said Act also authorizedthe Supreme
Court to prescribea fee not exceedingFour Dollare ($4.00)per ennum per per-
son to be paid to the Clerk of the SupremeCourt.

          The rules governingthe State Bar, which were approvedin accordance
with the above statutes,providethat the membershipfee prescrrbedby the
SupremeCourt shall be due and payableby each member to the Clerk of the Su-
preme Court on June 1st of each fiscalyear, the fiscal year beginningJune
let and endingMay jlst of the next succeedingyear; that a member in default
of paymentof said fee for sixty days after it was due Shall be regardeda6
delinquentand shallbe given writtennotice thereofby the Clerk of the Su-
preme Court. Then, If the delinquentmember fails to pay such fee within thirty
days after said notice,he shall cease to be a member. Provisionis also made
that if at the end of ninety days after June let a member has not paid to the
Clerk membershipdue for the currentyear the Clerk may strike from the rolle
of the State Bar the name of the delinquentmember.

          You state that Bornepersonshave been used a8 assistantcounty at-
torneyswhose names do not appear in the Texas Legal Directory,or the record
of the SupremeCourt, as being licensedand practicingattorneys. We do not
think that the failureto find the names of said assistantsin the Legal Di-
rectorywould be sufficientevidenceto show that they were not authorized
to hold such officialpositions. As to the names of such aselstantrrnot be-
ing found in the recordsof the SupremeCourt, we think it would be necessary
                                                                           .    .   I




Hon. C. H. Cavness,page 20 (o-6676)



to ehow that the hereinabovereferredto rules had been followedand the name8
of euch aesiatantedroppedfrom the membershiprolls in accordance therewith
before it could be raid that aaid aaristentnshouldnot be conrideredin con-
nectionwith the apportionmenthere under consideration.

          If the abstracters,tax deputiesand clerks referredto by you were
liceneedattorneys,they shouldbe carriedaa aaaistantsbut, if they were
merely what such name6 imply,then they shouldnot be consideredin connection
with making said apportionments.

          As to the use of the namee of stenographers,
                                                     bookkeeper6and investi-
gatorsa8 "assistants"in arrivingat said apportionment,  we agree with the
opinionof this departmentreferredto by you, addrearedto the Comptroller
under date of September15, 1936,and It is our opinionthat such ruling should
be appliedto any of such employeeswhose name8 appear in the schedulesubmlt-
ted by you.

          Article 3912e, Section13(b),which providesfor the apportionment
here under consideration, does not fix any time for the paymentof euch appor-
tionmentinto the County Officer-6' Salary Fund of each county,but we suggest
that, since the Comptrollermust necessarilydeal with two separateapproprla-
tions in each calendaryear, he handle same 88 followe:

          Make the apportionments at the end of each four months'period and
after proper statementshave been made qhewingthe actual aum61paid out, the
apportionments to be made after December31et of any year to be for the pre-
cedingfour months and to adjust any discrepanclee  or errore in the allocation
of the apportionments duringthe year ending on that date. The other times
for the allocationof such apportionments  can be after April 30th and August
31st of each year, and to be made only after receiptof proper statementsa8
to the 8ume actuallypaid out by each of said counties.

          We find two other countiesthat were eligibleto share in these ap-
portionmentsfor the years 1942, 1943 and 1944, a8 well a8 futureapportion-
ments, viz: MontagueCounty and Parker County. The 1940 populationsof these
countieswere 20,442 and 20,482,respectively,  and each of them had and has
a countyattorneywho performsand Is performingthe duties of districtattorney.

          As to the effect of the SpecialFederalCensus in JeffersonCounty
on that county'sapportionment,  we refer you to our OpinionNo. O-6499,a copy
of which Is herewithenclosed. The apportionmentof this countywill now be
made on the basis of ita having a populationin exce88 of 190,000.

          We are unable to find any statuteauthorizingthe Comptrollerto
make adjustmentsof these apportionments  where there have been overpayments
or under-paymentsIn past years. It is our opinionthat where any county or
countieshave been underpaidin allocationsprior to the calendaryear 1945,
such error or error8 cannotbe adjustedout of a currentor future apportlon-
ment, aa all such appropriationa must be used for the year for which they are
appropriated,and it will be necessaryfor the Legislatureto make a specific
. * .




        Hon. C. H. Cavness,page 21 (o-6676)



        appropriationfor such purpose. Where any countyhas receivedmore in past
        apportionments than It wan entitledto, it la our opinionthat the State would
        have a claim again& such county or countieefor the mm or mm 80 received.

                 Your attentionir directedto the followinglaw pannedby the laet
        Legirlaturewhich will likely affectthe amount of theae apportionmentsin
        the future:

                  SenateBill No. 123, Chap. 179, p. 244,Vernon'sTexas SeasionsLaw
        Service,which became effectiveMay 9, 1945, and which amends Articles3891,
        3902, 3912e, Section13 and 3912e, Section15, authorizesthe Commissioners'
        Court, under the conditionsaud an therein eet forth,to increasethe salaries
        of the officialsand deputiesthereinnamed a8 much a8 25s. This would include
        some of the officialsand aesirtantshere being considered.

                                                        Yours very truly,

        APPROVEDOcT.31,1945 ,                      ATT-GEZERALOFTEXAS

        /a/ Carlo@ C. Ashley
                                                   By /s/~Jas.W. Baasett
        FIRST ASSISTAIQ                                  Jan. W. Baesett
        A!ITORNEYGEUERAL                                       Aqeist+nt
                   /
        JwB:LJ:LY ;
        encls.                                                                   .



                                                 APPRO&
                                                 OPINION
                                                COMMITCEB
                                                BY /a/ BWB
                                                  CHAIRMAN
