                       The Attorney General of Texas
                                                July   10,     1978
JOHN L. HILL
Attorney General


                   Honorable Fred Toler                                       Opinion No. H- 1286”
                   Executive Director
                   Texas Commission on Law Enforcement                        Re: Authority of the District
                      Officer Standards & Education                           Attorney in Travis County to
                   llO6 Clayton Lane, Ste. 220-E                              appoint investigators without the
                   Twin Towers Office Building                                approval of the Commissioners
                   Austin, Texas 78723                                        Court.

                   Dear Mr. Toler:

                         You have requested our opinion regarding the authority of the District
                   Attorney of Travis County to appoint investigators without the approval of
                   the Commissioners Court.

                          Prior   to its last     amendment,        article     326k-14, V.T.C.S.,   read in its
                   entirety:

                                     Section 1. The District Attorney for the 53rd
                                  Judicial District shall represent       the State in all
                                  criminal cases before the Criminal District Court .of
                                  Travis County, Texas, the S3rd Judicial District Court,
                                  the 98th Judicial District Court, the 126th Judicial
                                  District Court, and all other District Courts of said
                                  County.
                                     Sec. 2. The District Attorney shall appoint a First
                                  Assistant District Attorney and such other assistants
                                  and secretaries    as shall be necessary to the proper
                                  performance     of his official duties.    The number of
                                  assistants and secretaries’ to be appointed and the
                                  compensation to be paid shall be with the approval of
                                  the Commissioners Court of Travis County, Texas.
                                     Sec. 3. The District Attorney of the 53rd Judicial
                                   District shall be paid a salary in an amount not to
                                  exceed the total salary paid from State and county
                                  funds to the Judge of the Criminal District Court or
                                  other District Judges of Travis County nor less than
                                  the salary paid from State funds alone to the Judge of




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    Honorable Fred Toler    -   Page 2   (H-12 96)



               the Criminal District Court or other District Judges of
               Travis County, Texas. The First Assistant District Attorney
               shall receive a salary not less than Seven Thousand, Five
               Hundred Dollars ($7,500) nor more than Ten Thousand
               Dollars ($10,000) per year and other Assistant District
               Attorneys shall receive salaries not less than Five Thousand
               Dollars ($5,000) nor more than Seven Thousand, Five
               Hundred Dollars ($7,500) per year.
                  Sec. 4. The Commissioners Court of Travis County is
               hereby authorized to pay the salaries.provided   in Section 3
               of this Act or to supplement the salaries of the District
               Attorney and Assistant District Attorneys paid by the State
               of Texas in such an amount that the total salaries paid shall
               not exceed the maximum provided herein.

    Acts 1963, 58th Leg., ch. 187, at 502 (emphasis added). Thus, under the statute as it
    existed from 1963 to 1969, the Travis County District Attorney was empowered to
    appoint all “assistants and secretaries     as shall be necessary to the proper
    performance of his official duties.”     The number of these personnel was to be
    regulated, and their salaries approved, by the Commissioners Court.          Clearly,
    however, the sole authority to appoint was conferred upon the District Attorney,
    and the only limitation upon that authority was the maximum number of positions
    fixed by the Commissioners Court.

          In 1969, article 326k-14 was amended to its present version:

                 Section i. The District Attorney of the 53rd Judicial
               District shall represent the State of Texas in all criminal
               cases before all the District Courts of Travis County, Texas.

                  Sec. 2. The District Attorney of the 53rd Judicial District
               shall appoint a First Assistant District Attorney and such
               other Assistant District Attorneys as shall be necessary to
               the proper performance of his official duties. The number
               of assistants to be appointed and the compensation to be
               paid shall be with the approval of the Commissioners Court
               of Travis County, Texas.        The First Assistant District
               Attorney and other Assistant District Attorneys shall be
               duly licensed to practice law in the State of Texas and shall
               be authorized to perform any official act delving [sic1 upon
               or authorized to be performed by the District Attorney,
               under the direction of the District Attorney, and shall be
               subject to removal at the will of the District Attorney.




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        Honorable Fred Toler     -   Page 3     (H-1206)



                      Sec. 3. The District Attorney of the 53rd Judicial   District
                   shall appoint as many stenographers,     secretaries,   investi-
                   gators and other office personnel to be appointed       and the
                   compensation to be paid shall be with the approval       of the
                   Commissioners Court of Travis County, Texas.

                      Sec. 4. The District Attorney of the 53rd Judicial District
                   shall be paid a salary in an amount equal to the total salary
                   paid from State and County Funds to the Judge of the 53rd
                   Judicial District Court of Travis County, Texas, excluding
                   any compensation paid to the Judge of the 53rd Judicial
                    District Court of Travis County, Texas, with reference to
                   juvenile board matters.        The First Assistant District
                   Attorney shall be paid a salary not to exceed Fifteen
                   Thousand Dollars ($15,000.00) per year, and the other
                   Assistant District Attorneys shall be paid a salary not to
                   exceed Twelve Thousand-Five Hundred Dollars ($12,500.00)
                   per year. The Commissioners Court of Travis County, Texas
                   ls hereby authorized to supplement the salaries of the
                   District Attorney and the Assistant District Attorneys paid
                   by the State of Texas in such an amount that the total
                   salaries paid shall not exceed the maximum provided herein.

        Acts 1969, 61st Leg., ch. 56, at 157.

               According to the bill analysis, the only purpose of the amendment was “to
        raise the salaries of the District Attorney and his assistants.” But, in addition, the
        form of the statute was altered, so that the District Attorney’s authority to appoint
        assistant district attorneys remained in section 2, while his authority to appoint
        various “assistants and secretaries” was transferred       to a completely rewritten
        section 3, and “stenographers” and “secretaries” were specifically listed among the
        “other office personnel” which the District Attorney was empowered to appoint.

                As presently written, section 3 is not a meaningful sentence. The comparison
        which begins “as many. . .‘I is not completed, while “to be appointed” appears to be
        redundant.     It is probable that several words were inadvertently omitted from the
        statute.

               We are supported in this belief by the bill analysis regarding the 1969
        amendment.     If the amendment had been meant to alter the method of appointing
        “assistants and secretaries” in the office of the Travis County District Attorney,
        either by requiring individual confirmation    or by removing the Commissioners
        Court’s authority to impose a limit on the number of positions, it would seem that
        such a change would have been reflected in the. bill analysis. However, the only




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Honorable Fred Toler - Page 4 (H-1206)




substantive purpose of the amendment appears to have been to raise salaries. The
reorganization  of the various sections of article 326k-14 appears to have been
merely a matter of form.

       Although a specific statute, such as article 326k-14, is generally held to
prevail over a general statute dealing with the same subject matter, in the present
instance a particular provision of the specific statute is meaningless.        In that
event, we believe it is permissible to consider the general enactment.     Application
Of the relevant portion of article  3902, V.T.C.S., to the appointment power of the
Travis County District Attorney leads to the same result as does resort to the pre-
1969 version of article 326k-14.      On the basis of these considerations, it is our
opinion that the Travis County District Attorney may appoint investigators without
the approval of the Commissioners Court pursuant to article 326k-14. The
Commissioners Court has authority, however, to fix the maximum number of, and
salaries for, such positions.

       The Honorable Ronald Earle, District attorney        of Travis County, has
explained the procedure of appointing investigators in Travis County as follows:

           The procedure followed by this office in appointing investi-
           gators can perhaps be better understood if such investigators
           were represented as being of two different types:          the first
           being those investigators      who are compensated        by Travis
           County and for whom slots have therefore ~been approved in
           the budget of this office by the Travis County Commissioners
           Court, and thus for which Commissioners’ Court approval is
           necessary because of compensation.         The second type would
           include investigators who are appointed by this office but not
           compensated by Travis County.          Therefore, no request was
           submitted to the Commissioners’ Court seeking authority to
           appoint uncompensated investigators . . . All Travis County
           investigators,    including those not compensated        by Travis
           County, were appointed to investigate matters under Travis
           County jurisdiction.        The practice of appointing uncom-
           pensated investigators without seeking Commissioners Court
           approval has been done in my administration         since January,
           1977.    It is my  understanding  that  at least one  prior district
           attorney also appointed uncompensated investigators without
           seeking Commissioners’ Court approval.

       We believe this procedure is within the legal oontemplation of article 326k-14
and that you can rely on it in your certification.   Should the Commissioners Court
take action to fix the maximum number of compensated              and uncompensated
investigators for the District Attorney% Office and should this create a conflict of
opinion between the District Attorney and the Commissioners Court a different
question would be presented.




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                                                      .,~
              Honorable    Fred   Toler   - page    5 (H-1206)
,


                                           SUMMARY

                     The Travis     County    District  Attorney   may appoint
                     investigators pursuant to the authority of article 326k-14,
                     V.T.C.S., without the approval of the Commissioners Court,
                     but the Commissioners Court has authority        to fix the
                     maximum number of such positions.

                                                   Very truly yours,




                                                   Attorney General of Texas


        APPROVED:




        Opinion Committee




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