                                              GREG        A B B O T T




                                                 August 14,2007


The Honorable Cindy Stormer                             Opinion No. GA-0562
235th Judicial District Attorney
Cooke County Courthouse                                 Re: Whether a district attorney may accept donations
Gainesville, Texas 76240                                of funds (RQ-0571-GA)

Dear Ms. Stormer:

        You ask (1) whether you, as District Attorney, may accept donations of funds and use them
to pay your employees; (2) whether the Cooke County Commissioners Court must accept donated
funds before they may be used to compensate your employees; and (3) whether the Commissioners
Court may accept funds donated to compensate your employees but use the funds for a different
purpose.'

I.       Background

       You inform us that you wish to supplement the compensation that your employees receive
from the county. See Request Letter, supra note 1, at 1. You propose forming a non-profit
corporation "whose purpose would be to accept deductible contributions which are then donated to
Cooke County or the District Attorney for the express purpose of being used to either increase the
compensation paid to the district attorney's employees for their services or otherwise to reward those
employees." Id.

11.      District Attorney's Authority to Accept Gifts

        You ask first whether, as District Attorney for the 235th Judicial District, you may accept
donations and use them to pay your employees at your discretion. Id. at 1-2. Chapter 41, subchapter
B of the Government Code delineates the general powers of a prosecutor (including a district
attorney) and the commissioners court with respect to the prosecutor's staff. See TEX.GOV'TCODE
ANN. $5 41.101-.I10 (Vernon 2004) (subchapter B, entitled "Staff of Prosecuting Attorney").
Subchapter B authorizes a district attorney to hire assistants and other personnel and to "fix" their
salaries. See id. $ 5 4 1.102(a), .106(a). But the district attorney's authority to "fix" employee salaries


         'See Letter from Honorable Cindy Stormer, District Attorney, 235th Judicial District, to Honorable Greg Abbott,
Attorney General of Texas, at 1-2 (Feb. 16, 2007) (on file with the Opinion Committee, also available at
http:/lwww.oag.state.tx.us) [hereinafter Request Letter].
The Honorable Cindy Storrner - Page 2                   (GA-0562)



is subject to the commissioners court's approval, and the court may accept or change the amount of
such salaries when it approves the county's budget. See id. 5 41.106(a); Comm 'rs Court of Caldwell
County v. Criminal Dist. Attorney, 690 S.W.2d 932, 936-39 (Tex. App.-Austin 1985, writ ref d
n.r.e.) (construing the predecessor of TEX.GOV'TCODEANN. 5 41. 106).2

        Chapter 4 1, subchapter B expressly addresses donations for prosecutorial purposes. Section
4 1.108 grants authority to the "commissioners court of the county or counties composing a district
[to] accept gifts and grants from any foundation or association for the purpose of financing adequate
and effective prosecution programs in the county or district." TEX.GOV'TCODEANN. 5 4 1.108
(Vernon 2004). No statute in chapter 41 or elsewhere grants comparable authority to prosecutors
generall~.~ Instead, the Legislature has given two individual prosecutors the authority to accept gifts
and grants, which would have been unnecessary if prosecutors as a class possessed such authority.
See TEX.GOV'TCODEANN.5 44.337 (Vernon 2004) (establishing office of criminal district attorney
for Waller County and authorizing that officer to accept certain gifts and grants to finance or assist
with prosecutions); id. 5 45.145 (establishing duties of county attorney of Colorado County and
authorizing that officer and the commissioners court to accept gifts or grants "for the purpose of
financing or assisting the operation of the office of county attorney"). Because statutes expressly
authorize a commissioners court to accept grants and gifts, but do not grant comparable authority to
a prosecutor except in two instances, we may conclude that the Legislature did not intend to bestow
such authority on prosecutors generally. See Johnson v. Second Injury Fund, 688 S.W.2d 107,109
(Tex. 1985) (stating that "it is a settled rule [of statutory construction] that the express mention or
enumeration of one person, thing, consequence, or class is equivalent to an express exclusion of all
others" (quoting State v. Mauritz- Wells Co., 175 S.W.2d 238,241 (Tex. 1943))).

        We conclude that prosecuting attorneys do not have the authority to accept gifts or grants
except as expressly provided by statute. And because no statute provides your office with such
authority, we conclude you do not have the authority to accept donations as you propose. See TEX.
GOV'TCODEANN. 5 43.169 (Vernon 2004) (establishing office of district attorney for the 235th
Judicial District); see also Tex. Att'y Gen. LO-94-083, at 1, 3 (concluding that a district attorney
lacks authority to accept contributions for prosecution programs). Because you do not have authority
to accept donations, we need not address your questions that are predicated on your possessing such
authority. See Request Letter, supra note 1, at 1-2.



         'The commissioners court does not have complete authority to determine the compensation of a district
attorney's assistants and staff. For example, the commissioners court may not reduce the salary of an assistant prosecutor
receiving longevity pay to offset the amount of such pay. See TEX.GOV'TCODEANN.41.255(b) (Vernon 2004). Also,
a prosecutor has sole discretion to expend the "hot check fund," limited to the office's expenses and employee salaries.
See TEX.CODECRIM.PROC.ANN.art. 102.007(f) (Vernon 2006).

           3Chapter41's only other reference to the acceptance of gifts is section 41.004 of the Government Code, which
provides that a district or county attorney "may not take from any person a fee, article of value, compensation, reward,
or gift, or a promise of any ofthese, to prosecute a case that he is required by law to prosecute." TEX.GOV'TCODEANN.
4 4 1.004(a) (Vernon 2004). The courts have not yet determined the scope of this ban, however. See State v. Terrazas,
970 S.W.2d 157, 160 (Tex. App.-El Paso 1998) (suggesting without deciding that the statute may apply to individual
officers rather than to the office of a district or county attorney), afd, 4 S.W.3d 720 (Tex. Crim. App. 1999).
The Honorable Cindy Stormer - Page 3                      (GA-0562)



111.     Commissioners Court's Authority to Accept Donations

       You ask whether the Commissioners Court "can (or must)" accept funds donated to
compensate your employees "to be effectual." Request Letter, supra note 1, at 2. We first consider
a commissioner court's authority to accept gifts. Section 81.032 of the Local Government Code
expressly authorizes a commissioners court to "accept a gift, grant, donation, bequest, or devise of
money or other property on behalf of the county for the purpose of performing a function conferred
by law on the county or a county officer." TEX.LOC.GOV'TCODEANN.5 8 1.032 (Vernon Supp.
2006).~ Compensation of the district attorney's employees is a "function conferred by law
on the county." See id. ; TEX. GOV'TCODEANN. 5 41.106(a) (Vernon 2004). Consequently, a
commissioners court may accept donations of funds to compensate the district attorney's employees,
provided the court exercises that authority consistently with the constitution and other law.5

        The second aspect of your question is whether the Commissioners Court must accept a
donation to compensate your employees to "be effectual," i.e., whether donated funds must be
accepted by the Commissioners Court before they may be paid to your employees. Request Letter,
supra note 1, at 2. Other than the commissioners court, no county or district official is authorized
to accept donations for prosecutorial purposes. See TEX.GOV'TCODEANN.5 41.106(a) (Vernon
2004); Tex. Att'y Gen. Op. No. GA-0229 (2004) at 10 (observing that absent "a specific statute
authorizing the sheriff, or any other county official, to accept donated property, the commissioners
court is the proper body to accept property donations on the county's behalf'). And, donations
directly from a private entity to the employees would likely constitute an illegal gift. See TEX.
PENALCODEANN.$5 36.08-.09 (Vernon 2003), 36.10 (Vernon Supp. 2006) (generally prohibiting
gifts to public servants); see also Kasling v. Morris, 9 S.W. 739, 740 (Tex. 1888) (holding that a
peace officer is not entitled to compensation from a private party for performing acts which it is his
official duty to perform); Crosby County Cattle Co. v. McDermett, 28 1 S.W. 293,293-94 (Tex. Civ.
App.-Amarillo 1926, no writ) (holding that a public officer is not entitled to compensation from
a private party "for the performance of acts within the scope of his official duties"). Thus, we
conclude that acceptance of donated funds by a commissioners court is necessary before such funds
may be used to compensate a district attorney's employees.


         4Section4 1.108 ofthe Government Code, discussed above, also authorizes a commissioners court to accept gifts
and donations "for the purpose of financing adequate and effective prosecution programs." See TEX.GOV'TCODEANN.
5 4 1.108 (Vernon 2004). However, the statutes do not define the term "prosecution programs," and the courts have not
addressed whether section 41.108 authorizes acceptance of donations for prosecutor employee compensation. Because
we conclude that commissioners courts have such authority under section 8 1.032 of the Local Government Code, we
need not construe the scope of section 41.108 of the Government Code. See TEX.LOC.GOV'TCODEANN. 8 1.032
(Vernon Supp. 2006).

          'This office has observed that section 81.032 of the Local Government Code does not allow a commissioners
court to accept donations for purposes contrary to the constitution or law. See Tex. Att'y Gen. Op. No. GA-0345 (2005)
at 2-3 (discussing TEX.LOC.GOV'TCODEANN. 5 81.032). Article 111, section 53 of the Texas Constitution denies
counties the authority to grant "any extra compensation, fee or allowance to a public officer, agent, [or] servant . . . after
service has been rendered." See TEX.CONST.art. 111, 5 53. Accordingly, while the commissioners court may accept
donations for the purpose ofprospectively supplementing the salaries of the district attorney's employees, the funds may
not be paid as a bonus for services previously rendered. See id.; Tex. Att'y Gen. Op. No. JM-1253 (1990) at 2-3.
The Honorable Cindy Stormer - Page 4           (GA-0562)



IV.    Commissioners Court's Discretion to Use Funds Donated for a Specific Purpose

        Finally, you ask whether the Commissioners Court may accept funds donated for the purpose
of compensating your employees, but use the funds for some other purpose. See Request Letter,
supra note 1, at 2. A county commissioners court's authority to determine the county's budget and
to appropriate its funds is generally broad. See Hooten v. Enriquez, 863 S.W.2d 522, 529 (Tex.
App.-El Paso 1993, no writ) (observing that "[glenerally, the allocation of county funds is . . . left
to the sound discretion of the commissioners court"); see also City of Sun Antonio v. City of Boerne,
111 S.W.3d 22, 27 (Tex. 2003) (stating that a commissioners court's primary duty is to administer
the county's business affairs). Section 4 1.108 of the Government Code authorizes a commissioners
court to accept gifts and grants "for the purpose of financing adequate and effective prosecution
programs in the county or district." TEX.GOV'TCODEANN. 5 41.108 (Vernon 2004). Section
8 1.032 of the Local Government Code authorizes a commissioners court to accept gifts or donations
"for the purpose of performing a [county] function." See TEX.LOC.GOV'TCODEANN. 5 81.032
(Vernon Supp. 2006). While the commissioners court's authority under these statutes is limited to
accepting gifts donated for the purposes of "prosecution programs" and other county functions,
neither statute answers whether a commissioners court must use donated funds only as specified by
the donor.

        The common law of gifts, however, limits a commissioners court's authority to expend funds
that are donated subject to a specific condition on their use. Under the common law, a donor who
makes a gift subject to a condition may revoke the gift if the donee refuses to perform or otherwise
violates the condition. See McClure v. McClure, 870 S.W.2d 358, 361 (Tex. App.-Fort Worth
1994, no writ); cJ: Stewart v. Blain, 159 S.W. 928, 930-3 1 (Tex. Civ. App.-Galveston 1913, no
writ) (holding that a county's sale of property that was donated for school purposes violated a
conditional limitation and resulted in reversion of the property to the donors). Consistent with the
law concerning conditional gifts, this office has advised that section 4 1.108 of the Government Code
grants a commissioners court discretion to determine how to use donated funds to finance adequate
and effective prosecutorial programs, but only "to the extent that it will not contravene any valid
conditions placed upon the contribution (to which the county has agreed)." See Tex. Att'y Gen.
LO-94-083, at 3 (concluding that district attorney lacked authority to accept contributions for
prosecutorial programs). We conclude that if a commissioners court accepts funds that were donated
on condition that they be used to compensate the district attorney's employees, but uses the funds
for an inconsistent purpose, the commissioners court risks revocation of the donated funds.
The Honorable Cindy Stormer - Page 5         (GA-0562)



                                      S U M M A R Y

                     District attorneys generally are not authorized to accept funds
              donated to compensate their employees. A commissioners court is
              authorized to accept such donations, and a commissioners court's
              acceptance of such donations is necessary before the funds may be
              used to compensate a district attorney's employees.

                      A commissioners court that accepts funds donated on
              condition that the funds be used to compensate the district attorney's
              employees, but fails to use the hnds for that purpose, risks revocation
              of the donation.

                                             Very truly yours,



                                           &@GREG
                                                       I
                                                        B OTT
                                                         /
                                             Attorney General of Texas


KENT C. SULLIVAN
First Assistant Attorney General

NANCY S. FULLER
Chair, Opinion Committee

William A. Hill
Assistant Attorney General, Opinion Committee
