Does an assistant prosecutor's longevity-pay service credit carry over between Texas counties?

Plain-English summary

In 2001 the Legislature passed House Bill 178, which added subchapter D to chapter 41 of the Government Code to give experienced assistant prosecutors longevity pay. A prosecutor qualifies once they have accrued at least four years of "lifetime service credit." The Harris County Attorney asked the Attorney General two practical questions about how that credit works: does it have to be earned during one continuous stretch of employment, and does credit earned in one county follow a prosecutor who takes a job in a different county?

The Attorney General answered no to the first and yes to the second, and tied both answers to the plain text of the statute. Section 41.257(a) says a prosecutor accrues credit "for the period in which" they serve as a full-time, part-time, or temporary assistant prosecutor. The only express limits are that no credit accrues during a full calendar month of unpaid leave, and that a prosecutor holding more than one qualifying position at the same time gets credit for just one. Nothing requires the service to be continuous, and nothing says credit is forfeited or non-transferable when a prosecutor changes counties. To read in a continuity or same-county requirement, the opinion said, would mean adding words the Legislature did not write, which the office had already declined to do in a related opinion (JC-0438). The opinion also noted the bill applies to credit accrued "before, on, or after" its January 1, 2002 effective date, so pre-enactment service counts, and that the longevity supplement is mandatory: the county must pay it from its general fund, even though the state is supposed to reimburse it. The bill analysis confirmed the purpose was to reward experienced prosecutors for the statewide benefit of enforcing criminal law, with no distinction based on where or how continuously that experience was gained.

Currency note

This opinion was issued in 2002. Subsequent statutory amendments, court decisions, or later Attorney General opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here. Subchapter D of chapter 41 of the Government Code has been amended since 2002, so confirm the current longevity-pay rules before relying on this opinion.

What the opinion meant for those who asked

Counties paying assistant-prosecutor longevity pay (what the opinion held for them): The opinion concluded a county must count a prosecutor's qualifying service even if it was not continuous and even if some or all of it was performed in another county. A county hiring a prosecutor with credit accrued elsewhere was obligated to pay longevity based on that credit from its general fund.

Assistant prosecutors (what the opinion held for them): The opinion concluded that a prosecutor's lifetime service credit toward the four-year longevity threshold was not erased by a break in employment or a move between counties, and that service before the law took effect counted.

Harris County, which asked (what the opinion held for it): The opinion told Harris County it had to credit a returning prosecutor's earlier Harris County service and had to honor credit a newly hired prosecutor brought from another county.

Common questions

Does an assistant prosecutor lose longevity credit by switching counties?
Under this opinion, no. The Attorney General found nothing in the statute making the credit non-transferable, so credit earned in one county counts when the prosecutor works in another.

Does the four years of service have to be continuous?
No. The opinion concluded the statute imposes no continuous-employment requirement, so a prosecutor who left and later returned still counts the earlier service.

Does service before the law passed count?
Yes. The opinion noted House Bill 178 applies to lifetime service credit accrued "before, on, or after" its January 1, 2002 effective date.

Is the county required to pay this longevity supplement?
Yes. The opinion described section 41.255(a) as mandatory: the county pays the supplement from its general fund, and must do so whether or not the Legislature appropriated enough to reimburse it.

Background and statutory framework

Subchapter D of chapter 41 of the Government Code, added by House Bill 178, entitles an assistant prosecutor to longevity pay if, on the first workday of the month, the prosecutor is a full-time employee not on leave without pay and has accrued at least four years of lifetime service credit by the end of the prior month. Tex. Gov't Code Ann. § 41.252(a) (Vernon Supp. 2002). Accrual is governed by section 41.257: subsection (a) credits the period served as a full-time, part-time, or temporary assistant prosecutor; subsection (b) denies credit for a full calendar month on unpaid leave; and subsection (c) gives a prosecutor who simultaneously holds multiple qualifying positions credit for only one. Tex. Gov't Code Ann. § 41.257(a)-(c) (Vernon Supp. 2002). The opinion treated subsections (b) and (c) as the only express limits, and declined to read a continuity or same-county requirement into subsection (a), citing its earlier opinion JC-0438 for the principle that the office cannot supply such an emendation.

The opinion noted that section 3 of House Bill 178 makes the subchapter apply to credit accrued "before, on, or after" the January 1, 2002 effective date. Act of May 15, 2001, 77th Leg., R.S., ch. 378, §§ 2, 3, 2001 Tex. Sess. Law Serv. 663, 665. On the payment obligation, section 41.255(a) requires the county to pay the supplement from its general fund, which JC-0438 had already construed as mandatory regardless of state reimbursement under section 41.255(d); section 41.255(c) apportions the supplement among counties by population when a prosecutor serves several simultaneously. Tex. Gov't Code Ann. § 41.255(a), (c), (d) (Vernon Supp. 2002). The bill analysis confirmed the legislative purpose was to reward experienced prosecutors for the statewide benefit of enforcing the criminal law, drawing no distinction based on the continuity or locale of that experience.

Citations

Statutory provisions:

• Tex. Gov't Code Ann. § 41.252(a) (Vernon Supp. 2002)
• Tex. Gov't Code Ann. § 41.257(a) (Vernon Supp. 2002)
• Tex. Gov't Code Ann. § 41.257(b) (Vernon Supp. 2002)
• Tex. Gov't Code Ann. § 41.257(c) (Vernon Supp. 2002)
• Tex. Gov't Code Ann. § 41.255(a) (Vernon Supp. 2002)
• Tex. Gov't Code Ann. § 41.255(c) (Vernon Supp. 2002)
• Tex. Gov't Code Ann. § 41.255(d) (Vernon Supp. 2002)
• Act of May 15, 2001, 77th Leg., R.S., ch. 378, §§ 2, 3, 2001 Tex. Sess. Law Serv. 663, 665

Source

• Landing page: https://www.texasattorneygeneral.gov/opinions/john-cornyn/jc-0473
• Original PDF: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/2002/jc0473.pdf

Original opinion text

Best-effort transcription from the official scanned PDF. Minor character-level errors from the source OCR have been corrected; the linked PDF is authoritative.

OFFICE OF THE ATTORNEY GENERAL - STATE OF TEXAS

JOHN CORNYN

March 7, 2002

The Honorable Michael A. Stafford
Harris County Attorney
1310 Prairie, Room 940
Houston, Texas 77002

Opinion No. JC-0473

Re: Meaning of "lifetime service credit" for purposes of subchapter D of chapter 41 of the Government Code, which mandates longevity pay for certain assistant prosecutors (RQ-0442-JC)

Dear Mr. Stafford:

You have asked this office two questions concerning the implementation of House Bill 178 as adopted by the Seventy-seventh Legislature, which adds to chapter 41 of the Government Code a subchapter D, concerning longevity pay for assistant prosecutors. Those questions, as your letter phrases them, are "whether 'lifetime service credit' must be earned during a continuous period of employment and whether 'lifetime service credit' earned in one county transfers to another county in the event an assistant prosecutor changes jobs."[1] In answer to your first question, we conclude that no requirement of continuous employment is to be found in the statute. In answer to your second question, it does not appear that the accrual of lifetime service credit is affected by a change in the county employing the prosecutor.

Section 41.252 of the Government Code provides in relevant part:

(a) An assistant prosecutor is entitled to longevity pay to be included in the assistant prosecutor's monthly compensation if the assistant prosecutor:

    (1) is a full-time employee on the first workday of the month;

    (2) is not on leave without pay on the first workday of the month; and

    (3) has accrued at least four years of lifetime service credit not later than the last day of the preceding month.

TEX. GOV'T CODE ANN. § 41.252(a) (Vernon Supp. 2002).

Accrual of lifetime service credits is governed by section 41.257 of the Government Code. Section 41.257(a) provides that "[a]n assistant prosecutor accrues lifetime service credit for the period in which the assistant prosecutor serves as a full-time, part-time, or temporary assistant prosecutor." Id. § 41.257(a). As you note, section 41.257(b) provides that "[a]n assistant prosecutor who is on leave without pay for an entire calendar month does not accrue lifetime service credit for the month." Id. § 41.257(b). Further, section 41.257(c) provides that an assistant prosecutor who simultaneously holds more than one position for which such credit accrues "accrues credit for only one of the positions." Id. § 41.257(c). Subsections (b) and (c) of section 41.257 are the only express limitations on the accrual of lifetime service credit in subchapter D.

Given the restriction of section 41.257(b), that "even while an assistant prosecutor is continually employed in one county, he or she may not earn 'lifetime service credit' for every month employed," you ask in effect whether the prior service of an assistant prosecutor who had worked for Harris County for a period of years, then left the county's employ, and later returned, would be counted in determining his or her lifetime service credit. Request Letter, supra note 1, at 1-2. In our view, such prior service must be credited.

Pursuant to section 3 of House Bill 178, the subchapter "applies to lifetime service credit accrued under that subchapter before, on, or after the effective date of this Act." Act of May 15, 2001, 77th Leg., R.S., ch. 378, §§ 2, 3, 2001 Tex. Sess. Law Serv. 663, 665 (effective date of January 1, 2002) (emphasis added). Accordingly, an assistant prosecutor who served before this subchapter was adopted has "accrue[d] lifetime service credit for the period in which the assistant prosecutor serve[d] as a full-time, part-time, or temporary assistant prosecutor." TEX. GOV'T CODE ANN. § 41.257(a) (Vernon Supp. 2002). The only express restrictions on the accrual of lifetime service credit to be found in subchapter D are those which provide that service credit does not accrue while a prosecutor is on unpaid leave, id. § 41.257(b), and that a prosecutor simultaneously employed by multiple counties only accrues credit for one position, id. § 41.257(c). Were we to agree that continuous employment was necessary for such accrual, it would be necessary for us in effect to add qualifying terms such as "continuously in a particular county" to section 41.257(a). "[T]his office," as we pointed out in a prior opinion on this subchapter, "has no power to supply such an emendation." Tex. Att'y Gen. Op. No. JC-0438 (2001) at 3.

You further ask "if Harris County were to hire an assistant prosecutor who had accrued 'lifetime service credit' in another county, would Harris County be obligated to pay longevity based on that accrued 'lifetime service credit.'" Request Letter, supra note 1, at 2. For the reasons already articulated in answer to your first question, we conclude that Harris County would be so obligated.

Section 41.255(a) provides that "[t]he county shall pay a longevity pay supplement under this subchapter out of the county general fund." TEX. GOV'T CODE ANN. § 41.255(a) (Vernon Supp. 2002) (emphasis added). This provision is mandatory, not discretionary. Attorney General Opinion JC-0438, which recently construed this language, specifically held that while section 41.255(d) requires that the state reimburse such payments, "the statute in question requires the county to make this payment whether or not the legislature has appropriated enough for the county to be reimbursed." Tex. Att'y Gen. Op. No. JC-0438 (2001) at 1.

Nothing in the statutory language suggests that service credit accrued in one county would be lost should an assistant prosecutor take employment in a different county. The only restriction even akin to this is the requirement in section 41.257(c) that a prosecutor who serves simultaneously in multiple counties may only count service credit accrued in a single county. (The supplement for such a prosecutor is, pursuant to section 41.255(c), to be apportioned among the counties involved on the basis of population.) Nothing in the statute as written suggests that such credit is non-transferable, and accordingly we cannot interpolate such a requirement.

In its discussion of the background and purpose of this legislation, the bill analysis notes:

In the State of Texas there are approximately 1,600 assistant district attorneys, assistant criminal district attorneys, and assistant county and district attorneys. Many of these prosecutors have more than four years experience in this field. Although these assistant prosecutors are largely responsible for the enforcement of the state's felony criminal laws in Texas courts, their salaries are paid largely by individual counties. The salaries for experienced prosecutors have failed to keep pace with the salaries available in the private sector for experienced attorneys. House Bill 178 provides state longevity pay for certain assistant felony prosecutors who have accrued at least four years of lifetime service credit.

HOUSE COMM. ON JUDICIAL AFFAIRS, BILL ANALYSIS, Tex. H.B. 178, 77th Leg., R.S. (2001) (emphasis added). As the emphasized portion of the bill analysis makes clear, the intent of the bill was to offer an incentive for experienced prosecutors to engage in public service. That service is the enforcement of the state's criminal law, a matter of general state-wide concern; and the provision of experienced and competent counsel in this regard is a benefit to the state generally. Nothing in this analysis suggests a distinction based either upon the continuity of that experience or the locale in which it was gained.

SUMMARY

For the purposes of chapter 41, subchapter D of the Texas Government Code, the accrual of lifetime service credit by an assistant prosecutor is not dependent on either the continuity of that service or the county in which it is performed.

Attorney General of Texas

HOWARD G. BALDWIN, JR.
First Assistant Attorney General

NANCY FULLER
Deputy Attorney General - General Counsel

SUSAN DENMON GUSKY
Chair, Opinion Committee

James E. Tourtelott
Assistant Attorney General, Opinion Committee

[1] Letter from Honorable Michael A. Stafford, Harris County Attorney, to Honorable John Cornyn, Texas Attorney General (Sept. 20, 2001) (on file with Opinion Committee) [hereinafter Request Letter].