Does the Fayette County attorney get paid like a district attorney under Texas law?

Texas AG Opinion JM-1264: Is the Fayette County Attorney Paid as a District Attorney?

Plain-English summary

In some Texas counties the county attorney also does the work of a district attorney, prosecuting felonies in the district court. Fayette County is one of those: it sits in the 155th Judicial District with Austin and Waller Counties, and while the voters of Austin and Waller elect a separate district attorney for that district, section 45.175 of the Government Code makes the Fayette County attorney perform the duties of a district attorney. Comptroller Bob Bullock asked the Attorney General whether that means the Fayette County attorney should be paid as a district attorney.

The Attorney General said no. The state supplements the pay of local prosecutors through the Professional Prosecutors Act, Chapter 46 of the Government Code. Section 46.003 gives a covered "prosecutor" state pay equal to 90 percent of a district judge's salary. But Chapter 46 does not reach every prosecutor. Section 46.002 lists exactly which offices it covers, and subsection (3), which names the county attorneys who perform district-attorney duties and are treated as prosecutors, does not include Fayette County. So the Fayette County attorney does not fit the Chapter 46 definition of "prosecutor" and does not draw the section 46.003 supplement.

The opinion backed this up with the rules courts use to read statutes together. Section 46.001 (the definition) and section 46.002 (the list) were enacted at the same time in 1985. When a general provision and a specific one conflict and cannot be reconciled, the specific one controls (Government Code § 311.026(b)). The specific provision here is the section 46.002(3) list, so the fact that section 45.175 gives the Fayette County attorney a district attorney's general-law powers does not override the list. The Legislature reinforced that reading in 1989 when it amended section 46.002(3) to add three more counties by name, without adding Fayette. Chapter 46, the opinion concluded, is the exclusive provision governing the pay of county attorneys who perform district-attorney duties, and Fayette County is simply not in it.

Currency note

This opinion was issued in 1990. Subsequent statutory amendments, court decisions, or later AG 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.

Who this opinion affected (as of 1990)

The Fayette County attorney: The opinion concluded this office was not entitled to the state prosecutor pay under section 46.003, despite performing district-attorney duties, because Chapter 46 did not list Fayette County among the offices it covered.

The Comptroller of Public Accounts: As the state officer who would issue the supplemental pay, the Comptroller received a clear answer that no Chapter 46 supplement was owed to the Fayette County attorney.

County attorneys performing district-attorney duties elsewhere: The opinion confirmed that eligibility for the state supplement turned entirely on being named in section 46.002(3), not on the general grant of district-attorney powers, so any similarly situated office had to look to the statutory list to know its status.

Common questions

Why doesn't performing a district attorney's duties come with a district attorney's pay?
Because the pay comes from a separate statute. The Professional Prosecutors Act (Chapter 46) supplies the state supplement, and it applies only to the offices it lists. Doing the work of a district attorney under section 45.175 does not by itself place a county attorney within Chapter 46.

What would it take for the Fayette County attorney to be covered?
The office would have to be named in the list in section 46.002(3). The opinion noted the Legislature amended that list in 1989 to add three counties, which showed that adding a county is how coverage is granted, and Fayette was not added.

Who does get paid as a prosecutor under Chapter 46?
The prosecutors the statute designates, including the county attorneys performing district-attorney duties that section 46.002(3) specifically lists. A covered prosecutor receives state pay equal to 90 percent of a district judge's salary under section 46.003(a).

Background and statutory framework

Section 24.254 of the Government Code places Austin, Fayette, and Waller Counties in the 155th Judicial District. Section 43.160 provides that the voters of Austin and Waller Counties elect a district attorney for the 155th Judicial District who represents the state in the district court only in those counties. Section 45.175 provides that in Fayette County the county attorney performs the duties imposed on, and has the powers conferred on, district attorneys by general law.

The compensation question turned on the Professional Prosecutors Act, Chapter 46 of the Government Code. Section 46.001 provides that county attorneys performing the duties of district attorney are "prosecutors" under the Act. Section 46.003(a) provides that each such prosecutor is entitled to state compensation equal to 90 percent of the compensation provided for a district judge in the General Appropriations Act (Acts 1989, 71st Leg., ch. 1254, § 2, at 5057, effective September 1, 1989, as amended). But section 46.002 delineates the prosecutors subject to the chapter, and it applies only to prosecutors in the counties named in that section. Section 46.002(3) lists the county attorneys performing district-attorney duties who come within the chapter, and the Fayette County attorney is not listed.

Sections 46.001 and 46.002 were both enacted at the same legislative session as part of Senate Bill 1228 (Acts 1985, 69th Leg., ch. 480, § 1, at 1969, effective September 1, 1985). Under section 311.026(b) of the Government Code, when the conflict between a general and a special provision is irreconcilable, the special provision prevails unless the general provision is the later enactment and the manifest intent is that it prevail. Here, the section 46.002(3) list is the special provision. The opinion found the Legislature's intent confirmed by House Bill 600 (Acts 1989, 71st Leg., ch. 811, § 1, at 3676), which amended section 46.002(3) to add three additional counties without adding Fayette. Because Chapter 46 is the exclusive provision governing the pay of county attorneys who perform district-attorney duties, the opinion concluded the Fayette County attorney does not come within the definition of "prosecutor" in section 46.001 and is not entitled to compensation under section 46.003.

Citations

Statutory authorities:

• Government Code § 24.254 (composition of the 155th Judicial District)
• Government Code § 43.160 (district attorney for the 155th Judicial District)
• Government Code § 45.175 (Fayette County attorney performs district-attorney duties)
• Government Code § 46.001 (definition of "prosecutor")
• Government Code § 46.002; § 46.002(3) (prosecutors and county attorneys subject to Chapter 46)
• Government Code § 46.003; § 46.003(a) (state compensation of prosecutors)
• Government Code ch. 46 (Professional Prosecutors Act)
• Government Code § 311.026(b) (special provision prevails over general)
• Senate Bill 1228, Acts 1985, 69th Leg., ch. 480, § 1 (enacting sections 46.001 and 46.002)
• House Bill 600, Acts 1989, 71st Leg., ch. 811, § 1 (amending section 46.002(3))
• Acts 1989, 71st Leg., ch. 1254, § 2 (General Appropriations Act, district judge compensation)

Source

• Landing page: https://www.texasattorneygeneral.gov/opinions/jim-mattox/jm-1264
• Original PDF: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1990/jm1264.pdf

Original opinion text

Best-effort transcription from a scanned PDF. Minor errors may remain, the linked PDF is authoritative.

THE ATTORNEY GENERAL OF TEXAS

December 19, 1990

Honorable Bob Bullock
Comptroller of Public Accounts
L.B.J. State Office Bldg.
Austin, Texas 78774

Opinion No. JM-1264

Re: Whether the county attorney of Fayette County is entitled to be compensated as a district attorney (RQ-2084)

Dear Mr. Bullock:

You ask whether the county attorney of Fayette County is entitled to be compensated as a district attorney.

Section 24.254 of the Government Code provides that the 155th Judicial District is composed of Austin, Fayette, and Waller Counties. Section 43.160 of the Government Code states that "voters of Austin and Waller Counties elect a district attorney for the 155th Judicial District who represents the state in that district court only in those counties."

Section 45.175 of the Government Code provides that in "Fayette County the county attorney shall perform the duties imposed on and have the powers conferred on district attorneys by general law."

You direct our attention to section 46.001 of the Government Code that provides county attorneys performing the duties of district attorney are "prosecutors" under the Professional Prosecutors Act. See Gov't Code ch. 46. Section 46.003(a) provides that each "prosecutor is entitled to receive from the state compensation equal to 90 percent of the compensation that is provided for a district judge in the General Appropriations Act." Acts 1989, 71st Leg., ch. 1254, § 2, at 5057 (effective September 1, 1989, amended). However, section 46.002 delineates prosecutors subject to this chapter, which is applicable only to prosecutors in counties named in this section. Section 46.002(3) lists those county attorneys performing the duties of district attorney in designated counties as coming within the provisions of this chapter. The county attorney of Fayette County is not listed in subsection (3).

Sections 46.001 and 46.002 were both enacted at the same session of the legislature as part of Senate Bill 1228, Acts 1985, 69th Leg., ch. 480, § 1, at 1969 (effective September 1, 1985). Section 311.026(b) of the Government Code provides that if the conflict between a general provision and a special provision is irreconcilable, the special provision prevails unless the general provision is the later enactment and the manifest intent is that the general provision prevails. In the instant case, subsection (3) of section 46.002 listing county attorneys performing the duties of district attorneys in designated counties as coming within the act is the special provision.

The legislative intent that the provisions of this act apply only to county attorneys of counties listed in subsection (3) of section 46.002 is further evidenced by House Bill 600, Acts 1989, 71st Leg., ch. 811, § 1, at 3676, amending subsection (3) of section 46.002 by adding county attorneys performing the duties of district attorneys in three additional counties. Neither the original nor the amended version of 46.002 lists Fayette County. Furthermore, even though section 45.175 states that the county attorney of Fayette County has "the powers conferred on district attorneys by general law," chapter 46 is the exclusive provision governing the pay of county attorneys who perform the duties of district attorneys. We conclude that the district attorney of Fayette County does not come within the definition of "prosecutor" in section 46.001 so as to be entitled to compensation under section 46.003.

                   SUMMARY

       The county attorney of Fayette County is not entitled to be compensated as a prosecutor under section 46.003 of the Government Code.

                               Very truly yours,

                               JIM MATTOX
                               Attorney General of Texas

MARY KELLER
First Assistant Attorney General

LOU MCCREARY
Executive Assistant Attorney General

JUDGE ZOLLIE STEAKLEY
Special Assistant Attorney General

RENEA HICKS
Special Assistant Attorney General

RICK GILPIN
Chairman, Opinion Committee

Prepared by Tom G. Davis
Assistant Attorney General