Did Cass County have to supplement its criminal district attorney's state salary for civil work normally performed by a county attorney?

Texas AG Opinion JM-319: Prosecutor Salary Supplement

Plain-English summary

Cass County's appointed criminal district attorney asked whether the commissioners court had to supplement his state salary because he performed civil legal work normally handled by a county attorney. Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1985/jm0319.pdf

The local law creating the office required the criminal district attorney to perform both criminal-prosecution duties and the county's civil legal work. The Professional Prosecutors Act governed the office's compensation. Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1985/jm0319.pdf

JM-319 read the Act's statement that a commissioners court “may” supplement the state salary as discretionary. Cass County could therefore refuse a supplement even though the officeholder performed duties normally assigned to a county attorney. Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1985/jm0319.pdf

If the county chose to provide a supplement, however, the Act set a floor: the district attorney could not receive less county compensation than the county provided its highest-paid district judge. Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1985/jm0319.pdf

The request said Cass County's only district judge received $100 per month for juvenile-board service. Relying on an earlier AG opinion that counted juvenile-board pay in this comparison, JM-319 concluded that any supplement in those circumstances had to be at least $100 per month. Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1985/jm0319.pdf

Currency note

This opinion was issued in 1985. 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.

Common questions

Was Cass County required to pay a salary supplement?

No. JM-319 concluded that the Professional Prosecutors Act permitted, but did not require, the commissioners court to supplement the criminal district attorney's state salary. Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1985/jm0319.pdf

Did the civil work create a separate right to compensation?

No. The statute creating the Cass County office made representation of the county part of the criminal district attorney's assigned duties. Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1985/jm0319.pdf

Could the county choose any token amount if it decided to supplement?

No. The opinion said the supplement had to satisfy the statutory comparison with the county compensation paid to the highest-paid district judge. Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1985/jm0319.pdf

Did juvenile-board compensation count in the comparison?

Yes. JM-319 relied on Attorney General Opinion MW-87 (1979), which treated a district judge's juvenile-board supplement as part of the amount used to calculate the prosecutor's minimum supplement. Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1985/jm0319.pdf

What minimum applied to the facts presented?

Because the only Cass County district judge reportedly received $100 per month for juvenile-board service, the opinion concluded that any prosecutor supplement had to be no less than $100 per month. Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1985/jm0319.pdf

Background and statutory framework

Article 326k-32 created the Cass County criminal district attorney's office and combined the criminal and civil responsibilities generally divided between district and county attorneys. Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1985/jm0319.pdf

The Legislature added the office to the Professional Prosecutors Act in 1983. Section 3 set state compensation at 90 percent of district-judge compensation under the General Appropriations Act and authorized county supplementation subject to the district-judge comparison. Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1985/jm0319.pdf

JM-319 treated “may” as discretionary and read section 6 as confirming that local supplementation was not necessary to carry out the Act. Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1985/jm0319.pdf

Citations and references

• V.T.C.S. articles 326k-32, 332b-1, and 332b-4
• Tex. Const., article V, section 21
• Acts 1977, 65th Legislature, chapter 742, section 1, at 1866
• Acts 1983, 68th Legislature, chapter 789, section 1, at 4624
• Attorney General Opinion MW-87 (1979)
• Neal v. Sheppard, 209 S.W.2d 388 (Tex. Civ. App. - Texarkana 1948, writ ref'd)
• Matter of Estate of Minnick, 653 S.W.2d 503 (Tex. Civ. App. - Amarillo 1983, no writ)

Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1985/jm0319.pdf

Source

• Landing page: https://www.texasattorneygeneral.gov/opinions/jim-mattox/jm-0319
• Original PDF: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1985/jm0319.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

May 23, 1985

Honorable Neal E. Birmingham
Cass County District Attorney
P. O. Box 555
Linden, Texas 75563

Opinion No. JM-319

Re: Whether a county is required to contribute to the compensation of a criminal district attorney

Dear Mr. Birmingham:

You inform us that you were appointed to fill an unexpired term of the office of criminal district attorney of Cass County because of the resignation of the elected official. You also inform us that you requested, but were refused, a salary supplement in addition to the salary you receive from the state under article 332b-4, V.T.C.S. [hereinafter the Professional Prosecutors Act], from the Cass County commissioners court. You request the supplement to compensate you for civil work which in this case you performed for Cass County but which is normally performed by a county attorney. In that regard you first ask:

Does the commissioners court have the discretion to refuse [to compensate the criminal district attorney for legal work performed as county attorney]?

The office of Cass County criminal district attorney was created by the legislature in 1955. See V.T.C.S. art. 326k-32, §1. Article 326k-32, section 3, V.T.C.S., reads:

Sec. 3. It shall be the duty of the Criminal District Attorney of Cass County, as herein provided, to be in attendance upon each term and all sessions of the District Court of Cass County and all of the sessions and terms of the inferior courts of Cass County held for the transaction of criminal business, and to exclusively represent the State of Texas in all criminal matters pending before said courts and to represent Cass County in all matters pending before such courts and any other court where Cass County has pending business of any kind, nature or interest and in addition to the specified powers given and the duties imposed upon him by this Act, all such powers, duties and privileges within Cass County as are now by law conferred or which may hereafter be conferred upon the district and county attorneys in the various counties and judicial districts of this State. He shall collect such fees, commissions and perquisites as are now or hereafter may be provided by law for similar services rendered by district and county attorneys of this State.

Thus, the criminal district attorney of Cass County is required to perform duties which are normally performed by both a district attorney and a county attorney. Under the provisions of article 332b-1, V.T.C.S., the commissioners court of Cass County had permissive authority to pay its criminal district attorney any compensation it deemed advisable in addition to the salary paid the criminal district attorney by the state. See Acts 1977, 65th Leg., ch. 742, §1, at 1866. However, in 1983, the legislature amended article 332b-4, section 2, V.T.C.S., the Professional Prosecutors Act, to include the Cass County criminal district attorney in that act. See Acts 1983, 68th Leg., ch. 789, §1, at 4624, eff. June 19, 1983. Section 3 of the Professional Prosecutors Act provides:

Sec. 3. Each district attorney governed by this Act shall receive from the state compensation equal to 90 percent of the compensation that is provided for a district judge in the General Appropriations Act. Each commissioners court may supplement the district attorney's state salary, but shall in no event pay the district attorney an amount less than the compensation it provides its highest paid district judge. (Emphasis added).

V.T.C.S. art. 332b-4, §3. Accordingly, we conclude that the Professional Prosecutors Act is controlling in your situation.

In response to your first question, we believe that the Professional Prosecutors Act authorizes the Cass County commissioners court to refuse to compensate the criminal district attorney for legal work performed as county attorney. Cass County does not have an office of county attorney. The criminal district attorney is required to perform those duties along with his duties as a criminal prosecutor. See V.T.C.S. art. 326k-32, §3; Tex. Const., art. 5, §21; Neal v. Sheppard, 209 S.W.2d 388, 390 (Tex. Civ. App. - Texarkana 1948, writ ref'd).

However, article 332b-4, section 3, V.T.C.S., as quoted above, permits the commissioners court to supplement the district attorney's state salary. We also note that article 332b-4, section 3, V.T.C.S., provides that a commissioners court “may” supplement the district attorney's state salary. That term generally creates a discretionary and not a mandatory function. See Matter of Estate of Minnick, 653 S.W.2d 503 (Tex. Civ. App. - Amarillo 1983, no writ). To construe the term “may” in this context as discretionary would be consistent with section 6, which implies that the local supplementation of the district attorney's salary is not necessary to give effect to the purpose of the statute. V.T.C.S. art. 332b-4, §6. Thus, the Cass County commissioners court may refuse to supplement the salary of the criminal district attorney, even though his duties include civil work normally performed by a county attorney.

You next ask:

Does the commissioners court have the discretion to set any amount, i.e., a dollar a year, or must it pay a realistic amount consistent with the duties performed?

As indicated above, the Professional Prosecutors Act is controlling as to the compensation of the criminal district attorney in Cass County. The only provision in the act establishing a criterion as to the amount of salary supplement the commissioners court may provide the criminal district attorney is found in section 3, which provides in part:

Each commissioners court may supplement the district attorney's state salary, but shall in no event pay the district attorney an amount less than the compensation it provides its highest paid district judge. (Emphasis added).

V.T.C.S. art. 332b-4, §3. Thus, the minimum amount the commissioners court may supplement is set by the amount it determines to supplement the salary of its highest paid district judge.

You inform us that Cass County has only one district judge and that the only supplement by the commissioners court to the judge's state salary is $100.00 per month for serving as a member of the juvenile board. This office has previously held that, in computing a district attorney's supplementary salary, a county must include any supplement it pays district judges for services on the juvenile board. See Attorney General Opinion MW-87 (1979). Therefore, we conclude that, should the Cass County commissioners court decide to supplement the criminal district attorney's state salary under the circumstances you describe in your request, it must provide him not less than $100.00 per month.

SUMMARY

Article 332b-4, section 3, V.T.C.S., does not require a commissioners court to supplement the salary of a criminal district attorney whose duties include legal work normally performed by a county attorney in counties having the official.

Article 332b-4, section 3, V.T.C.S., does require a minimum amount by which a county commissioners court may supplement the state salary of a criminal district attorney.

Very truly yours,

JIM MATTOX
Attorney General of Texas

TOM GREEN
First Assistant Attorney General

DAVID R. RICHARDS
Executive Assistant Attorney General

ROBERT GRAY
Special Assistant Attorney General

RICK GILPIN
Chairman, Opinion Committee

Prepared by Tony Guillory
Assistant Attorney General

APPROVED:
OPINION COMMITTEE

Rick Gilpin, Chairman
Susan Garrison
Tony Guillory
Jim Moellinger
Jennifer Riggs
Nancy Sutton