How was Tyler County required to fund a criminal district attorney's office created after the Professional Prosecutors Act's 1979 funding date?

Texas AG Opinion JM-628: Tyler County Prosecutor Funding

Plain-English summary

Tyler County's criminal district attorney asked which budget figure controlled the county's minimum funding duty under the Professional Prosecutors Act. The office was created after the Act's August 27, 1979 reference date, so there was no office budget from that date to use as a statutory floor.

JM-628 concluded that the county could not substitute the office's later 1983 funding level for the statute's 1979 date. Instead, the commissioners court had to apply the other command in Government Code section 46.006(b) and provide "the funds necessary to carry out the purpose" of the Act.

The opinion's summary stated that because the minimum amount "cannot be determined as of 1979," the minimum was "simply the amount 'necessary to carry out the purpose' of the Professional Prosecutors Act." Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1987/jm0628.pdf

Currency note

This opinion was issued in 1987. 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

Did Tyler County have to fund the office at its September 1, 1983 level?

No. The opinion rejected September 1, 1983 as the controlling date. It concluded that the statutory reference was to August 27, 1979, the effective date of the Professional Prosecutors Act. Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1987/jm0628.pdf

Why could the 1979 funding floor not be applied directly?

The opinion stated that August 27, 1979 was "a time prior to the creation of the office of criminal district attorney for Tyler County." There was therefore no funding amount for that office on the statutory date. Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1987/jm0628.pdf

What funding standard did JM-628 use instead?

It relied on section 46.006(b)'s instruction that the commissioners court "shall provide the funds necessary to carry out the purpose of this chapter." Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1987/jm0628.pdf

Background and statutory framework

Section 46.006(b) required each commissioners court with a covered prosecutor to provide the funds needed to carry out the chapter and to maintain office funding at or above the amount provided on August 27, 1979. The provision excluded local supplementation of the prosecutor's salary from that maintenance rule.

Tyler County's criminal district attorney office became effective on January 1, 1983. JM-628 therefore treated the historical funding-floor clause as inapplicable to an office that did not exist on August 27, 1979, while applying the separate necessary-funds clause. Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1987/jm0628.pdf

Citations and references

Statutes:

• Texas Government Code section 46.006
• Former V.T.C.S. article 332b-4, section 6
• Acts 1979, 66th Legislature, chapter 705, at 1709
• Acts 1985, 69th Legislature, chapter 480, section 26(1), at 2048

Source

• Landing page: https://www.texasattorneygeneral.gov/opinions/jim-mattox/jm-0628
• Original PDF: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1987/jm0628.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

January 20, 1987

Honorable Patrick O. Hardy
Criminal District Attorney
Room 201, Courthouse
Woodville, Texas 75979

Opinion No. JM-628

Re: Applicability of the Professional Prosecutors Act to funding for the criminal district attorney of Tyler County

Dear Mr. Hardy:

Your inquiry is directed to the applicability of Attorney General Opinion JM-428 (1986) in determining funding for the criminal district attorney of Tyler County under the Professional Prosecutors Act.

In Attorney General Opinion JM-428 we noted that section 46.006 of the Government Code, the Professional Prosecutors Act, provides:

(b) The commissioners court in each county that has a prosecutor subject to this chapter shall provide the funds necessary to carry out the purpose of this chapter and shall continue to provide funds for the office of the prosecutor in an amount that is equal to or greater than the amount of funds provided for the office by the county on August 27, 1979. This subsection does not apply to local supplementation to the salary of the prosecutor.

The office of criminal district attorney for Tyler County was created effective January 1, 1983, by Acts 1983, 68th Leg., ch. 979, §1, at 5324. You suggest that September 1, 1983, the effective date of the act under which the office of criminal district attorney for Tyler County was created, is the date the office became subject to the provisions of the Professional Prosecutors Act. You conclude that the commissioners court of Tyler County is required to fund your office in an amount that is equal to or greater than the amount of funds it provided the office on September 1, 1983. You premise your opinion on language found in former article 332b-4, section 6, V.T.C.S. (now section 46.006 of the Government Code, the Professional Prosecutors Act) directing that a commissioners court shall provide funds that are equal to or greater than the amount of funds provided the office on the effective date of this act.

The Professional Prosecutors Act was created, effective August 27, 1979, by Acts 1979, 66th Leg., ch. 705, at 1709. We are of the opinion that this is the date referred to in former article 332b-4, section 6. Upon the nonsubstantive repeal of article 332b-4, section 6 (Acts 1985, 69th Leg., ch. 480, §26(1), at 2048), it was codified as section 46.006(b) of the Government Code, Professional Prosecutors Act. Acts 1985, 69th Leg., ch. 480, at 1969. The date of August 27, 1979 referred to therein is a time prior to the creation of the office of criminal district attorney for Tyler County by the Professional Prosecutors Act. It follows that the minimum amount of funding for your office by the commissioners court cannot come within the provision of section 46.006(b) of the Government Code, the Professional Prosecutors Act. Section 46.006(b), however, also provides that the commissioners court "shall provide the funds necessary to carry out the purpose of this chapter."

SUMMARY

The office of criminal district attorney of Tyler County is subject to section 46.006(b) of the Government Code, the Professional Prosecutors Act. Because the minimum amount the county must provide to fund the office of criminal district attorney of Tyler County cannot be determined as of 1979, however, the minimum amount is simply the amount "necessary to carry out the purpose" of the Professional Prosecutors Act.

JIM MATTOX
Attorney General of Texas

JACK HIGHTOWER
First Assistant Attorney General

MARY KELLER
Executive Assistant Attorney General

RICK GILPIN
Chairman, Opinion Committee

Prepared by Tom G. Davis
Assistant Attorney General