Does a Texas county attorney who also handles district attorney duties need a separate DA bond?

Plain-English summary

Lee County does not elect a separate district attorney. Instead, the prosecution of all criminal offenses is consolidated into the office of the county attorney, so the elected county attorney and the assistants do the work of both a county attorney and a district attorney while holding only the county attorney title. The Lee County Attorney asked the AG which officeholder bond the law required: a county attorney bond, a district attorney bond, or both. He also asked whether any bond requirement passed through to his assistant prosecutors.

The AG started with the constitutional structure. Article V, section 21 requires a county attorney in every county that has no resident criminal district attorney, and it charges county attorneys with representing the State in all cases in the district and inferior courts of their county unless the county is in a district where a district attorney handles that work. Lee County sits in the 21st Judicial District, but the Legislature created a district attorney for only Washington and Burleson counties in that district, not Lee. So no district attorney exists for Lee County, and the county attorney keeps the full constitutional duty to represent the State in the district courts there. As the AG noted, there is no combined "county and district attorney" office.

On the bond itself, the county attorney executes an official bond payable to the governor in the amount of $2,500. The duties an officeholder must perform are treated as part of the bond, so a bond covers whatever statutory and constitutional duties attach to the office. Because the Legislature kept all of the prosecutorial duties with the Lee County Attorney and delegated none to a district attorney, the county attorney bond already covers all of that work, and the AG concluded a court would likely hold a separate district attorney bond unnecessary. On the assistants, the AG explained that the requirement to post the county attorney's own bond does not "follow" to assistant prosecutors, because the matching-qualifications rule for assistant county attorneys does not include posting an official bond. A separate statute lets a prosecuting attorney require assistant prosecuting attorneys to carry a bond in an amount the prosecuting attorney sets, so the county attorney may impose a bond on assistants at his or her discretion.

Currency note

This opinion was issued in 2017. 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.

What the opinion meant for those who asked

The requesting county attorney (as the opinion described it): The opinion answered that the Lee County Attorney, even while performing both county and district attorney functions, executes only a county attorney bond, and that a separate district attorney bond is unnecessary because the Legislature left all those duties with the county attorney.

Assistant prosecutors (as the opinion described them): The opinion concluded the county attorney's official bond requirement does not pass through to assistant prosecutors automatically, but a prosecuting attorney may require assistants to post a bond in an amount the prosecuting attorney sets.

Commissioners courts (as the opinion described them): The opinion noted the county attorney's $2,500 bond is approved by the commissioners court of the county, so the bond the county attorney files runs through that approval process.

Common questions

Did a Lee County Attorney doing both jobs need two separate bonds?
No. The opinion concluded that because the Legislature assigned no part of the prosecutorial duties to a district attorney and kept them with the county attorney, the single county attorney bond covered the work and a separate district attorney bond was unnecessary.

Is there an actual combined "county and district attorney" office in Texas?
No. The opinion pointed out there is no such combined office; the Lee County prosecutor holds the title of county attorney and exercises the duties the constitution and statutes assign to that office.

Did assistant prosecutors have to post the same bond as the county attorney?
Not automatically. The opinion explained the bond requirement does not follow to assistants, but the county attorney, as a prosecuting attorney, may require assistant prosecuting attorneys to carry a bond in an amount he or she sets.

Why does Lee County have no district attorney of its own?
The opinion explained that although Lee County is in the 21st Judicial District, the Legislature provided for a district attorney elected only by the voters of Washington and Burleson counties, leaving Lee County's district-court prosecution with the county attorney.

Background and statutory framework

Article V, section 21 of the Texas Constitution requires the election of a county attorney in every county without a resident criminal district attorney and charges county attorneys with representing the State in all cases in the district and inferior courts of their county, except where the county is in a district with a district attorney (Tex. Const. art. V, § 21). Lee County is not among the counties whose voters elect a criminal district attorney (Tex. Gov't Code § 44.001). Lee County is in the 21st Judicial District (Tex. Gov't Code § 24.122(a)), but the Legislature provided for a district attorney elected only by Washington and Burleson county voters and charged that district attorney with representing the State in the district court only in those counties (Tex. Gov't Code § 43.108(a)). As a result, the Lee County Attorney represents the State in all matters pending before the district courts in Lee County (Tex. Gov't Code § 45.244), and there is no combined county-and-district-attorney office.

The county attorney executes an official bond payable to the governor in the amount of $2,500, with sureties approved by the commissioners court (Tex. Gov't Code § 45.001(a)). An officeholder's statutory duties are regarded as part of the bond (Am. Indem. Co. v. Yocham, 42 S.W.2d 817 (Tex. Civ. App.—El Paso 1931, writ ref'd); Miller v. State, 53 S.W.2d 792 (Tex. Civ. App.—Amarillo 1932, writ ref'd)). Because the Legislature delegated none of the Lee County Attorney's duties to a district attorney, the county attorney bond covers all those duties and the AG concluded a separate district attorney bond is unnecessary. On assistants, the qualifications for an assistant county attorney match those of the appointing county attorney but, as a prior AG opinion held, do not include posting an official bond (Tex. Gov't Code §§ 45.002, 45.002(a); Tex. Att'y Gen. Op. No. O-3448 (1941)). A separate provision lets a prosecuting attorney, which includes a county attorney, employ assistant prosecuting attorneys and require them to carry a bond in an amount the prosecuting attorney sets (Tex. Gov't Code §§ 41.101, 41.102(a), 41.104).

Citations

Constitutional and statutory provisions:

• Tex. Const. art. V, § 21
• Tex. Gov't Code §§ 44.001, 24.122(a), 43.108(a), 45.244, 45.001(a), 45.002, 45.002(a), 41.101, 41.102(a), 41.104

Texas Attorney General opinions:

• Tex. Att'y Gen. Op. No. O-3448 (1941)

Cases:

• Am. Indem. Co. v. Yocham, 42 S.W.2d 817 (Tex. Civ. App.—El Paso 1931, writ ref'd)
• Miller v. State, 53 S.W.2d 792 (Tex. Civ. App.—Amarillo 1932, writ ref'd)

Source

• Landing page: https://www.texasattorneygeneral.gov/opinions/ken-paxton/kp-0139
• Original PDF: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/2017/kp0139.pdf

Original opinion text

Best-effort transcription from the official PDF. Minor extraction artifacts were corrected; the linked PDF is authoritative.

KEN PAXTON
ATTORNEY GENERAL OF TEXAS

April 17, 2017

The Honorable Martin Placke Opinion No. KP-0139
Lee County Attorney
200 South Main Street, Room 305 Re: The type of bond required for a county
Giddings, Texas 78942 attorney who performs the functions of both a
county and district attorney (RQ-0132-KP)

Dear Mr. Placke:

    You tell us that in Lee County, "the prosecution of all criminal offenses is consolidated into the office of county attorney" and that "[a]s a result, the elected county attorney and his or her assistants serve in the role of both a county and a district attorney." [1] Given that the prosecutor holds only the title of county attorney, you ask which officeholder bond the law requires of that individual: a county attorney bond, a district attorney bond, or both. See Request Letter at 3. You also ask whether the bond requirement would "follow to his or her assistant prosecutors." Id.

    Article V, section 21 of the Texas Constitution requires the election of a county attorney in every county that does not have a resident criminal district attorney. See TEX. CONST. art. V, § 21 (providing that "[a] County Attorney, for counties in which there is not a resident Criminal District Attorney, shall be elected by the qualified voters of each county"). Lee County does not have a resident criminal district attorney. See TEX. GOV'T CODE § 44.001 (omitting Lee County from the list of counties in which voters elect a criminal district attorney). The constitution charges county attorneys with representing "the State in all cases in the District and inferior courts in their respective counties," except where the county is "included in a district in which there shall be a District Attorney." TEX. CONST. art. V, § 21. The provision for a district attorney is discretionary with the Legislature. See id. ("The Legislature may provide for the election of District Attorneys ... as may be deemed necessary ...."). When the Legislature provides for a district attorney, it must allocate the various prosecutorial responsibilities between the district attorney and the county attorney. See id. (providing that "if any county shall be included in a district in which there shall be a District Attorney, the respective duties of District Attorneys and County Attorneys shall in such counties be regulated by the Legislature").

    Lee County is in the 21st Judicial District, which also includes Bastrop, Burleson, and Washington counties. TEX. GOV'T CODE § 24.122(a) (establishing the 21st Judicial District). The Legislature provided for the election of a district attorney in the 21st Judicial District by the voters of only Washington and Burleson counties, charging the elected district attorney with the representation of "the state in that district court only in those counties." Id. § 43.108(a). Thus, in Lee County, no district attorney exists. Instead, the county attorney retains his or her original duty under the constitution to "represent the State in all cases in the District and inferior courts" of Lee County. TEX. CONST. art. V, § 21; see also TEX. GOV'T CODE § 45.244 ("The county attorney of Lee County represents the state in all matters pending before the district courts in Lee County."); 36 David B. Brooks, Texas Practice Series: County & Special District Law § 21.3 (2d ed. 2002) ("There is no such office as a combined 'county and district attorney.'").

    Keeping these duties in mind, we turn to the official bond the county attorney executes, which is "payable to the governor in the amount of $2,500, with at least two good and sufficient sureties to be approved by the commissioners court of the county." TEX. GOV'T CODE § 45.001(a). The duties of an officeholder, as set forth in statute, "are regarded as part of the bond." Am. Indem. Co. v. Yocham, 42 S.W.2d 817, 818 (Tex. Civ. App.—El Paso 1931, writ ref'd); see also Miller v. State, 53 S.W.2d 792, 793 (Tex. Civ. App.—Amarillo 1932, writ ref'd) ("The statute ... upon which such a bond rests and to which it relates becomes a part of the bond to the same extent as though incorporated in the instrument and should be read into it regardless of the intention of the parties."). Because the Legislature delegated no portion of the Lee County Attorney's statutory and constitutional duties to a district attorney and instead kept such duties with the Lee County Attorney, and because the county attorney bond covers all such duties, a court would likely conclude that a separate district attorney bond is unnecessary. Thus, the Lee County Attorney must execute only a county attorney bond.

    Next, we address your question regarding whether this bond requirement "follows" to the assistant prosecutors in your office. See Request Letter at 3. Authority for the appointment of assistant attorneys by the Lee County Attorney derives from two separate sections of the Government Code. First, section 45.002 of the Government Code provides for the appointment of assistant county attorneys. See TEX. GOV'T CODE § 45.002. "The qualifications for an assistant county attorney are the same as for the county attorney who appoints him." Id. § 45.002(a). However, this office previously determined that the "qualifications" to which this provision refers do not include the posting of an official bond. Tex. Att'y Gen. Op. No. O-3448 (1941) at 3 (discussing predecessor statute). Second, subsection 41.102(a) of the Government Code authorizes a prosecuting attorney to employ assistant prosecuting attorneys. TEX. GOV'T CODE § 41.102(a); see also id. § 41.101 (defining "prosecuting attorney" to include a county attorney for purposes of Government Code chapter 41, subchapter B). "A prosecuting attorney may require his assistant prosecuting attorneys ... to have a bond in the amount that the prosecuting attorney sets." Id. § 41.104. Thus a court would likely conclude that while the official bond required of the county attorney does not follow to his or her assistant prosecutors, the county attorney may require his or her assistant prosecutors to post a bond at his or her discretion.

                                  SUMMARY

                  The Legislature delegated no portion of the Lee County Attorney's statutory and constitutional duties to a district attorney and instead kept such duties with the Lee County Attorney. Because the county attorney bond covers all such duties, a court would likely conclude that a separate district attorney bond is unnecessary. Thus, the Lee County Attorney must execute only a county attorney bond.

                  A court would likely conclude that while the official bond required of the county attorney does not follow to his or her assistant prosecutors, the county attorney may require his or her assistant prosecutors to post a bond at his or her discretion.

                                         Very truly yours,

                                         KEN PAXTON
                                         Attorney General of Texas

JEFFREY C. MATEER
First Assistant Attorney General

BRANTLEY STARR
Deputy First Assistant Attorney General

VIRGINIA K. HOELSCHER
Chair, Opinion Committee

BECKY P. CASARES
Assistant Attorney General, Opinion Committee

[1] See Letter from Honorable Martin Placke, Lee Cty. Att'y, to Honorable Ken Paxton, Tex. Att'y Gen. at 1-2 (Sept. 30, 2016), https://www.texasattorneygeneral.gov/opinion/requests-for-opinion-rqs ("Request Letter").