Can a Texas county use courthouse security funds to buy bullet-proof glass for a district attorney's office in a separate building?

Plain-English summary

The Washington County Attorney asked whether the county could use courthouse security fund money to buy bullet-proof glass for the district attorney's office. The Washington County DA prosecutes felony cases in the 21st and 335th judicial district courts, but her office sits in a stand-alone building across the street from the judges' offices and courtrooms.

The AG started with the statute. The courthouse security fund (Code of Criminal Procedure article 102.017) is built from fees in certain cases and administered by the commissioners court. By statute it "may be used only for security personnel, services, and items related to buildings that house the operations of district, county, or justice courts," and the listed "items" expressly include the purchase or repair of bullet-proof glass. So the spending category fits; the real question was whether the DA's stand-alone building "houses the operations of a district, county, or justice court."

The AG read that phrase narrowly. The dictionary meaning of "operations" is broad (the whole process of planning for and running an organized unit), but the statute's own context cuts it down. Article 102.017(b) says the "operations of a district, county, or justice court" include the activities of associate judges, masters, magistrates, referees, hearing officers, criminal law magistrate court judges, and masters in chancery. If "operations" carried its broad ordinary meaning, the Legislature would not have needed to list those specific appointees. All of them are adjudicators, people whose job is to make formal judgments or decisions about disputed matters. The AG concluded the list signals that "operations of a court" means buildings that house people doing adjudicatory work, so a building with no adjudicators in it likely does not house the operations of a court.

Applying that, the AG explained a district attorney's role is prosecutorial, not adjudicatory: a DA does not hear facts, decide issues of fact and law, or render or execute judgments. So if the building housing the Washington County DA's office has no one doing adjudicatory work in it, a court would likely conclude it does not house the operations of a district, county, or justice court, and the courthouse security fund could not be used for the bullet-proof glass there. In a footnote, the AG disagreed sharply with a Court of Criminal Appeals decision (State v. Stephens) that placed district and county attorneys in the judicial branch, but explained that decision was not ultimately relevant because the Texas Supreme Court, using a functional separation-of-powers analysis, would likely decide the question, and the Supreme Court has treated the district attorney's office as outside the judiciary.

What this means for you

If you administer a county courthouse security fund

Based on this opinion, the test for using the fund on a building is whether the building houses the operations of a district, county, or justice court, and the AG ties that to the presence of adjudicators. A building occupied only by prosecutors, with no judges or the listed adjudicatory appointees, likely falls outside the fund's reach, even for an expressly covered item like bullet-proof glass.

If you run a district attorney's office seeking security upgrades

The courthouse security fund may not be the right source for hardening a stand-alone prosecutor's building that has no adjudicators in it. The opinion does not say security is unimportant; it says this particular fund is limited to buildings that house court operations as the statute defines them.

If you advise a county on the scope of article 102.017

The decisive move is reading "operations" in light of the enumerated adjudicatory appointees in subsection (b), so the controlling factor is whether adjudicators occupy the building, not whether the work done there supports the courts. A district attorney's prosecutorial function does not count as adjudicatory under this reading.

Common questions

Q: Can courthouse security funds pay for bullet-proof glass at all?
A: Yes, for the right building. Article 102.017(c)(11) expressly lists the purchase or repair of bullet-proof glass as a covered item, but only for buildings that house the operations of district, county, or justice courts.

Q: Does a stand-alone district attorney's office qualify?
A: Likely not if it has no adjudicators in it. The AG read "operations of a court" to mean buildings housing people doing adjudicatory work, and a district attorney's role is prosecutorial, not adjudicatory.

Q: Why does it matter who is in the building rather than what the office does for the courts?
A: Because the statute lists adjudicatory appointees as the "operations" of a court. The AG read that to mean the test is whether adjudicators occupy the building, not whether the building's work supports court functions.

Q: Didn't a court say district attorneys are part of the judicial branch?
A: The Court of Criminal Appeals said so in State v. Stephens, but the AG disagreed with that decision and explained the Texas Supreme Court, applying a functional separation-of-powers test, would likely decide this question and has treated the district attorney's office as outside the judiciary.

Background and statutory framework

The courthouse security fund consists of fees assessed in certain criminal and civil cases and is administered by the commissioners court (Code of Criminal Procedure article 102.017(a), (e)). It may be used only for security personnel, services, and items related to buildings that house the operations of district, county, or justice courts (article 102.017(b)), and the covered items expressly include the purchase or repair of bullet-proof glass (article 102.017(c)(11)).

Applying the plain-meaning approach of Maxim Crane Works, L.P. v. Zurich Am. Ins. Co., 642 S.W.3d 551 (Tex. 2022), and Fort Worth Transp. Auth. v. Rodriguez, 547 S.W.3d 830 (Tex. 2018), the AG looked to dictionaries (Tex. State Bd. of Exam'rs of Marriage & Fam. Therapists v. Tex. Med. Ass'n, 511 S.W.3d 28 (Tex. 2017)) but found the broad meaning of "operations" narrowed by context. Subsection 102.017(b)'s list of adjudicatory appointees would be unnecessary under the broad reading, and the phrase must comport with surrounding text (Harris Cnty. Appraisal Dist. v. Tex. Workforce Comm'n, 519 S.W.3d 113 (Tex. 2017); In re Millwork, 631 S.W.3d 706 (Tex. 2021)). Because the listed appointees are adjudicators, the AG read "operations of a court" to require adjudicators in the building. A district attorney's role is prosecutorial (article 2.01; Holmes v. Morales, 924 S.W.2d 920 (Tex. 1996)), not adjudicatory, so a building devoid of adjudicators likely does not house court operations. In a footnote, the AG criticized State v. Stephens, 663 S.W.3d 45 (Tex. Crim. App. 2022), as wrongly placing district and county attorneys in the judicial branch, noting the Texas Supreme Court's functional approach in Brady v. Brooks, 89 S.W. 1052 (Tex. 1905), and Holmes v. Morales.

Citations and references

Statutes:

• Tex. Code Crim. Proc. art. 102.017 — courthouse security fund, covered items, and "operations" of courts
• Tex. Code Crim. Proc. art. 2.01 — district attorney's duty to represent the State in criminal cases
• Tex. Gov't Code § 43.108 — Washington County district attorney's courts

Key cases:

• Holmes v. Morales, 924 S.W.2d 920 (Tex. 1996) — district attorney's office is not part of the judiciary; no judicial power
• Harris Cnty. Appraisal Dist. v. Tex. Workforce Comm'n, 519 S.W.3d 113 (Tex. 2017) — an undefined term is read in harmony with surrounding provisions
• Maxim Crane Works, L.P. v. Zurich Am. Ins. Co., 642 S.W.3d 551 (Tex. 2022) — intent discerned from the plain meaning of the words chosen

Source

• Landing page: https://www.texasattorneygeneral.gov/opinions/ken-paxton/kp-0448
• Original PDF: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/2023/kp-0448.pdf

Original opinion text

KEN PAXTON
ATTORNEY GENERAL OF TEXAS

October 23, 2023

The Honorable Renee Ann Mueller
Washington County Attorney
100 East Main, Suite 200
Brenham, Texas 77833

Opinion No. KP-0448

Re: Whether the District Attorney's Office located in a stand-alone building with no other courts or court offices is a building that houses the operations of a district, county, or justice court for purposes of an expenditure from the courthouse security fund (RQ-0509-KP)

Dear Ms. Mueller:

You ask about the use of monies from the courthouse security fund.¹ You tell us that "Washington County District Attorney Julie Renken requested that the Commissioners Court purchase bullet proof [g]lass to aid in security measures for her office." Request Letter at 1. You explain that "[t]he Washington County District Attorney's office prosecutes felony cases in the 21st and 335th judicial district courts" but is located in a building across the street from the judges' offices and courtrooms. Id. at 2; see also TEX. GOV'T CODE § 43.108 (providing that the Washington County district attorney represents the State in the 21st and 335th judicial district courts). You ask "[w]hether the District Attorney's Office located in a stand-alone building with no other courts or court offices can use the monies in the courthouse security fund for the purchase of bullet proof glass as a building 'that house[s] the operations of a district, county, or justice court.'" Request Letter at 2.

A county commissioners court may use monies from the courthouse security fund to purchase or repair bullet-proof glass related to buildings that house the operations of district, county, or justice courts.

The courthouse security fund is a fund in the county treasury consisting of fees assessed in certain criminal and civil cases. TEX. CODE CRIM. PROC. art. 102.017(a). The county commissioners court administers the fund which "may be used only for security personnel, services, and items related to buildings that house the operations of district, county, or justice courts[.]" Id. art. 102.017(b), (e). The term "security personnel, services, and items" expressly includes "the purchase or repair of bullet-proof glass[.]" Id. art. 102.017(c)(11). Thus, your question requires we consider the meaning of "operations of a district, county, or justice court."

A court would likely conclude that a building does not house the operations of a district, county, or justice court if it is devoid of adjudicators.

When construing a statute, a court's primary objective is to determine the Legislature's intent which, when possible, is discerned from the plain meaning of the words chosen. Maxim Crane Works, L.P. v. Zurich Am. Ins. Co., 642 S.W.3d 551, 557 (Tex. 2022). "Words not statutorily defined bear their common, ordinary meaning unless a more precise definition is apparent from the statutory context or the plain meaning yields an absurd result." Fort Worth Transp. Auth. v. Rodriguez, 547 S.W.3d 830, 838 (Tex. 2018).

The term "operations" is not defined for purposes of article 102.017 and so we look first to the dictionary definition of the term. See Tex. State Bd. of Exam'rs of Marriage & Fam. Therapists v. Tex. Med. Ass'n, 511 S.W.3d 28, 35 (Tex. 2017) (explaining that courts typically look first to a dictionary definition to determine the common meaning of an undefined term). Webster's Dictionary broadly defines "operations" as "the whole process of planning for and operating a business or other organized unit." WEBSTER'S THIRD NEW INT'L DICTIONARY 1581 (1993); see also Sun Operating Ltd. P'ship v. Holt, 984 S.W.2d 277, 285 (Tex. App.—Amarillo 1999, pet. denied) (examining several dictionary definitions and concluding that "the ordinary definition of the word 'operation' connotes an overall process aimed at achieving a particular end"). However, a more limited meaning is apparent from the statute's context.

The phrase "operations of a district, county, or justice court" cannot be read in isolation. See Harris Cnty. Appraisal Dist. v. Tex. Workforce Comm'n, 519 S.W.3d 113, 129 (Tex. 2017) (providing that a court will not "give an undefined statutory term a meaning that is out of harmony or inconsistent with other provisions in the statute"). Subsection 102.017(b) provides that the "operations of a district, county, or justice court include the activities of associate judges, masters, magistrates, referees, hearing officers, criminal law magistrate court judges, and masters in chancery appointed under" specified statutes. TEX. CODE CRIM. PROC. art. 102.017(b). If the Legislature intended the phrase "operations of a district, county, or justice court" to be interpreted according to its common meaning (i.e., encompass a building that houses any actor in the whole process of planning for and operating a district, county, or justice court), its specific enumeration of these seven types of appointees would be unnecessary. Further, the phrase "must be construed in context to comport with the surrounding text." In re Millwork, 631 S.W.3d 706, 712–13 (Tex. 2021). The appointees in subsection 102.017(b) are adjudicators in that it is their job to make formal judgments or decisions about problems or disputed matters. See TEX. CODE CRIM. PROC. art. 102.017(b); see, e.g., NEW OXFORD AMERICAN DICTIONARY 20 (3d ed. 2010) (defining "adjudicator" and "adjudicate"). Thus, the list of appointees indicates that the Legislature intended the phrase "operations of a district, county, or justice court" to refer to buildings that house individuals who engage in activities of an adjudicatory nature. Read in context, a court would likely conclude that a building does not house the operations of a district, county, or justice court if it is devoid of adjudicators.

The activities of a district attorney are not adjudicative in nature in the sense that a district attorney does not act in the role of adjudicator.² Cf. Holmes v. Morales, 924 S.W.2d at 922–23 (recognizing that district attorneys have no power to hear facts, decide issues of fact and law, render judgment, or execute judgments or sentences). Rather, the district attorney's activities are primarily prosecutorial in nature. See TEX. CODE CRIM. PROC. art. 2.01 (providing "[e]ach district attorney shall represent the State in all criminal cases in the district courts of his district and in appeals therefrom, except in cases where he has been, before his election, employed adversely"). If the building encompassing the Washington County District Attorney's office is devoid of individuals who engage in activities of an adjudicatory nature, a court would likely conclude it does not house the operations of a district, county, or justice court.

¹ See Letter from Honorable Renee Ann Mueller, Washington Cnty. Att'y, to Off. of the Tex. Att'y Gen. at 1 (Apr. 28, 2023) ("Request Letter").

² We acknowledge that the Court of Criminal Appeals has concluded that "[t]he offices of county and district attorney . . . are in the judicial branch of government." State v. Stephens, 663 S.W.3d 45, 50 (Tex. Crim. App. 2022). This decision was and remains egregiously incorrect. See Paxton Asks Court of Criminal Appeals to Reverse Its Decision Stripping OAG of Authority to Stop Election Fraud, TEX. ATT'Y GEN. (Jan. 3, 2022). However, Stephens is not ultimately relevant to your request because the Texas Supreme Court, not a criminal appellate court, would likely decide the issue you present for our review, and to the extent the issues in Stephens are relevant here the decision contradicts the Texas Supreme Court's more well-considered precedent. Specifically, the Texas Supreme Court has historically decided on separation-of-powers issues through a functional inquiry of what powers are being exercised consistent with longstanding constitutional interpretation as opposed to which article such power may be found. See Brady v. Brooks, 89 S.W. 1052, 1056 (Tex. 1905); Holmes v. Morales, 924 S.W.2d 920, 923 (Tex. 1996) ("The court of appeals correctly concluded that the district attorney's office is not included in the meaning of 'judiciary' because the Texas Constitution invests no judicial power in that office.").

SUMMARY

Under Code of Criminal Procedure article 102.017(b), a county commissioners court may use monies from the courthouse security fund to purchase or repair bullet-proof glass related to buildings that house the operations of district, county, or justice courts. A court would likely conclude that a building does not house the operations of a district, county, or justice court if it is devoid of adjudicators.

Very truly yours,

KEN PAXTON
Attorney General of Texas

BRENT WEBSTER
First Assistant Attorney General

LESLEY FRENCH
Chief of Staff

D. FORREST BRUMBAUGH
Deputy Attorney General for Legal Counsel

AUSTIN KINGHORN
Chair, Opinion Committee

CHRISTY DRAKE-ADAMS
Assistant Attorney General, Opinion Committee