Untitled Texas Attorney General Opinion ( 2005 )

ATTORNEY GENERAL OF TEXAS
GREG ABBOTT
March 2 1.2005
The Honorable Micheal B. Murray Opinion No. GA-03 12
35th Judicial District Attorney
200 South Broadway, Courthouse Re: Whether service as an assistant prosecutor
Brownwood, Texas 76801 employed by the district attorney of another state
qualities as service credit for longevity pay under
Government Code section41.252(a) (RQ-0275-GA)
Dear Mr. Murray:
You ask for an interpretation of Government Code chapter 41, subchapter D, which provides
for longevity pay for assistant prosecutors. ’ You wish to know whether an individual who was
employed as assistant prosecutor by a district attorney of another state could qualify for longevity
pay under Texas law based on the individual’s years of employment with the other state. Request
Letter, supra note 1, at 1; Telephone Conversation with Perry Sims, Assistant District Attorney, 35th
Judicial District (Mar. 15, 2005).
Government Code chapter 41, subchapter D provides longevity pay for assistant prosecutors.
TEX. GOV’T CODE ANN. $5 41.251-,258 (Vernon 2004). “In the State of Texas there are
approximately 1,600 assistant district attorneys, assistant criminal district attorneys, and assistant
county and district attorneys,” many with more than four years experience in prosecution. HOUSE
COMM. ON JUDICIAL AFFAIRS, BILL ANALYSIS, Tex. H.B. 17877th Leg., R.S. (2001) (Background
and Purpose). The salaries of assistant prosecutors have not kept pace with private sector salaries
for experienced attorneys. See id. The longevity pay is funded from a $15 cost paid by each surety
posting a bail bond for an offense other than a misdemeanor punishable by a tine only. See TEX.
GOV’T CODE ANN. 4 41.258 (Vernon 2004). A certain proportion of these costs is deposited in the
“felony prosecutor supplement fund . created in the state treasury,” from which the comptroller
pays the supplements to the counties. Id. 9 41.258(a), (i)-(j).
The county in which the assistant prosecutor is employed “shall pay a longevity pay
supplement to the extent the county receives funds from the comptroller.” Id. 5 41.255(a), (d).
See id. 5 41.255(f) (county is not required to pay longevity supplements if county does not receive
funds from the comptroller). An assistant prosecutor for purposes of the longevity pay provisions
‘Letter from Honorable Micheal B. Murray, 35thJudicialDistrictAttorney, to Honorable Greg Abbott, Texas
Attorney General (Sept. 17, 2004) (on tile with Opinion Committee, also available af http://www.oag.state.tx.us)
[hereinafterRequest Letter].
The Honorable Micheal B. Murray - Page 2 (GA-03 12)
is “an assistant district attorney, an assistant criminal district attorney, or an assistant county attorney
to a county attorney compensated by the state to perform the duties of a district attorney.” Id.
5 41.251( 1). An assistant prosecutor is entitled to longevity pay if he:
(1) is a full-time employee on the last day of a state fiscal
quarter;
(2) is not on leave without pay on the last day of a state fiscal
quarter; and
(3) has accrued at least four years of lifetime service credit
not later than the last day of the month preceding the last month of a
state fiscal quarter.
Id. 5 41.252(a). “An assistant prosecutor accrues lifetime service credit for the period in which
the assistant prosecutor serves as a full-time, part-time, or temporary assistant prosecutor.” Id.
5 41.257(a). He does not accrue lifetime service credit for a month in which he is on leave without
pay. See id. 5 41.257(b). See also id. 5 41.257(c) ( assistant prosecutor who simultaneously holds
two or more positions may accrue lifetime service credit in only one position). An assistant
prosecutor receives longevity pay of $20 per month for each year of lifetime service credit, unless
the county does not receive funds from the comptroller for that purpose. See id. 4s 41.253(a),
.255(d), (Q
You ask whether an individual who was employed as assistant prosecutor by a district
attorney of a state other than Texas could qualify for longevity pay based on his years of service for
the other state. See Request Letter, supva note 1, at 1. You point out that Attorney General Opinion
JC-0473 (2002), which addressed subchapter D, states that “[t]he only express restrictions on the
accrual of lifetime service credit to be found in subchapter D” are those set out in sections 41.257(b)
and (c), and that nothing in the analysis of subchapter D “suggests a distinction based either upon
the continuity of that experience or the locale in which it was gained.” Tex. Att’y Gen. Op. No.
X-0473 (2002) at 2-3. See Request Letter, supra note 1, at 1. These statements must be read in
context. See Tex. Att’y Gen. Op. Nos. GA-0021 (2003) at 7, K-0443 (2001) at 3. Attorney General
Opinion JC-0473 addressed the following questions: (1) whether lifetime service credit may be
earned only during a period of continuous employment, and (2) whether Harris County must include
lifetime service credit earned in another county in computing longevity pay owed to a Harris County
assistant prosecutor. See Tex. Att’y Gen. Op. No. JC-0473 (2002) at 1. That opinion did not
consider whether subsection D requires a Texas county to include service while employed by a
district attorney of a state other than Texas in computing longevity pay owed an assistant prosecutor.
Thus, the statements you quote from Attorney General Opinion JC-0473 do not answer your
question.
We address the novel question of law you raise: whether section 41.257(a) provides that an
assistant prosecutor accrues lifetime service credit for the time in which he serves as “a full-time,
part-time, or temporary assistant prosecutor” while employed by a district attorney of a state other
The Honorable Micheal B. Murray - Page 3 (GA-03 12)
than Texas, See TEX. GOV’T CODE ANN. 3 41.257(a) (Vernon 2004). Our primary objective in
construing a statute is to determine and give effect to the legislature’s intent. See Nat ‘1Liab. &Fire
Ins. Co. v. Allen, 15 S.W.3d 525, 527 (Tex. 2000). We start by looking at the plain and common
meaning of the statute’s words, viewing its terms in context and giving them full effect. See TEX.
GOV’T CODE ANN. 5 3 11 ,011 (a) (Vernon 2005); Liberty Mu?. Ins. Co. v. Garrison Contractors, Znc.,
966 S.W.2d 482,484 (Tex. 1998). Words that have acquired a technical or particular meaning by
legislative definition shall be construed accordingly. See TEX. GOV’T CODE ANN. 5 311 .Ol l(b)
(Vernon 2005).
The legislature has defined “assistant prosecutor” for purposes of the longevity pay
provisions as (1) “an assistant district attorney,” (2) “an assistant criminal district attorney,” or (3)
“an assistant county attorney to a county attorney compensated by the state to perform the duties of
a district attorney.” Id. 3 41.25 l( 1) (Vernon 2004) (emphasis added). These officials are necessarily
assistant prosecutors employed by a Texas district attorney or other Texas prosecutor because the
Texas Legislature has no authority to provide longevity pay to prosecutors employed by other states.
See TEX. CONST. art. III, 5 1 (vesting the legislative power “of this State” in the “Legislature of the
State of Texas”); Am. Nat’1 Ins. Co. v. Coates, 246 S.W. 356, 359 (Tex. Comm’n App. 1923,
judgm’t adopted) (each state of the union has the power to legislate for itself). See also HOUSE
COMM. ON JUDICIAL AFFAIRS, BILL ANALYSIS, Tex. H.B. 178, 77th Leg., R.S. (2001) (there are
approximately 1,600 assistant prosecutors in Texas).
A phrase in the legislative definition of “assistant prosecutor” is particularly relevant to our
conclusion that an “assistant prosecutor” is an assistant prosecutor employed by a Texas district
attorney or other prosecutor. The definition refers to “a county attorney compensated by the state
to perform the duties of a district attorney.” TEX. GOV’T CODE ANN. 5 41.251(l) (Vernon 2004).
The “state” is the State of Texas, which compensates the county attorney of certain Texas counties
for performing the duties of a district attorney. See id. 5 45.175 (Fayette County); $45.280 (Oldham
County). See also General Appropriations Act, 78th Leg., R.S., ch. 1330, art. IV-22,2003 Tex. Gen.
Laws 5023, 5569-70 (Strategy B.) (prosecutor salaries and payments).
Section 41.251(l), as we have construed this provision, defines the term “assistant
prosecutor” used in the section 41.257(a) provision on accruing lifetime service credit. See TEX.
GOV’T CODE ANN. 5 3 11 .Ol 1(a) (Vernon 2005). Section 41.257(a) thus authorizes the accrual of
lifetime service credit for service as aTexas assistant prosecutor. See id. $41.257(a) (Vernon 2004).
An assistant prosecutor accrues lifetime service credit under section 41.257(a) for the period in
which he is employed as an assistant prosecutor by a Texas prosecutor and does not accrue such
credits for employment as a felony prosecutor employed by the district attorney of another state.
The Honorable Micheal B. Murray - Page 4 (GA-0312)
SUMMARY
Government Code chapter 41, subchapter D provides for
longevitypayfor Texas assistant prosecutors. An assistant prosecutor
does not receive lifetime service credits toward longevity pay for a
period in which he is employed as a felony prosecutor by a district
attorney’s office in another state.
Very truly yours,
BARRY R. MCBEE
First Assistant Attorney General
DON R. WJLLETT
Deputy Attorney General for Legal Counsel
NANCY S. FULLER
Chair, Opinion Committee
Susan L. Garrison
Assistant Attorney General, Opinion Committee