Untitled Texas Attorney General Opinion ( 1985 )

The Attorne,y General of Texas
May 1, 1985
JIM MATTOX
Attorney General
Supreme Cowl Building Honorable Oscar H. Ilsuzy Opinion No. JM-313
P. 0. Box 12548 Chairman
Aus!in. TX. 70711.2348 Committee on Jurisprudence Re: Use of the “bad check fund”
512,4752501 Texas State Senote under article 53.08 of the Code
Telex 9101074-1367
Telecopier 512/4754266
P. 0. Box 12068, Capi.tol Station of Criminal Procedure by a dis-
Austin, Texas 78711 trict attorney, county attorney,
or criminal district attorney
714 Jackson, Suite 700
Dallas, TX. 75202.4506
Dear Senator Mausy:
2141742.8944
Article 53.08 of the Code of Criminal Procedure authorizes the
4824 Alberta Ave.. Suite 160 county attorney, d:lstrict attorney, or criminal district attorney
El Paso. 7X. 79905-2793 [hereinafter attorney] to collect fees from persons who have passed
91515333404 “bad checks” and est.a.blishes a special fund in the county treasury in
which the fees must be deposited. Under article 53.08, the fund is
’ Texas. Suite 700 administered by the attorney rather than by the county commissioners
I, ,ton, TX. 77002CNll court. You ask r;everal questions about the propriety of the
713/223-5886 attorney’s making specific types of expenditures from the fund. Most
of the disbursemen,:s about which you inquire relate to specific
expenses of the prmecutor’s office, including payment for office
006 Broadway. Suits 312
Lubbock. TX. 79401.3479
supplies and equipment, for the salaries of various employees, and for
0061747.5238 certain “bonus” expc!nse allowances and salary supplements, You also
ask generally wheth’zc the attorney must obtain the approval of the
commissioners court prior to making expenditures from the fund. Both
4309 N. TsnIh. Suite S
this general question and your specific questions, however, depend
McAllen. TX. 78501.1685
5121682-4547 upon the scope of the statutory authority granted to the attorney by
article 53.08. Accordingly, a basic explanation of the provision must
precede our response ‘to your specific questions.
200 Main Plaza. Suite 400
Son Antonio. TX. 78205-2797
Article 53.08 p,rovides, in part:
512m5.4191
(e) Fetzs collected under this article shall be
An Equal OpportunitYl deposited :in the county treasury in a special fund
Allirmative Action Employer to be a6$nistered by the county attorney.
district at’torney, or criminal district attorney.
Expenditur@ from this fund shall be at the sole
discretion of the attorney, and msy be used only
to defrfy ?he salaries and expenses of the pro-
secutor s l>.ffice, but in no event may the county
attorney, &trict attorney, or criminal district
attorney sceplement his or her own salary from
this fund. Nothing in this Act shall be construed
p. 1427
Honorable Oscar Ii. Hauty - Page 2 (JM-313)
to decrease the ,cotal salaries, expenses, and
allowances which a prosecuting attorney’s office
is receiving at the time this Act takes effect.
(Emphasis added).
TWO aspects of this section are relevant to your inquiry: the
creation of a special fund and the grant of expenditure power to the
attorney.
Several prior opinions of this office dealt with article 53.08.
See Attorney General Opinior,s W-584, IN-439 (1982); MU-241, IN-188
-00,. Controversies over interpretation of the act stemmed from
article 53.08’s directive thzlt: the fund is “to be administered by the
county attorney, district attorney , or criminal district attorney” and
that “[elxpenditures from thI,s fund shall be at the sole discretion of
the attorney. . . .” Ordinnrily, expenditures of county funds are
controlled by the county commissioners court. In question 18, you ask
whether the attorney must obtain the approval of the commissioners
court before making expenditures from the fund. Three prior opinions
of this office provide neclessary background information and are
significant to the scope of the attorney’s authority over the fund.
Attorney General Opini~,n MW-188 (1980) concluded that county
auditors may prescribe accounting and control procedures for all fees
collected pursuant to artic1.e 53.08 despite the fact that the fees
were properly to be deposl.t,ed in a special fund in the county
treasury. The opinion found
no conflict between the district attorney’s
limited statutory discretion to determine the
purpose for which zxpenditures from the fund are
to be made and th; auditor’s statutory pover to
prescribe accounting and control procedures for
making deposits ;uld disbursements. (Emphasis
added).
Thus, the attorney has “limi,:ed statutory discretion” over the nature
of expenditures from the fund.
Some confusion may have arisen from the language in Attorney
General Opinion MW-439 (1982). The opinion concluded that the
statutes which require compns R-908 (1976); R-656 (1975). The
employees of all three types of prosecuting attorneys fall under the
provisions of article 332a, V.T.C.S. See Attorney General Opinions
H-922 (1977); E-908 (1976). Attorney General Opinion H-908 reasoned
that article 332a is a more s;?ecific statute which was enacted later
in time than article 3912k.
Article 332a. in section :5, provides:
Salaries of asc;l.stant prosecuting attorneys,
investiaators. secretaries and -
other off&
person& shall te fixed by the prosecuting
attorney, subject ?o the approval of the com-
missioners court of the county or the counties
composing the district. (Emphasis added).
Thus, in response to part of question 2, the existence of any “salary
schedule” depends upon the salaries set by the various attorneys’
offices. Because the attorns,y’s power in article 332a is “subject to
the approval of the commissioners court,” some clarification of our
response to question number 16 is necessary.
As indicated, article 332a addresses various que’stions relating
to personnel matters and to other expenses of the attorney’s office.
Sections 5 and 6 of the act deal with salaries and travel expenses,
respectively, and each section expressly requires the “approval” of
the commissioners court. In contrast, article 53.08 of the code
places expenditures from the fund within the “sole discretion” of the
prosecuting attorney. Article 332a was enacted in 1973, see Acts
1973. 63rd Leg., ch. 127, at 275, whereas article 53.08 wasadded to
the Code of Criminal Procedure in 1979. See Acts 1979, 66th Leg., ch.
734. 51. at 1802. Therefoc’e. article53.08, as the more recent
expression of the legislature’s intent , supersedes article 332a to the
Honorable Oscar H. Hauty - Page 9 (JM-313)
extent of conflict, &, with regard to expenditures from the special
fund. To the extent that sa:Lary increases and office expenses may be
paid from the special furd, the attorney need not obtain the
commissioners court’s approval.
Neither article 53.08 r,or article 332a. however, addresses the
question of salary supplements or bonuses. Clarification of the
distinction between salary “increases” and salary “supplements” 16
necessary st this point. We assume that by “supplements” you mean
payments for work that has already been performed by an employee. The
two differ. See generally Attorney General Opinion MW-459 (1982).
Salary increases are within the discretion of the prosecuting attorney
by virtue of section 5 of article 332a. Although the provision
requires the “approval of the commissioners court ,I’ see Attorney
General Opinions H-908 and H.-922, to the extent that salary increases
may be paid from the specl.al fund, the attorney need not obtain
commissioners court approval. The commissioners court may not.
however, reduce the amount already authorized for salaries in order to
counteract, and thus interf e,ce, with the attorney’s “sole discretion”
over the fund. See Attorney General Opinion H-922 (1977); see also
Code Grim. Pro=‘;-art . 53.1:3(e) (“Nothing in this Act shall be
construed to decrease the total salaries . . . which a prosecuting
attorney’s office is receivirg at the time this Act takes effect.“).
Nevertheless, salary increases or supplements cannot be
retroactive. Article III, section 53 of the Texas Constitution
provides, in part:
The Legislature ,shall have no power to grant,
or to authorize an;r county or municipal authority
to grant, any extra, compensation, fee or allowance
to a public officer, agent, servant or contractor,
after’service has teen rendered, or a contract has
been entered into, and performed in whole or in
part. . . .
See also Tex. Const. art. III, 044. Section 53 prohibits the retro-
active payment of salary bonuses, supplements, or other salary
increases by political subdivisions. Fsusett ‘I. King, 470 S.W.2d 770
(Tex. Civ. App. - El Paso 1971, no writ); Pierson v. Galveston County,
131 S.W.2d 27 (Tex. Civ. A,pp. - Austin 1939, no writ); Attorney
General Opinion H-11 (1973). Even if district attorneys, county
attorneys, and criminal dizrtrict attorneys are not themselves a
“county or municipal authority” for purposes of article III, section
53, the special fund created by article 53.08 is clearly comprised by
county funds. See Attorney Ganeral Opinion MW-584 (1982). Thus, the
attorney administering the special fund may not grant extra compensa-
tion, fees or allowances to ;u\ employee after the employee’s servlces
have been rendered.
p. 1435
Honorable Oscar H. Hausy - Page 10 (JM-313)
In sum, with regard to questions 1, 2. and 4, the payment of
salary supplements to employeoa of the prosecuting attorney’s office
is distinct from the payment of salaries. Although salary increases
or supplements are authorized, payments, by whatever name, which
compensate for past work performed by an employee of the office, are
prohibited by the Texas Constit,ution.
III. Payment of “in kind” bonuses. In questions 5, 7, 13, 14,
and 15, you ask about expecaitures from the fund to pay various
allowances and expenses to or for the employees of the attorney’s
office. The preceding discussion about the constitutional prohibition
against the payment of extra compensation to public employees after
services have been rendered also applies to “bonuses” which are not
directly related to salaries but which are intended or function as
added compensation. For examI#le. in question 5 you ask about parking
allowances. Paid parking may be a legitimate part of compensation,
but when cash “parking allowances” are given directly to employees as
a bonus after the employees’ services have been rendered, the payments
subvert the purpose of article III. section 53. Some of the
allowances about which you ir.q,uire appear to be added compensation;
others fall within the category of reimbursement for expenses properly
chargeable against the county.
In general, payments of allowances and expenses for public
employees must reasonably relz,t,e to the performance of the employee’s
official duties. See Attorney General Opinions MW-116 (1979); E-1164
(1978); H-152, 8-m (1973); W-978 (1971). Article 53.08, in sub-
section (e), authorizes the attorney to make expenditures from the
fund only for “salaries and texpenses of the prosecutor’s office.”
Moreover, article III. section 52 of the Texas Constitution expressly
prohibits the use by a politi,cal subdivision of its public funds or
credit for private purposes. State v. City of Austin, 331 S.W.2d 737
(Tex. 1960) ; Attorney General-Opinion JM-220 (1984). An incidental
private benefit from the expenditure of public funds for a public
purpose is not prohibited. E,arrington v. Cokinos, 338 S.W.2d 133
(Tex. 1960); Attorney General opinions JM-220 (1984); PM-251 (1980).
In question 5 you arik about “automobile and/or parking
allowances.” As indicated, parking for employees when they come to
work may be a legitimate perquisite of employment. It is not,
however, an expense incurred in the performance of the employee’s
official duty. On the other hand, if the employee’s official duties
require travel, an “automobile allowance” may be an expense of
performing official duties. A,rticle 332a. la section 6, provides:
Assistant prosecuting attorneys and lnvestiga-
LOTS, in addition to their salaries, may be
allowed actual anti necessary travel expenses
incurred in the discharge of their duties, not to
exceed the amount- fixed by the prosecuting
p. 1436
Honorable Oscar H. Mauzy - PaI;e 11 (~~-313)
attorney and apprcved by the commissioners COUKt
of the county 0,: the counties composing the
district. All claims for travel expenses may be
naid from the General Fund, Officers’ Salary Fund,
or any other av$.lable -funds of the county.
(Emphasis added).
As discussed previously. article 53.08 of the code replaced. to the
extent of conflict, the provisions in article 332a which require
commissioners court approval. To the extent that legitimate expenses
may be paid from the fund, the attorney need not obtain comnnissioners
court approval.
BY “automobile allowance ,” we assume that you refer to a set
amount of money paid at clz::taln intervals to defray the cost of
operating a privately-owned automobile which is used in the conduct of
the employee’s official duties. See Attorney General Opinions H-992
(1977); H-152 (1973). If the z of the employee’6 vehicle is
necessary to the actual performance of the employee’s official duties,
section 6 of article 332a tuthorizes the payment to assistant pro-
secuting attorneys and investigators of “actual and necessary travel
expenses incurred in the dis-harge of their duties.” Nevertheless, a
flat rate automobile allowance which bears no relation to the number
of miles actually driven on oEficia1 business is not authorized. -See
Attorney General Opinion H-152 (1973).
Question 13 refers to tl,e payment of State Bar dues for assistant
prosecutors. In Attorney General Opinion MN-251 (1980), this office
determined that a state agency may spend public funds to pay the
notary license fees of its employees who provide notary public
services as part of their duties. This did not constitute an uncon-
stitutional grant of public funds for s private purpose because the
expenditure was directly and substantially related to the performance
of the agency’s governmental function. Although the payment of bar
dues by assistant prosecutors may be necessary to the performance of
the assistant’s duties, it is an expense related to the individual’s
profession rather than an “office expense.” A distinction must be
made between the minimum qualifications for public employment and
additional training and/or specialization for. additional duties.
Accordingly, the attorney may decide to pay the State Bar dues of
assistant prosecuting attorneys only as additional compensation, and
not as an expense of the office.
Opinions MN-276, MN-156 (1980) ; H-1042 =i55f+2&t7;;;) ;=:ef;;:
(1966) ; C-506 (1965).
The same constitutional principles apply to the expenditures you
inquire about in questions 7, 14, and 15. Question 7 refers to
expenditures from the fund to pay the expenses of assistant pro-
secutors who attend continuing legal education programs. Such
expenditures .are authorized :lnoofar as the programs are directly and
p. 1437
Honorable Oscar H. Msuzy - Pagl? 12 (JM-313)
substantially related to the performance of the office’s governmental
functions. See Brazoria Count 537 S.W.Zd 89 (Tex. Civ.
APP, - Houstz[lst Diet.] 19716, * writ , Attorney General Opinions
no
-=-=Y’
MW-251 (1980); H-1164, H-1133 (1978). As indicated previously,
expenditures must relate to t‘ie duties of the prosecuting office but
are not limited to the specific prosecuting and collection functions
covered by article 53.08. I:> addition, when expenditures are made
which involve potentially substantial incidental private benefits,
article III, section 52 requires that conditions be attached to the
expenditure to assure the use of public money for a public purpose.
Attorney General Opinion JM-2X (1984); see Attorney General Opinions
JM-103 (1983); MW-423 (1982); MU-60 (1979). For example, the Brazorla
County v. Perry case dealt with a deputy sheriff who attended a law
enforcement officer’s training program at county expense. The deputy
sheriff agreed to reimburse the county for the expense of the program
if he did not remain in the enploy of the sheriff’s department for at
least two years after completing the training program.
In question 14 you ask whether the attorney may make expenditures
from the fund to pay the co:l:tege tuition of his secretary. It is
conceivable that certain coll”8e courses and training programs may be
directly and substantially rel,ated to the performance of the part of
the office’s governmental functions which the secretary performs. The
payment of college tuition, however, for the general education of the
secretary is not authorized. On the other hand, if the college
tuition is limited to cours,es which train the secretary for a
different position or additi,onal duties which are part of the
performance of the office’s governmental function, the expenditure
appears legitimate. The Tex;as Constitution, however, requires that
the office attach contractual c.onditions to the expenditure which will
assure that the office will rc:c.eive the full value of the expenditure,
including the value of the expenditure as a “loan” to the secretary.
In question 15, you refer to “management retreats” on dude
ranches in the Texas hill cowtry. It is conceivable that a legiti-
mate training or continuing Yegal education program could be located
in the Texas hill country. Nevertheless, if by “retreat” you do not
refer to a formal training or education program, but rather an
occasion merely to increase the morale and productivity of the
attorney’s office, it may be nothing more than a private vacation at
public expense. As such, it Eunctions as and is subject to the legal
limits mentioned above which are applicable to additional compensa-
tion. It must be a pre-established part of the employee’s compensa-
tion.
In question 8 you inquire about the “federal, state, or local
income” tax ramifications of t,hese “in kind” benefits. There is, of
course, no state or local inccome tax in Texas. Questions about the
federal income tax consequence of the receipt by individual employees
of "in kind" bonuses should be addressed to the Internal Revenue
p. 1438
.
Honorable Oscar H. Mauzy - Page 13 (JM-313)
Service. We note, however, c:hat for some purposes, Texas law draws a
distinction between expenses and compensation. See Attorney General
Opinions JM-39 (1983); NW-391 (1981); -cf. MW-334 (1981).
IV. Expenditures for equipment and supplies. In questions 6,
11. and 12 YOU ask about the propriety of making exnenditures from the
fund for various types of ec,uipment and suppli&. . Subsection (e) of
article 53.08 expressly provides that expenditures from the fund may
be used to defray the “exI,enses of the prosecutor’s office.” As
indicated previously, expendj,tures are not limited to the direct costs
of effecting article 53.08, ‘>ut may be used to defray the expenses of
the entire prosecutor’s office. Nevertheless, expenditures must
directly relate to the official duties and functions of the pro-
secutor’s office. Consequently , the attorney may make expenditures
from the fund to pay for a cc~mputerired office security system and new
carpet if those things are re.ssonably necessary to the performance of
the official duties of the p.rosecutor,s office. To the extent that
such expenditures can be made from the special fund, the approval of
the commissioners court need c.ot be obtained.
V. Expenditures for members of the grand jury. In questions 16
and 17 you ask whether the T’ttornev may make exnenditures from the
fund to-pay for coffee, douf;tlnuts, iunch, and framed photographs for
members of the grand jury. These are clearly not expenses of the
prosecuting attorney’s 0ff:lce. Compare Code Crim. Proc. 1038.
Consequently, totally aside E,rom the ethical considerations involved,
the attorney lacks the authority to make such expenditures.
2, U M M A R Y
The county alztorney, district attorney, or
criminal district attorney who administers the
special “bad check” fund created pursuant to
article 53.08 of ,:he Code of Criminal Procedure
need not obtain th,e approval of the commissioners
court prior to making expenditures from the fund.
Expenditures from t.he special fund are not limited
to the costs which are related solely to the
prosecution and collection of bad checks; they may
be made for the whole prosecutor’s office.
Outlays from t’he fund are, however, limited
to defraying the salaries and expenses of the
prosecutor’s office. Although salary increases
and pre-existing “in kind” forms of compensation
are authorized, no l~onuses, salary supplements, or
allowances may be made which operate as additional
compensation to an employee after the employee’s
services have been rendered. An employee may,
however, be reimbursed for legitimate expenses
p. 1439
Ronorable Oscar H. Maury - Page 14 (JM-313)
incurred in the Performance of the employee’s
official duties.
The attorney may make expenditures from the
fund to pay for of:f:lce equipment and supplies if
they are reasonablg, necessary to the performance
of the official dut:les of the prosecutor’s office.
Expenditures for t!w benefit of members of the
grand jury are not authorized.
JIM MATTOX
Attorney General of Texas
TOMGREEN
First Assistant Attorney Gener,al
DAVID R. RICHARDS
Executive Assistant Attorney Ceneral
RICK GILPIN
Chairman, Opinion Cormaittee
Prepared by Jennifer Riggs
Assistant Attorney General
APPROVED:
OPINION COMMITTEE
Rick Gllpin, Chairman
Jon Bible
Colin Carl
Susan Garrison
Jim Moellinger
Jennifer Riggs
Nancy Sutton
p. 1440