Untitled Texas Attorney General Opinion
KP-0121
| Tex. Att'y Gen. | Jul 2, 2016Background
- Brown County Attorney's office entered into pretrial diversion agreements that required accused persons to make "donations" to the office; funds were transferred to the hot-check fund and used to compensate office employees.
- Requestors: Brown County Auditor questioned legality and handling; Brown County Attorney sought guidance on authority to accept and spend such funds.
- Gov't Code § 45.125 authorizes the Brown County Attorney or commissioners court to accept "gifts or grants" to finance or assist the county attorney's office and requires accounting to the county auditor.
- Code of Criminal Procedure art. 102.0121 expressly authorizes a prosecuting-attorney fee (up to $500) for pretrial intervention expenses, requires deposit in county treasury in a special fund, and limits expenditures to a commissioners-court–approved budget.
- The opinion analyzes whether § 45.125 authorizes conditioning dismissal on payments beyond art. 102.0121, who controls § 45.125 funds, and whether such funds may be commingled with special prosecutorial funds (e.g., the hot-check fund under art. 102.007).
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether § 45.125 authorizes the county attorney to require payments as a condition of pretrial diversion beyond art. 102.0121 | Auditor: Such payments may be improper and possibly unlawful; § 45.125 doesn’t authorize conditioning dismissal on payments | County Atty: Legislative history suggests § 45.125 permits shifting some costs to offenders as part of pretrial intervention | Court: § 45.125 likely does not authorize requiring payments in addition to or exceeding art. 102.0121; express statutory fee precludes extra prosecutorial payments |
| Whether a criminal court may order defendants to make § 45.125 "gifts" as part of diversion | Auditor: Courts should not be able to order such gifts | County Atty: (implicitly) courts could effectuate program funding | Court: No statute authorizes a criminal court to order a defendant to make a gift or grant under § 45.125; courts may only order fees under art. 102.0121 |
| Proper use and control of funds received under § 45.125 | County Atty: Funds can be used to operate the office (including related diversion costs) and spent by the office | Auditor: Commissioners court must oversee county funds and budgets | Court: § 45.125 funds are limited to financing/assisting the county attorney’s office; expenditures are subject to commissioners court budgetary control (not unilateral use by the county attorney) |
| Whether § 45.125 funds may be commingled with special prosecutorial funds (hot-check fund under art. 102.007) | County Atty: Practical similarity of purposes supports transfer/commingling | Auditor: Different statutory regimes require separation and distinct controls | Court: Likely not authorized to commingle; the hot-check fund and § 45.125 funds are subject to different statutory rules and must be kept separate |
Key Cases Cited
- Fischer v. State, 832 S.W.2d 641 (Tex. App.—Corpus Christi 1992) (defines pretrial diversion/intervention program)
- In re R.B., 361 S.W.3d 184 (Tex. App.—El Paso 2012) (describes pretrial intervention terminology and practice)
- United Servs. Auto. Ass'n v. Brite, 215 S.W.3d 400 (Tex. 2007) (express inclusion in statute excludes unlisted alternatives)
- Bush v. State, 722 S.W.2d 41 (Tex. App.—Eastland 1986), aff'd, 773 S.W.2d 297 (Tex. Crim. App. 1989) (payment to prosecutor in exchange for favorable treatment can constitute bribery)
- Hooten v. Enriquez, 863 S.W.2d 522 (Tex. App.—El Paso 1993) (county fund allocation is a policy decision for the commissioners court)