Case Information
*1 THE ATTORNEY GENERAI.
OF TEXxU3 July 6. 1987 JIM Mxl-cox XlToRs’EY OESERAL
Ronorable Gary W. Rholes Opinion No. M-738 Shelby County Attorney Re: Authority of a county attorney to
104 Church Street hire an investigator without approval Center, Texas 75935
of the commissioners court, where pay- ment will be made solely collected pursuant to article 53.08 of Code of Criminal Procedure Dear Mr. Rholes:
You ask about the authority of a county attorney to hire an investigator without approval of the commissioners court when payment of the investigator’s salary will be made solely from funds collected pursuant to article 53.08 of the Code of Criminal Procedure.
Pou note funds collected 53.08 are to be expended “at the sole discretion ~of the attorney” and that section the Government Code provides that a prosecutor “may . . . and other office personnel in employ . . . investigators judgment are required for the proper and efficient operation and Your concern is prompted by section administration of the office.” 41.106(a) of the Government Code which allows the prosecuting attorney and other office personnel fix investigators “subject to the approval of the commissioners court.”
Attorney General Opinion MW-439 (1982) addressed the question of expenditures by a criminal district attorney from the fund established by article 53.08. It states:
Article 53.08 of the Code of Criminal Procedure authorizes a county attorney, attorney, or criminal district to collect a fee if his office processes a hot check under certain circumstances. It further provides that:
(e) Fees collected under this article shall be deposited in treasury special to be administered by the county attorney, attorney, or criminal district r? attorney. Expenditures from this
shall be at the sole discretion of the *2 (JR-7381 Ronorable Gary W. Rholes - Page 2
attorney, and may be used only to defray expenses of the salaries and the prosecutor’s office. . . . (Emphasis added).
This statute creates a special fund which is in the county treasury, but which is segregated from other county funds and earmarked for a specific purpose. More Importantly. the statute that the is to be administered by county attorneys, district attorneys, and criminal district attorneys, and that, within the limits set out therein, expenditures from the fund are to be made at their sole discretion. The express enumeration of particular persons or things statute is tantamount to an express exclusion all others. Ex parte McIver, 586 S.W.2d 851 (Tex.
Grim. App. 1979). Thus, by virtue of the express language of the statute, the hot check is explicitly placed beyond reach the commissioners court.
By its terms, article 2368a applies only where a county acts ‘through its Commissioners Court.’ It follows, in our opinion, that the statute is not triggered unless, in making a specific purchase, a county acts through its commissioners Article 1659a does not contain this court.
precise language, but it does state that contracts for the purchase of supplies and materials are to be avarded to the party who ‘in the judgment of the Commissioners Court’ submits the lowest and best bid. This is sufficient to convince us that, like article 2368a, article 1659a does not come into play where a commissioners
involved with the purchase in question.
We have noted that article exclusive the hot check fund, and to make purchases from it, attorneys, attorneys, criminal attorneys. Because commissioners courts are without any right to administer the fund or to be involved in making expenditures from it, we conclude, the reasons set forth above.
articles 2368a and 1659a are inapplicable in this purchasing context. In this respect, it should be noted to conclude that these statutes are applicable is to give commissioners courts indirect means of controlling the fund, a result contrary to the express terms of article *3 Eoaorable Gary W. Rholes - Page 3 (m-738)
and. therefore, to the legislature's intent. A conmissioners court could, for example, refuse accept any or all bids in a particular instance and thus interfere with the exclusive right of the designated individuals the fund and to determine when, for what purposes, and under what circumstances expenditures will be made from it.
Attorney General Opinion JM-313 (1985) expressly that the prosecuting attorney way make expenditures from the hot check fund to hire staff without the prior authorization of the commissioners court. Since article the exclusive to county attorneys, attorneys and criminal district attorneys in administering fund to defray and expenses of the prosecutor's office, it is our opiaion that you may hire an investigator and set his salary without approval of the commissioners court where payment of salary is made from such fund.
SUMMARY Approval of the commissioners required a to hire investigator set salary where expenditure for same is derived solely collected the Code of Criminal Procedure.
JIM MATTOX Attorney General of Texas MARY KELLER
Executive Assistant Attorney General
JUDGE ZOLLIE STUKLEY
Special Assistant Attorney General
RICK GILPIN
Chairman, Opinion Committee
Prepared by Tom G. Davis
Assistant Attorney General