Case Information

*1 Honorable C. H. Cavnem

stat.5 Auditor

Austin, Texas

Dear Sir: opinion No. O-6676

Re: State Apportionments to counties operating under officers' Salary Fund and where there is a Criminal District Attorney or $ounty Attor- ney performing the dutiiee of Dis- trict Attorney.

We are in receipt of your request for an opinion on the abbve mat- ter, said request being a6 follows:

"In connection with an audit we are now making of the Ju- diciary Section of the State Comptroller's Department for the

three years ended. August 31, 1944, we find it necessary to re- quest an opinion from your Department a8 to the following appor- tionment appropriations:

"Apportionments to counties where county officers are paid salaries and where there is a Criminal District Attorney or

County Attorney performing the duties of District Attorney (for 33 counties in 1940, per Sub-section B, Section 13, Chapter 465, Acts Forty-fourth Legislature).

"Year Ended August 31st:

"1942 $146,42y.O0 146,429.00

1943 1944

146,429.00 "Article 3912e, Section 13B, reads as follows: "The compensation of a criminal district attorney or county attorney performing the duties of dietrict attorney, together with the compensation of his assistants, shall be paid out of

the County Officers' Salary Fund, but the State shall pay into such fund each year .!+n amount equal to a sum which bears the

same proportion to the total salary of such criminal district attorney or county attorney performing the duties of a district attorney, together with the salary of his assistants, as all

Hoti. C. H. Caress, page f (0-6676)

felay fees sollect.rd by such official during the year 1935 bear to the total fees cc;i.lected by such official during such year.' "We qucte, I.: part, from Attorney General's Opinion addressed tcj the CrLaptroile.r cf Pub1j.c Accouds under date of September 15, 1936, relative to t,'ie: ix1usl.o~ cd stenographers, bookkeepers and invest!.gators as 'assistants':

"*Recel.pt is her+y ackzodedged op your letter of Sept&,er 15, 1936 wherein you refer to subsection (b) of Section 13 of Sena+:e Bill NG. Acts of thz Second Call& Session of the Forty- fourth Legislature and wish to be advised as to whether or not StenO@apheI'S, bookkeepers, and investigators should be consid- ered as assistads unaer the terms Gf this Section. . . . . . . While stenographers, bookkeepers, and investigators are assistants In a limlt~d sense 0," the word In that they assist in the conduct of the duties of ihe office, we are of the opinion that the Leg- islature did not intend to include such employees $n the terms of Section 13 (b), supra. It is the opinion afthe writer that the Legislature interidea to include only assistant +listrict or county attorneys as that word is commonly accepted, that is, practicing attorneys who in some way assist in the prosecution of cases~in tte respective col;z%ies.*

"We quote IL part, from your opinlda@-essed to the Camp- troller ucaer date cf V&r& 9, 1936:

"'When will the Comptroller be required to pay into the County Officers' Salary Funathe moneys provided for under Sub- section B of Section 131

"'We are of the opinion that the Comp%zoll.er's Department . should pay into the Officers' Salary Fu& of the respective counties the amount provided for in Section 13 (b) at the first .of each year, that is, on January First.' ~

"we quote, in part, from your opinion NO. o-6226, addressed

to the Comptroller:

"'You state that the maximum amount that could be paid the Criminal District Attorney and his aasietants by statute is $'j2,150.00 per annum, but the actual expenditures by Bexar County to the Criminal District Attorney ana his assistants is $45,500.00 forthisyear...........................

11 I . . . . . . it is our opinion that in making your allnca- tion of the appropriation as provided by said,~statute, you should make your calculations of the distribut$ons on ~the amount actually paid by the county to the,Criminal District. Attorney ana his~ae- sistants and not on the maximum amount !&at the,law~ au$horizes.' *3 . Hon. C. H. Cavness, page 3 (o-6676)

"In auditing the records of the Comptroller's Department pertaining to this salary apportionment for the three-year perl- od ended August jlet, 1944, we find the following altuation: "1. At the beginning of each calendar year the Comptroller prepares a schedule of ealary apportionment for each and all par- ticipating counties. The lralaries used by the Comptroller in this schedule are those furnished by each county by letter from such county purporting to be the salaries which will be paid for the ensuing calendar year to Criminal District Attorneys and their assistants.

"Thie, of course, means that the Comptroller is using what might be considered estimated salaries and which in most cases represent maximum salaries rather than the actual salaries paid as outlined in Attorney General's Opinion No. o-6226. Obviously, the Comptroller could not know what salaries had been paid until the end of the calendar year based upon each county's payroll. “2. During this three-year period some counties reported

in their letters to the Comptroller for inclusion of salary ap- portionment calculations, salaries for abetractors, investigators, clerks and stenographers, all of which salaries were used by the Comptroller in computing salary apportionment to the respective counties.

"3. Some counties included the names of 'Assistants' who were not shown in the Texas Legal Directory and/or the records of the Supreme Court of Texas as being licensed and practicing attorneys, which fact was discovered by us in checking the names submitted to the Comptroller back to the Legal Directories, etc. In one instance we found that a county included the name of an attorney who had not paid his Bar Association dues since 1939. "4. In checking the names and salaries shown each year as reported by the respective counties to the Comptroller for in- clusion in salaries apportionment to the State Auditor's Forms NO. 383 and 383a, which forms report the fees received and the annual salary paid the County Officers and employees, we found that in many instances the salary listed in such letters to the Comptroller by the respective counties exceeded the actual sala- ries paid such County's officers and employees as reflected in ~0rm.s NO. 383 ana 383a,

"We also found that numerous counties had not furnished Forms No. 383 and 383a to the State Auditor each year as re- quired by Statute, so in order to obtain the necessary data for audit purposes, we wrote each county which has partici- pated in State Salary Apportionment requesting that they fur- nish us with a list of all salaries paid attorneye eligible *4 Hon. C. H. Cavneae, page 4 (O-6676)

for participati.on in th4.6 apportl.onment for the calendar years ended December lat, 194.1, 1942, 1943 and l&4.

“In checking the replies to these confirmation lettern to thoae aubmitted. by the counties to the Comptroller, we found the 6am.e situation, to e:xi.st - t.he letters ured by the Comptrol- ler reflected ealerfea whi.c’h were In, excess of the amounta ac- tually paid.

"5. In checking the salaries submitted. by the respective counties to the governing Statutes , it appeare to UB that aome countfee have included ealariea for poal,ttona which are not eli- gible for participatl,on. in. the apporti,onment and in some inetancea the salaries submf.tted were in excess of the amounta fret forth in the Statutee.

“In order to arrive at a definite procedure to be followed by the Comptroller in compu.ting State Salary Apporti,onment in the future and aleo to enable us to complete our audit for the three-year period ended August jlet;, I$&, we are attaching herewith a echedule prepared by ue frox ,the letters received from the respective countiee whhl.ch wan the basis for salary apportionment a8 used by the Comptroller for the three-year period under audit. This schedule shcws the names, positions and aalariee, by countfes, by years for t,he three years ended August 31at, 1942, 1943 and 194,&.

“It will be eeen that, J.n thl,s sched~.:.e we have footnoted (by letter referencee) cowerin.@; certal,n ‘LcllLq~ties whf,cb. haave included salaries w:hich we do not believe are el!.gi.ble under the existing Statutes e

“T:his schedule provtdes add!.tl,oeal. columns ‘Co be filled in by you a8 fol.lows:

“1. On t.his mdm3ul.e please insert the Law references for each poaitio:n in each cou&y and advi,se whether 'aqy of such laws are unconstitut1,onal as tc partZ.c%.pation in State Salary Apportionment D

"2. We ‘also ask th& you pl.ea~e fi1.J :fn the remai;nio.g three columns in this schedu.ie to chow the maxi.mum salary allowed by law for each of the positions for each courty eligible for parti.cipati.on in t,h,Li eslary apportLonmect.

"3s The salary apportionment appropriati,ons for t,he three years under review refer to t’hirhy-three (33) coun- tiea, whereas the attached schedule covera only thirty-one (31) counties receiving such apportbonment as computed by the Comptroller. Shou.ld two more counti.ea partl,cipate in *5 . Hon. C. H. Cavness, page 5 (o-6676)

this apportionment? If so, please furnish the names of the coun- ties, the applicable laws and the respective salaries to be in- cluded for such countlee.

"4. What ie the effect of the Special Federal Census in Jefferson County on that county'8 apportionment - that Special Census increased the population from 145,329 in 1940 to 191,942 as of June 15th, 1943, the date of said Special Federal Censue. “5. Based upon your Opinion No. o-6226 which is to the

effect that calculations of the distributions should be computed on the amount actually paid by the county to the Criminal Dis- trict Attorney and his Assistants rather than on the maximum amount the law authorizes, it appears to us that the Comptroller would have to wait until the end of each calendar year before he could calculate salary apportionment due the respective counties. Are we correct in assuming that this is the method which should be used, the salary data perhaps furnished the Comptroller at the end of each year through certified reports furnished by the County Auditors of the respective counties?

“6. Since we found that some counties have been over-paid salary apportionment (which of course means that other counties have been under-paid) over the period of the three years under audit, can such errors be adjusted from any salary apportionment appropriation balance and/or from future salary apportionment appropriations, and for what period of time? Would such adjust- ments be retroactive to January lst, 1936, the effective date of the State Salary Apportionment laws?"

We will consider the apportionments to the named officials of the various counties in the order submitted by you and cite the statutes that au- thorized same, a8 well as to call attention to any errors that may have been made in making said apportionments. If desired, you can then place such mat- ters into the schedule submitted with your request, which is returned herewith.

It will be necessary for us to refer to the various subdivisions of the statutes governing these matters but, instead of referring to each of the subdivisions, we will give the article and number thereof followed by a period and the number of the subdivision. All salaries will be considered on an annual basis without being so specified.

It may also be necessary for us to refer to and attach copies of other opinions of this department, and when that is done said opinions, and each of them, will be adopted as a part of this opinion insofar as they pass upon questions here discussed.

Bexar County. The Bexar County Criminal District Court was created and established by Articie 52-161 of the Code of Criminal Procedure of the State of Texas, and Section 12 of said article provides for the election of *6 . Hon. C. H. Cavness, page.6 (o-6676)

a criminal district attorney of said county. Article 3912e-1 of Vernon'e An- notated Civil Statutes fixes the salary of said criminal dietrict.attorney at the sum of $7,400.00.

We are unable to state just what positlone ln,the office of Criminal District Attorney of Bexar County were filled by any particular persons, as set forth on the schedule submitted, as home of the ealaries paid euch person6 are lese than those authorized by law. In our opinion, Article 3912e., Section lg(f-l), fully authorlzed all of the salaries shown in the echedule, eince Bexar County had a population of 338,776 under tha Federal Censur of 1940 and such statute applied to the district attorney or the criminal district attor- ney, in any county having a population of not less than 325,000 nor more than 500,000 according to the laet preceding Federal Census.

Your schedule shows twelve assistantcriminal district attorneys for each of the three years. In 1942 the following salaries were paid: one assistant at $4,500.00, three at $4,200.00, two at $3,600.00, two's& $3,000.00, and four at $2,700.00. In 1943 the following salaries were paid eaid assistants: two at $4,500.00, one at $4,200.00, three at $3,600.00, three at $3,000.00, and three at $2,700.00, And, in 1944 the following salaries were paid said assistants: two at $4,500.00, one at $4,200.00, three at $3~,600.00, three at $3,000.00, and three at $2,7OO,OO. The statute above referred to authorizes the criminal district attorney to appoint nine assistants and to fix their salaries at a rate not to exceed the following amounts: two at $4,500.00 per .annum each, two at $4;200.00 per annum each, one at $3,600.00 per annum, one at $3,OOO.Q0 per annum, and three &$2,7OO.O0 per annum ea.ch. In addition. to those, the criminal district attorney was author.ized.to appoint, with the advice and consent of the' Commissioners' Court, the following additional as- sistants and pay them the.salaries stated, to-wit, one at * salary not to ex- ceed $4,250.00 per annum; one not to exceed $3,600.00 per annum; one not to exceed $3,000.00 per annum; and two not to exceed $2,7OO.OO per annum; and one not to exceed $2,,400.00 per annum.

House Bill No. 849, Ch. 271, pb 428, Vernon% Texas Session Law Serv- ice, passed by the last Legislature and which became effective ninety (90) days after June 5, 1945, date of adjournment, applies,to counties having a popula- tion of 225,000 or more*and less than 500,OOO~according to the last preceding Federal Census, and fixes the Galaries of criminal district attorneysin md.~ counties at $6,500.00 up to January 1, 1946, and at $7,400.00 after that date. Our Opinion No. o-6728, a copy of which we hand you herewith, holds House BFll

. Noa 849 to be' in irreconci+able conflict with Senate Bill No. 246 insofar as

said bills apply to Bexar County. Therefore, Senate BilI,No. 246 will control the salary of the criminal district attorney in Bexar County.

Senate Bill No. 246, Ch. 312, p. 510, of said Law Service, applies to counties in this State having a population of not less than 300,000 nor more than 500,000 according to the last preceding Federal CenBus. This law became ef?ective on June 2, 1945, and governs the salary of the criminal dis- trict attorney fn Bexsr County after that date. This law authorizes his salary to be $7,700.00 per annum, and it also authorizes an increase of 15% on the *7 . Hoq. C. H. Cavnem, page 7 (O-6676)

salaries of the assistants, such increase to be based on the salaries of March Said law also repeal6 Article 3912e-1, Vernon'e Annotated Civil 15, 1945. Statutea, which in the law hereinbefore aet out a8 fixing the salary of the criminal district attorney for the years referred to by you.

As to those two referred to on your schedule for 1944, one at a salary of $3,000.00, the other at $2,700.00, whether or not the apportionment made on their salaries wa8 legal, would depend entirely upon whether or not they actually served as such assistants.~ If they did not eerve, then they should not have been included in the apportionment, a8 the holding made In our Opinion No. 0-6226 that the calculation should be based on the amount actually paid is evidently correct.

Article 3912e, Section 13, of said statutes provides that in counties having a population of 20,000 or more and lees than 190,000, the Commissioners' Court is authorized to fix the salaries of the county officials therein named, including the county attorney, criminal district attorney and county attorney who performs duties a8 district attorney, which ehould be not less than the total sum earned a8 compensation by them in their official capacity for the year 1935 and not more than the maximum amount allowed to such officials under laws existing on August 24, 1935. It wa8 provided further that in counties falling within a certain limit as to population according to the last preceding Federal Census such counties could have such amounts Increased in the event the assessed valuations were in excess of the amounts therein set forth accord- ing to the la& approved preceding tax roll. Article 3912e, Section 15, of said statutes, contains provieions relative to the salaries that such officials in counties having a population of less than 20,000 according to the last pre- ceding Federal Census could be paid, but none of the counties herein referred to come within aaid article and section. Therefore, it will not be further referred to, Our Opinion6 Iios, O-2748 and 0-2546-A contain a full discussion of the rules and methods governing the-fixing of such salaries under the above referred to provisions, and copies of same are enclosed herewith for your in- formatfon.

An exception to the rule set out in Article 3912e, Section that salaries shall not be less than the total sum earned for the year 1935 and not more than the maximum allowed under laws existing on August 24, 1935, is con- tained In Article 3912e-7, which became effective July 5, 1941. This law ap- plibd, however, only to Hldalgo and McLennan Counties during all of 1942, 1943 and 1944 and to Jefferson County up to June 15, 1943, and 6ame will be further considered In connection with each of said counties.

These rules do not apply, however, to counties whoee population is in exce68 of 190,000 a8 such counties come within the provisions of Article 3912e, Section 19.

Brazes County. This county had a population of 21,835 in 1930= Under Arficles 3883.1 and 3891, the county attorney of this county could have been paid a salary of $3,000.00. Under Article 3902.1, the first assistant county attorney could have been paid not to exceed $+,~oo.oo and other asaiat- ants nqt to exceed $1,500.0?.

. .

Hon. C. H. Cavness, page 8 (o-6676)

Collln Coupty. Thie county had a population of 46,180 in 1930.

Under Article8 3883.3 and 3891, the county attorney could have been paid a salary of $4,250.00., The population of this county for 1940 waB 47,190 and the assessed valuatione for 1941, 1942, and 1943 were $21;730,930.00, $22,350,260.00, and $Z!2,352,325.00, respectively, therefore, under Articles 3912e, Section 13, the county attorney could have been paid an additional 2$ for 1942,,m additions1 3% for 1943 and m additional 3$'for 1944, such per- , centagea baaed upon the salary of $4,250.00. Under Article 3902.3, the first asaietant county &torney could have been paid a ralary of $2,100.00, and other assistants not to exceed $1,800.00.

Cooke County. The population of this county was 24,136 in 1936. Under Articles 3883.1 and 3891, the county attorney could have been paid a salary of $3,000.00. The population l+ 1940 ME 24,909.. .The aeeeeaed valua- tione for 1941, 1942, and 1943 were $18,896,250,00~ $i0,089,410.00, and $ly,487,,8oo.o0. Therefore, under Article 3912e, Section the couqty,at- torney could have been paid an additional 4$, 6$ and 5% of said salary for the years 1942, 1943, 'and 1944, reepectively. .: Dallae County. !?he,Dallas,County Criminal Dietrict Court was created - and established by Article 52-l -- 52-24 of the Code of Criminal Procedure of the State of Texas, and Section 52-24 thereof provldee for a criminal dis- trict attorney; The 1940 population of Dallas County waB 398,564, therefore, the salary of the criminal district.attorney of Dallas County is governed by Article 3912e-2(b), which authoriZee.the fun qf $7,400.00 in all counties in <the State having a population in excess of 355,000 according to the laaet pre- ceding Federal Ceneus.

'The salariee paid to the various assistant criminal district attor- neys for the years named varyin amount, and.we? are unable to charge any of said salaries against any particular person, but Article' 3912e, Section 19(f-l), which applies to cou$ies having a population of noflees than..325,000 and not more than 500,000, authorizes all of the salaries set forth in the sched- ule submitted.

. Yoti show in your schedule fifteen assistant c&ni& district attor-

* . neys in 1942 who were paid the following salaried: one at $4,5OO.Od; one at $4,200.00; two at $3,600.00; two at $3,39y000 each; one at $39708.00; two at $2,7OO.OO each; thrae at $2,472.00 each; one at $2,008,50; one at $2,162.50; and orie at $1,854.00. You ahow thirteen for 1943 who were paid the following salaries: two at $4,500.00 each; three at $3,600.00 each; one at $3,9OO=OOj done at $3,000.00; one at.$2,700.00; and three at $2,400.00. You show twelve for 1944 who were paid the following sqlaries,: two'for&4,500'000 eachj one : for $3,9OO.Ooj thfree for $3,600.00 ea?h; one for $3,000.00; three for $2,700.00 each; and two for $2,400,00 each. TM above article authorizes the criminal district attorney to appoint nine aeaigtante and pay them the following sala- rieaj two at $4,500.00 perannum each;.two at $4,20OaOO per,annun each; one at $3,600.00 per annum; one at $3,000;00 per amm;, and,three at $2,7OO.OO per ennum each. *With the advice end consent of the Commissioners' Court, the same article'authorized.him to appoint aa many a8 six more aaai+anta,and pay *9 Hon. C. H. Cavueas, page 9 (O-6676)

them the following,ealarlez: one at $4,250.00 per annuzq one at $3,600.00 per nnnum; one at $3,000.00 per annum; two at $2,7OO.OO per ahuum; and one at $2,400.00 per annum. In our opinion, the aalnrier pnid said amirtantz during the years mentioned were authorized under the law, even though the amount8 paid were in zone caee6 lezz than the amount authorized.

We note you refer to awze abatractere and clerks having been paid salarlee when they were not licensed a8 practicing attorneys. Unlees said abstractem and clerka ware practicing law, they would not be required to be practicing attorneys. .Siuce there is nothing to show that they were practicing law, that is, trying cases, or doing other things requiring a lax license, we presume they were just what their positions imply, namely: abatractere and clerks. Under the opinion of this department referred to by you, dated September 15, 1936, and in which it x88 held that only assistant criminal district attor- neys should be included in making up the apportionment, abetracters and clerks should not have been included therein.

What has been hereinabove eaid as to House Bill Bo. 849 and Senate Bill Bo. 246, passed by the last Legislature, is also applicable to Dallas County, and the salary of the criminal district attorney of Dallas County should be considered on the basis of $7,700.00 per annum from and after June 2, 1945, and the assistants on an increase of 15% on the salsriee authorized to be paid on March 15, 1945, which would be those hereinabove set out.

Denton County. The population of thik county x88 32,322 in 1930. Under Articles 3883.2 and 3891, the county attorney could have been paid a salary of $3,500.00 per anuum. The 1940 population was 33,658, and he could have been paid a compeneation of 5$, 6% and 6$ of said amount for each of the years 1942, 1943, and 1944, respectively, under Article 3912e, Section 13, since the assessed valuations for the preceding yeare of 1941, 1942, and 1943 were $19,240,755.00, $20,041,05O.OG, and $20,170,6~5.00, respectively. Under Arti- cle 3902.2 the first aesiritant county attorney could have been paid not to exceed $2,000.00, and other aseistants not to exceed $1,700.00 each.

Eaatland County. You refer to thie county as having had a criminal district attorney for the years in question, but‘said county at no t,ime was authorized to have other than a county attorney. Our Opinion No. Oi6374, a copy of which is enclosed herewith, holds that a county attorney wan authorized for Eastland County, and our Opinion Ao. O-5024, a copy of which is aleo enclosed, and which is referred to in Opinion Bo. o-6374, holds that Article 326k-7, V. A. C. S., the only statute that uould have authorized a criminal district attorney for Eastland County, was invalid. However;the person serving as county attorney or criminal district attorney of Eastland County, even if under the impression that he was legally criminal district attorney of such county was entitled to compensation, a8 held in our Opinion No. 0-3158, which deals with a similar situation in Grayson County, and a copy of which is herewith enclosed. Therefore, we will consider this county a8 having had at leaat a de facto county attorney and entitled to the regularly authorized apportioa- ment.

Hon. C. B. Cavneas, page 10 (o-6676)

The population of thin coun$y wal 34,156 in 1930. Under ArtlcJee 3883.2 and 3891, the county attorney tir entitled to a 8alary of $3,500.00, The 1940 population wan 30,345, therefore, under Article 39l2e, Section 13, he could have been paid an additional muu of 6% of 1942, 6$ of 1943, and 5% in 1944, eince the anlreraed valuatibnr for the years preceding each of those yeare were $20,360,000.60, $20,372,340.00, and $19,575,780.00, rerpectively,

El116 County. Ellir County ir alro referred to 81 having had a criminal district attorney. The only rtatute authorizing a criminal dlatrict for such county 10 Article 3264-11, which, ar held by our Opinion attorney No. O-5024, hereinabove referred to, in UnconrtitutiOnal, or Article 326q, which is alno unconstitutional, 86 held by our Opinion no. O-5001, a copy of which is herewith enclozed. Your attention Se alao directed to the cane of Hill County v. Sheppard, 178 S. W. (2d) 261, wherein the Bupreme Court held Arti- cle 326s invalid. Therefore, we will only coneider aaid county as having been authorized to have a county attorney during the time involved.

The population of thin county in 1930 was 53,936. Under Articles 3883.3 and 3891, the county attorney could have been paid $4,250.00 per annwz. The I,940 population wae 47,733, therefore, under Article.j912e, Section 13, he could have been paid an additional Sum of 8$ for e&h of aaid.years, since the assessed.valuations for the preceding years xere #27,709,750.00, $27,969,257.00, and $27,918,705.00, rezpectively. Under Article 3902.3, the first aasletant county attorney could have been paid not to exceed $2,100.00. We are unable, however, to find any authority for a tax deputy in e. county bf this eize.

Said Article 3902.3 authorizes the appointment of other azzistants, deputies or clerks, who can be paid not to exceed $l,800.00 each. One of these could be called a tax deputy and he would not need to be a licensed attorney, unless he should be practicing law. ,

Falls County. We know of no-statute authorizing a criminal district attorney in this county other than those hereinabove referred to which have been held invalid. Therefore, this county will be considered aa having had a county attorney only. The population of this county in ~1930 was 38,771. Under Articles 3883*3 and~3891, the county attorney.could have been paic $4,250.00 per annum. The 1940 population wae 35,984 and under Article 3912e, Section 13, he could have been paid an additions1 15 of said amount. for the year 1944, since the asseesed valuation'for the ye&l943 wae $15;150,666.00. Under Arti- cle 3902.3, the first assistant county attorney could have been paid not to .exceed $2,100.00.

Fannin County. The population of this co&y in 1930 ~6 41,163. Under Articles 388303 and 3891, the county attorney could have been paid $4,250.00 . per annum. Under Article 3902.3, the first aseistant county attorney could .&ve been paid not to exceed $2,100.00.

Freestone County. The population of this county for 1930 was 22,589, and the same statement above mad@ aa to there being no authority for a criminal diatltict attorney in this county applies here. Under Articles 3883’.1 and 3891, the county attorney could have been paid a salary of $3,000,00 per annum.

Hon. C. H. Cavnesa, Page 11 (O-6676)

Galveston County. The population of this county In 1930 me 64,401. Under Articles 3883.4 and 3891, the county attorney could have been paid $4,750.00. The population of the city of Galveston In 1940 wna 60,862. Under Article 3887, which applier to countier having a population of lGO,OOG or leas, and containing a city having a populatian in exceae of 50,000 in which county there la no district attorney, there could have been not to exceed three a6- sistant county attorneya in Galveston County, two of whom could have been paid not to exceed $2,7OO.OO per annum each and the other not to exceed $2,100.00 per annum.

House Bill No. 798, Ch. 187, p. 253, Vernon's Texaa Session Law Serv- ice, passed by the last Leginlature and which became effective May 9, 1945, provides that in all counties having a population of 60,001 and not more than 100,000 according to the last preceding Federal Census the county attorneys in such counties which do not have a district attorney, and where the county attorney performs ths duties of county attorney and district attorney, the county attorney shall apply to the Coxmisslonerr I Court of his county for au- thority to appoint such assistant county attorneys as he may require in the performance of his duties, and the Coamiesioners' Court is authorized to de- termine the number to be appointed and fix the compensation to be paid within the limitations named therein, which shall be a reasonable one, not to exceed $3,6OO.00 per BI~I~UP~. This law applies to Galveston County from and after its effective date.

Grayson County. This county was at no time entitled to have a crimi- nal district attorney, and we direct your attention to what has hereinabove been said as to the validity of the laws which undertook to create such an office. In 1930 the population of this county was 65,843. Under Articles 3883.4 and the county attorney could have been paid $4,750.00 per annun. Under Article 3902.4, the first assistant could bavebeen paid $2,400.00 and other assistants $2,100.00 per annum each. What has been above said as to House Bill No. 798 also appliea to Grayson County.

Gregg County. The crinlnal district court of this county was created by Article 199, Subdivision 124, V. A. C. S. Section 21 thereof authorised the criminal district attorney of aaid criminal district court to be paid a salary of $4,250.00, and Section 22(a) thereof authorized a first assistant criminal district attorney at $3,600.00 per annun and a second assistant crimi- nal district attorney at $3,000.00 per Mrunk.

Harris County. The criminal district court of Harris County was created by Article 52-25 -- 52-88 of the Code of Criminal Procedure of Texas, and Subdivision 52-43 thereof provides for the election of a criminal district attorney. The 1940 population of this county was 528,961, therefore, the salary of the criminal district attorney is governed by Article 3912e-2(b) which authorized sane to be $7s400.00 in counties having a population in ex- cess of 355,000.

The number and salaries of assistant criminal district attorneys in this county are governed by Article 3912e-2(f). Under this provision nine *12 Hon. C, H. Cavness, page 12 (o-6676)

assistants could be appointed and paid the following compensation: tuo at $4,500.00 per annum eachj two at $4,200.00 per annum each1 one at $3,600.00~ one at $3,000.00 per snnumj and three at $2,7OO.OO per annum each. In addi- tion, should the district attorney be of the opinion that ths number of such assistant6 is not adequate, hs could, with the advice and consent of the Commir- aloners' Court, appoint the following additional assistants and pay them not to exceed the salaries mentioned: one at $4,250.00 per annumj one at $3 600.00 per annumi one at $3,000.00 per annumj and two additional assistants at 62,700.oo per annum each.

Under the schedule submitted by you, the following arrirtantr were appointed and paid the stated salaries for each of raid years: for 1942, two assistants at $4,500.00 each3 three at $4,200.00 each) two at $3,600.00 each) two at $3,OOp.O0 each) and five at $2,7OO.OO each: In 1943 two at $4,500.00 each; two at $4,200.00 each4 two at $3,600.00 each; two at 4 3,OOO.OO each; and five at $2,700.00 each: And in 1944, tuo at $4,500.00 each; three at $4,200.00 each; two at $3,600.00 each; two at $3,000.00 each; and five at $2,700.00 each. It ie our opinion, therefore, that all of said assistanta and the salaries paid them were duly authorized under the law.

Senate Bill No. 279, Ch. 85, p* 122, Vernon's Texas Session Law Serv- ice, which became effective on April 19, $945, applies to count,ies having a population of 500,000 or more and includes Harris County. Section 6 of said Act sets out the number of assistant criminal district attorneys that can be appointed in said county and the amounts of the salaries that can be paid.

Harrison County. The 1930 population of this county was 48,937. Under Articles 3883.3 and 3891, the county attorney could have been @aid as much as $4,250.00 per annum. Under Article 3902.3, the first assistant county attorney could have been paid not to exceed $2,100.00, and other assistants not to exceed $1,800.~~ per annum each.

Hidalgo county. We find no authority for a criminal district attor- ney in this county, therefore, what has been heretofore said in connection with Articles 326k-p, 326k-11 and 326s is also applicable here, as there were no other statutes authorizing a criminal district attorney in this county.

Article 3pl2e-7, which became effective July 19&l, provides that the Commissioners' Courts in all counties having a population of not less than 100,000 and not more than lpO,OOO, according to the last preceding Federal Census, in fixing the salaries to be paid the officers named in Section 13 of Chapter 465 of the Acts of the Second Called Session of the Forty-fourth Legislature, (Art. 3912e, Sec. 13), where such salaries are determined in com- pliance with the laws which existed on August 24, 1935, and are based upon population, shall,c&pute, and fix the salaries of such officers at the maxi- mum amount which could have beenpaid under ,the laws existing on August 24, 1935, according to the Federal Census of 1940, and thereafter according to the lastpreceding Federal Census.

Hon. C. A. Cavnees, page 13 (o-6676)

The population of this county in 1940 was 106,ogp. Under Articles 3883.5 and 3891, the county attorney could have been paid $5,500.00 per annum. Under Article 3902.5, the first assistant could have been paid $2,600.00 per annum and other assietants $2,3OO.OO per annum each.

Hill county. No criminal district attorney has been authorized for this county, and we again refer to the opinions and statements hereinbefore referred to, and especially to the ca8e of Hill County vs. Sheppard, 178 S. W.

(2d) by the Supreme Court, which holds that the statute authorizing a crimi- nal district attorney for this county is invalid.

The population of Hill County in 1930 was 43,036. Under Articles 3883.3 and 3891, the county attorney could have been paid $4,250.00. The 1940 population was 38,355 and under Article 3p12e, Section 13, he could have been paid an additional l$ for each year, since the assessed valuations for 1941, 1942 and 1943 were $20,430,520.00, $20,438,op8.o0 and $20,357,450.00, respec- tively. Under Article 3902.3, the fir-et assistant county attorney could have been paid not to exceed $2,100.00.

Jefferson County. The Criminal District Court of this county waB created and established by Article 52-160 of the Code of Criminal Procedure of the State of Texas, and Section 11 thereof provides that the county attor- ney of Jefferson County shall be county attorney of this Criminal Dietrict Court.

The population of this county in 1940 was 145,329, therefore, it would be governed by Article 3p12e-7 and what has been hereinabove said a8 to Hidalgo County will also apply here as to the application of this Article.

Under Articles 3883.5 and 3891, the county attorney could have been paid $5,500.00 per annum. Under Article 3902.5, the first assistant could have been paid $2,600.00 per annum and other assistants $2,300.00 per annum each.

A Special Federal Census wa8 aounced for Jefferson County on June 15, 1943, showing the population of this county to be 191,942. Article 3pl2e, Section 19, provides that "Provisions of this Section shall apply to and con- trol in each county In the State of Texas having a population in excess of one hundred and ninety (1p0,000) thousand inhabitants, according to the last preceding Federal Census." Therefore, the salaries of the county attorney of Jefferson County and his assistants from and after June 15, 1943, are sub- ject to the provisions of said Section.

Article 3p12e, Section 19(d), provides that the officers therein named, including the "district attorney or criminal district attorney," as the case may be, shall receive a salary of $6,500.00 per annum, but no salary is provided therein for a county attorney in a county having a population In excess of lpO,OOO. Since the county attorney of Jefferson County is the county attorney for the Criminal District Court of said county and performs the duties of district attorney, or criminal district attorney, it is our opinion that he

Hon. C. H. Cavness, page 14 (O-6676)

is entitled to the compensation prescribed for the dl#trict attorney or crlmi- nal ditirict attorney, under the rule8 of law laid down in our Opinion No.

O-3158 hereinabove referred to. It is our opieion that he was and is entitled to a salary of $6,500.00 from and after June 15, 1943. This holding also has eupport in the former law, in that it is provided in Articles 3883.6 and 3891 that, in counties containing as many as 150,001 or more inhabitants, the dls- trict or criminal district attorney or ,county attorney can be paid as much aa $6,500.00 per annum.

Under Article 3902.5, the first arrirtant could hrve been paid not to exceed 2,600.oo per annum and other ar~irtantr could have been paid not to exceed t 2,3OO.OO per annum each to June 15, 1943. After June 15, 1943, the appointment of amrietants to Criminal Dirtrict Attorneyr IQ Jefferson County, or to the County Attorney, and the amounts of their salaries, in gov- erned by Article 3912e, Section 19(f), which providea for nine assistants to be paid the following salaries: two at $4,500.00 each5 two at $4,200.00 each; one at $3,600.,00~ one at $3,000.00; and three at $2,700.00 each.

It Is further provided In said Section 19(f) that should a district or criminal district attorney be of the opinion that the number of assistants, etc., is inadequate for the efficient performance of the duties of his office, with the advice and consent of the Commissioners' Court, he may appoint addi- tional assistants and fix their salaries as follows: one not to exceed $4,250.00; one not to exceed $3,600.00; one not to exceed $~,OOO.OO; and two not to exceed $2,700.00 each.

Your attention is also directed to House Bill No. 855, Ch. 307, p0 505, Vernon's Texas Sessions Law Service, which became effective June 4, 1945, and which provides that the county attorney in counties having a population of more than 190,000 inhabitants according to the last preceding Federal Census, where there is no resident district attorney or criminal district attorney, shall receive the mm@ salaT a8 provided for district attorneys or criminal district attorneys in Section l-a, Senate Bill No. 374, Ch. 26, Acts of the Forty-fifth Legislature, Regular Session, 1937; and said county attorneys are authorized to appoint assistants and employees in the se@e manner as is pro- vided for district attorneys or criminal district attorneys under the provisions of Section 1, House Bill No. 148, Ch. 68, Acts of the Forty-fifth Legislature, Second Called Session, and that such assistants shall be compensated as pro- vided in said Section 1 of House Bill No. 148.

The first Act referred to is Article 3912e, Section 19(d), which has applied since June 15, 1943, and the salary of the county attorney So pro- vided for, IS $6,500.00 per annum. The other Act referred to is Article 3912e, Section 19(f), and authorizes the same number of assistants as has been author- ized in this county since June 15, 1943, and said assistants can be paid the same salaries as have been authorized to be paid since said date.

You refer to~the fact that the chief clerk employed by the criminal district attorney of this county In 1942 and 1943 was not an attorney. There is no law requiring a chief clerk to be an attorney, but under the opinion *15 Hon. C. H. Cavness, page 15 (o-6676)

of this department referred to by you, dated September 1936, the salary of such chief clerk should not have been used as a basis for the apportionment by the State here under consideration.

We enclose herewith a copy of our Opinion No. O-6499 holding that the Special Federal Census of June 15, 1943, governs in fixing the amounts of salaries after that date in Jefferson County.

Kaufman county. The population of this county in 1930 was 40,905. Under Articles 3883.3 and 3891, the county attorney could have been paid $4,250.00 per annum. Under Article 3902.3, the first assistant county attor- ney could have been paid not to exceed $2,100.00.

'Lamar county. The population of this county in 1930 was 48,529. Under Articles 3883.3 and 3891, the county attorney could have been paid $4,250.00. The 1940 population was 50,425, and the assessed valuations for 1941, 1942 and 1943 were $21,278,295.00, $21,653,595.00 and $21,81.7,1.10.00, respectively. Therefore, under Article 3912e, Section 13, the county attor- ney could have been paid an additional 2s of $4,250.00 far each of the years 1942, 1943, and. 1944. Under Article 3902.3, the first assistant could have been paid not to exceed $2,100.00 and.other assistants not to exceed $l,800.00 per annum each.

Limestone County. The 1930 population was 39,497. Under Articles 3883.3 and 3891, the county attorney could have been paid $4,250.00 per annum.

The 1940 population was 33,781 and the assessed valuations for 1941, 1942, and 1943 were $16,529,6lO.O0, $15,607,655.00, and $16,176,100.00, respectively, which, under Article 3912e, Section 13, would have authorized the salary of the county attorney to have been increased 2$, l$, and 2$, respectively, for the years 1942, 1943, and 1944. Under Article 3902.3, the first assistant county attorney could have been paid not to exceed $2,100.00. We enclose here- with copy of our Opinion No. 0-2560 which deals with the proper method of com- puting salaries of county and district officials in this county.

McLennan County. This county was at no time authorized to have a criminal district attorney, and what has hereinbefore been said as to the in- validity of the statutes authorizing criminal district attorneys is also ap- plicable here.

The population of this county in 1940 was 101,898, therefore, it would be governed by Article 3912e-7 and what has been hereinbefore said as to Hidalgo and Jefferson Counties as to the application of said Article also applies here.

Under Articles 3883.5 and 3891, the county attorney could have been paid $5,500.00 per annum. Under Article 3902.5, the first assistant could have been paid not to exceed $2,600.00 per annum and other assistants not to exceed $2,3OO,OO per annum each.

Hon. C. H. Cavnese, page 16 (o-6676)

Milan County, There raa no statute authorizing a criminal district attorney for this county, and what has heretofore been said relative to such officials not being authorized also applies here. The 1930 population of this county was 37,915. Under Articles 3883.3 and 3891, the county attorney could have been paid an much a8 $4,250.00 per annum. The 1940 population wan 33,120 and under,Article 3912e, Section 13, he could have been paid an additional sum of l$ of said salary for each of raid yearo, mince the araeaaed valuations for 1941, 1942 and 1943 were $15~76~735.00, ,$15,423,512.00, end $15,581,045, respectively.

Navarro County. This county wan not authorized to have a district attorney and what has been heretofore said ar to criminal district attorneys also applies here, if eald county wae considered aa having been subject to the statutea referred to. The population of this county for 1930 waa 60,507. Under Articlee 3883.4 and 3891, the county attorney could have been paid a8 much a8 $4,750.00. The 1940 population was 51,308 and under Article 3912e,' Section 13, he could have been paid an additional mun of 1% of said amount for each of the years inquired about, since the &seeqed valuations for the years 1941, 1942 and 1943 were $20,083,293.00, $20,090,547.00, and $20,608,666.00, respectively. Under Article 3902.3, the fir& aesistant could have been paid as much as $2,100.00 per annum and other assistants as much a8 $I.,~OO.OO per BMUIil. We alao hand you herewith a copy of our Opinion No. 0-6484, which deals with the salaries of the county attorney of this county. Ae to whether all those referred to as assistants were actually entitled to be carried as such would depend upon the services performed and, if they were not actually assiet- ant, county attorneys, they should not have been used as a basis for this ap- portionment from the State.

Red River County. The 1930 population of this county was 30,923. Under Articles 3883.3 and 3891, the county attorney could have been paid as much a8 $3,500.00.

Robertson County. The 1930 population of this county wan 27,240. Under Articles 3883.2 and the county attorney could have been paid a8 much as $39500.00 per annum.

Rusk County. The 1930 population of this county was 32,484. Under Articles 3883.2 and 3891, the county attorney could have been paid a8 much ae $3,500000 per annum. The 1940 population was 51,023 and under Article 3912e, Section 13, he could have been paid an additional 72$, 70% and 66$, respectively, for the years 1942, 1943 and 1944, since the asseesed valuations for 1941, 1942 and 1943 were $g1,210,805.00, $89,342,105.00 and $85,367,894.00, respectively. Under Article 3902.2 the first assietant county attorney could have been paid aa much as $2,000.00 per annum and other assietante as much as $1,700.00 per annUrn.

Tarrant County. The Crimiqal District Court for Tarrant County wan created and established by Article 52-63 -- 52-87 of the Code of Criminal Pro- cedure of the State of Texas, and Subdivision 52-81 provides for a criminal dietrict attorney. The 1940 population of Tarrent County was 225,521, therefore *17 Hon. C. H. Cavness, page 17 (O-6676)

the salary of the criminal district attorney of said county is governed by Article 3912e, Section 19(d), which authorizes the sum of $6,500.00 for each of the years inquired about in counties having a population in excess of 190,000.

The salaries paid to the various aeaistaut criminal district attor- neye for the years named vary in amount, and we are unable to charge any of said ealaries against any particular person, but Article 3912e, Section 19(f), which applies to counties having a population in excess of 190,000 authorices all of the salaries in the schedules submitted, except as hereinafter eet forth.

You show in your schedule fifteen assistant criminal dietrict attor- neys for 1942, who were paid the folloxi.ng salaries: two at $4,500.00 each, one at $3,600.00, one at $3,300.00, two at $2,880.00, two at $2,520.00, one at $2,400.00, one at $2,34O.OO, three at $2,100.00, oue at $1,920.00, and one at $1,800.00. You show twelve for 1943 who were paid the following salaries: two at $4,500.00 each, one at $3,600.00, one at $~,OOO.OO, one at $2,880.00, two at $2964~.~~, one at $2,520.00, two at $29400.00, one at $2,280.00, one at $2,100.00, and eleven for 1944 who were paid the following salaries: one at $4,500.00, two at $3,600.00, one at $~?OOO.OO, one at $3,180.00, two at $2,7OO.OO, and four at $2,880.00. Said Article 3912e, Section 19(f), author- izes the criminal district attorney to appoint nine assistant criminal district attorneys and pay them the following salaries: two at $4,500.00, two at $4,200.00, one at $3,600.00, one at $3,000.00, and three at $2,700.00. In addition, if he be of the opinion that the number of assistants is insufficient, he may, with the advice and consent of the Commissioners' Court, appoint addi- tional assistants and pay then the following salaries: one not to exceed $4,250.00, one not to exceed $3,600.00, one noa + to exceed $3,000.00, and two not to exceed $2,7OO.OO. It is our opinion, therefore, that salaries paid said assistants during the years mentioned were authorized under the law even though the amounts paid were in some cases less than the amount authorized, except that fifteen were used and paid in 1942 when only fourteen were au- thorized.

House Bill No. 241, Ch. 74, p0 106, Vernon's Texas Session Law Serv- ice, applies to counties having a population of 225,000 or more and leas than 500,000 according to the last preceding Federal Census and would include Tar- rant County. This law authorizes the district attorney to be paid a salary of $7,400.00.

House Bill No. 849, Ch. 271, p0 428, of said Law Service applies to counties having a population of 225,000 or more and less than 500,000 and also includes Tarrant County. This law fixes the salary of the criminal dis- trict attorney at $6,500.00 per annum up to January 1, 1946, and thereafter at $7,400.00 per annum. Under the rules of law set out in our Opinion No.

o-6728 hereinabove Peferred to, House Bill No. 849 would govern the salary of the criminal district attorney in Tarrant County, instead of House Bill No. 241, since House Bill No. 241 was approved and became effective on April 10, 1945, and House Bill FTo. 849 was filed by the Governor on May 30, 1945, and became effective ninety days after June 5> 1945, or on September 3, 1945.

Hon. c. H. Cavness, page 18 (o-6676) Therefore, House Bill No. 849 repeals House Bill No. 241 Insofar as they are in conflict, the conflict being that Houee Bill No. 241 providea for a salary of $7,400.00 for the district attorney while Houre Bill Ao. 849 provideB that said salary shall be only $6,500.00 to January 1, 1946, and $7,400.00 there- after. Therefore, in connection with the salary of the criminal dintrlct at- torney of Tarrant County, it will be $6,500.00 per &MWE to April 10, 1945; $7,400.00 per mum from April 10, 1945 to September 3, 1945j $6,500.00 per annum from September 1945, to Jaauary 1, 19461 and thersaiter $7,400.00 per agum.

While "District Attorney" in named ln House Bill No. 241 and "Die- trict Attorney" and "Criminal District Attorney" in Houre Bill No. 849, it ia clear that both of eald bills were intended'to apply to "Criminal District Attorney", since all countiesl within the population bounde named have such official.

Van Zandt County. The 1930 population of this county was 32,315. Under Articles 3883.2 and 3891, the county attorney could have been paid aa much a8 $3,500.00. The 1940 population wa8 31,155 and under Article 3912e, Section 13, he could have been paid an additional cum of 10% of said salary for each of said years, elnce the aaseeaed valuations for the years 1941, 1942 and 1943 were $24,067,ggg.O0, $24,064,984.00, and $24,296,412.00, respectively. Under Article 3902.2 the first assistant county attorney could have been paid not to exceed $2,000.00.

Williamson County. This county was at no time authorized to have a crFmina1 district attorney and what has heretofore been eaid as to the in- validity of law6 providing for a criminal district attorney in a county of this size is aleo applicable here. The 1930 population of this county was 44,146. Under Articles 3883-3 and 3891, the county attorney could have been paid a6 much a8 $4,250.00. The 1940 population ~88 41,698 and under Article 3912e, Section 13, the county attorney could have been paid an additional 2s for 1942, & for 1943, and 3% for 1944, since the assessed valuation6 for the respective preceding years were $21,206,110.00, $21,799,940.00, and $22,195,150.00. Under Article 3902.3 the first assistant could have been paid not to exceed $2,100.00 per annum, and other assistants not to exceed $I.,~oo.oo.

A county attorney is required to be a duly licensed attorney at law, and an assistant county attorney must have the 6am.e qualifications as the county attorney. (Articles 331 and 332, V. A. C. S.)

The State Bar Act (Art. 320a-l), which became effective fn 1939, provides in part a8 follows:

"Sec. 2. There Is hereby created the State Bar, which is hereby constituted an administrative agency of the Judicial De- partment of the State, with power to contract with relation to ite own affaira and which may sue and be sued and have such oth- er powers a8 are reasonably necessary to carry out the purposes of this Act.

,

Hon. C. H, Cavness, page 19 (o-6676)

"Sec. 3. All persona who are now or who shall hereafter be licensed to practice law In thin State shall constitute and be members of the State Bar, and ahallbe subject to the proviaiona hereof and the rule6 adopted by the Supreme Court of Texas; and all persons not members of the State Bar are hereby prohibited from practicing law in thir State,

"Within the meaning of this Section, all perrons furnishing evidence of or complying with any of the following provisions &all be deemed ae now liceneed to practice law within this State, viz:

"(a) That he ie now enrolled a8 an attorney-at-law before the Supreme Court of this State.

"(b) A license or the issuance of a license by the Board of Legal Examiners of thfs State authorizing him to practice law within this State.

"(c) A license or the 'leauance of a license to practice law within this State by any authority, which, at the time of the ie- nuance thereof, was authorized by the laws of thie State, then in effect, to issue the license."

Section 4 of said State Bar Act authorfzee the Supreme Court to pre- pare and propose rules and regulations for disciplining, suspending and dls- barring attorneys at law, which said rules and regulations were to be submit- ted to the members of the State Bar and a majority vote was required to adopt any or all of said rules and regulations. Said Act also authorized the Supreme Court to prescribe a fee not exceeding Four Dollare ($4.00) per ennum per per- son to be paid to the Clerk of the Supreme Court.

The rules governing the State Bar, which were approved in accordance with the above statutes, provide that the membership fee prescrrbed by the Supreme Court shall be due and payable by each member to the Clerk of the Su- preme Court on June 1st of each fiscal year, the fiscal year beginning June let and ending May jlst of the next succeeding year; that a member in default of payment of said fee for sixty days after it was due Shall be regarded a6 delinquent and shall be given written notice thereof by the Clerk of the Su- preme Court. Then, If the delinquent member fails to pay such fee within thirty days after said notice, he shall cease to be a member. Provision is also made that if at the end of ninety days after June let a member has not paid to the Clerk membership due for the current year the Clerk may strike from the rolle of the State Bar the name of the delinquent member.

You state that Borne persons have been used a8 assistant county at- torneys whose names do not appear in the Texas Legal Directory, or the record of the Supreme Court, as being licensed and practicing attorneys. We do not think that the failure to find the names of said assistants in the Legal Di- rectory would be sufficient evidence to show that they were not authorized to hold such official positions. As to the names of such aselstantrr not be- ing found in the records of the Supreme Court, we think it would be necessary *20 . I

Hon. C. H. Cavness, page 20 (o-6676)

to ehow that the hereinabove referred to rules had been followed and the name8 of euch aesiatante dropped from the membership rolls in accordance therewith before it could be raid that aaid aaristentn should not be conridered in con- nection with the apportionment here under consideration.

If the abstracters, tax deputies and clerks referred to by you were liceneed attorneys, they should be carried aa aaaistants but, if they were merely what such name6 imply, then they should not be considered in connection with making said apportionments.

As to the use of the namee of stenographers, bookkeeper6 and investi- gators a8 "assistants" in arriving at said apportionment, we agree with the opinion of this department referred to by you, addreared to the Comptroller under date of September 15, 1936, and It is our opinion that such ruling should be applied to any of such employees whose name8 appear in the schedule submlt- ted by you.

Article 3912e, Section 13(b), which provides for the apportionment here under consideration, does not fix any time for the payment of euch appor- tionment into the County Officer-6 ' Salary Fund of each county, but we suggest that, since the Comptroller must necessarily deal with two separate approprla- tions in each calendar year, he handle same 88 followe:

Make the apportionments at the end of each four months' period and after proper statements have been made q hewing the actual aum61 paid out, the apportionments to be made after December 31et of any year to be for the pre- ceding four months and to adjust any discrepanclee or errore in the allocation of the apportionments during the year ending on that date. The other times for the allocation of such apportionments can be after April 30th and August 31st of each year, and to be made only after receipt of proper statements a8 to the 8ume actually paid out by each of said counties.

We find two other counties that were eligible to share in these ap- portionments for the years 1942, 1943 and 1944, a8 well a8 future apportion- ments, viz: Montague County and Parker County. The 1940 populations of these counties were 20,442 and 20,482, respectively, and each of them had and has a county attorney who performs and Is performing the duties of district attorney.

As to the effect of the Special Federal Census in Jefferson County on that county's apportionment, we refer you to our Opinion No. O-6499, a copy of which Is herewith enclosed. The apportionment of this county will now be made on the basis of ita having a population in exce88 of 190,000.

We are unable to find any statute authorizing the Comptroller to make adjustments of these apportionments where there have been overpayments or under-payments In past years. It is our opinion that where any county or counties have been underpaid in allocations prior to the calendar year 1945, such error or error8 cannot be adjusted out of a current or future apportlon- ment, aa all such appropriationa must be used for the year for which they are appropriated, and it will be necessary for the Legislature to make a specific *21 . * .

Hon. C. H. Cavness, page 21 (o-6676)

appropriation for such purpose. Where any county has received more in past apportionments than It wan entitled to, it la our opinion that the State would have a claim again& such county or countiee for the mm or mm 80 received.

Your attention ir directed to the following law panned by the laet Legirlature which will likely affect the amount of theae apportionments in the future:

Senate Bill No. 123, Chap. 179, p. 244, Vernon's Texas Seasions Law Service, which became effective May 9, 1945, and which amends Articles 3891, 3902, 3912e, Section 13 and 3912e, Section authorizes the Commissioners' Court, under the conditions aud an therein eet forth, to increase the salaries of the officials and deputies therein named a8 much a8 25s. This would include some of the officials and aesirtants here being considered.

Yours very truly, APPROVED OcT.31, 1945 , ATT-GEZERALOFTEXAS /a/ Carlo@ C. Ashley

By /s/~Jas. W. Baasett FIRST ASSISTAIQ Jan. W. Baesett Aqeist+nt A!ITORNEY GEUERAL / JwB:LJ:LY ;

encls.

APPRO&

OPINION COMMITCEB

BY /a/ BWB

CHAIRMAN