Does working as a prosecutor in another state count toward a Texas assistant prosecutor's longevity pay?

TX AG Opinion GA-0312: Does out-of-state prosecutor service count toward Texas longevity pay?

Plain-English summary

A district attorney asked the Attorney General about Texas Government Code chapter 41, subchapter D, the law that pays Texas assistant prosecutors a longevity supplement once they build up enough years of service. The specific question: if someone worked as an assistant prosecutor for a district attorney's office in another state before coming to Texas, do those out-of-state years count toward the four years of "lifetime service credit" the law requires before longevity pay kicks in?

The opinion said no. It read the statute's definition of "assistant prosecutor" (an assistant district attorney, assistant criminal district attorney, or an assistant county attorney compensated by the state to perform a district attorney's duties) and concluded every one of those roles is necessarily a Texas position, because the Texas Legislature has no power to define or fund a position in another state's government. Since the law only recognizes time worked as a Texas assistant prosecutor, the felony-prosecutor years the requester asked about, served under another state's district attorney, do not accrue lifetime service credit under section 41.257(a).

The opinion also addressed an earlier opinion, JC-0473 (2002), that the requester had pointed to. JC-0473 said the only express restrictions on accruing lifetime service credit are the ones in sections 41.257(b) and (c), and that nothing in the law draws a line based on where the experience was gained. This opinion explained that JC-0473 was answering different questions, whether credit requires continuous employment, and whether Harris County had to count credit earned in another Texas county, and never reached the question of out-of-state service. So JC-0473's broader language did not control here.

Currency note

This opinion was issued in 2005. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

Who this opinion affected (as of 2005)

County and district attorney offices: The opinion told prosecutor offices that, in calculating an assistant prosecutor's lifetime service credit under chapter 41, subchapter D, only time served as a Texas assistant district attorney, assistant criminal district attorney, or qualifying assistant county attorney counted, not equivalent prosecutorial work performed for another state.

Assistant prosecutors with out-of-state experience: The opinion meant that an assistant prosecutor who had previously worked as a felony prosecutor for another state's district attorney could not use that out-of-state time to reach the four-year threshold for the state's $20-per-year-of-credit longevity supplement under section 41.253(a).

County auditors and payroll administrators: The opinion gave the office responsible for calculating longevity pay supplements a clear rule for crediting service: count only Texas assistant-prosecutor employment, consistent with the funding structure where the state comptroller reimburses counties from the felony prosecutor supplement fund.

Common questions

Does experience as a prosecutor in another state count toward a Texas assistant prosecutor's longevity pay?
No. The opinion held that lifetime service credit under Government Code section 41.257(a) only accrues for time served as a Texas assistant prosecutor; the statute's definition of "assistant prosecutor" necessarily refers to a Texas official, since the Texas Legislature cannot create or compensate a position in another state's government.

What is longevity pay for Texas assistant prosecutors, and how is it funded?
The opinion described a longevity supplement of $20 per month for each year of lifetime service credit, available to an assistant prosecutor who is a full-time employee not on leave without pay and has at least four years of credit. It is funded by a $15 fee paid by each surety posting a bail bond for an offense other than a fine-only misdemeanor, deposited into the state's felony prosecutor supplement fund, from which the comptroller reimburses counties.

Who qualifies as an "assistant prosecutor" for purposes of this longevity pay law?
The opinion quoted the statutory definition: an assistant district attorney, an assistant criminal district attorney, or an assistant county attorney to a county attorney who is compensated by the state to perform the duties of a district attorney (the opinion cited Fayette and Oldham counties as examples of counties where the state compensates the county attorney to act as district attorney).

Background and statutory framework

Government Code chapter 41, subchapter D (sections 41.251 through 41.258) creates a longevity pay program for Texas assistant prosecutors. The opinion noted that the legislative history behind the program (a 2001 House Judicial Affairs Committee bill analysis) described roughly 1,600 assistant district attorneys, assistant criminal district attorneys, and assistant county and district attorneys statewide, many with more than four years of prosecution experience, and explained the program was meant to address assistant prosecutor salaries falling behind private-sector pay for experienced attorneys.

The mechanics: a $15 cost is charged to each surety posting a bail bond for an offense other than a fine-only misdemeanor under section 41.258, with a portion deposited into the felony prosecutor supplement fund in the state treasury, from which the comptroller pays counties. A county must pay the longevity supplement to the extent it receives those comptroller funds under section 41.255(a), (d), and is not required to pay if it receives none under section 41.255(f). An assistant prosecutor accrues lifetime service credit under section 41.257(a) for time served as a full-time, part-time, or temporary assistant prosecutor, except for any month on leave without pay (section 41.257(b)), and may accrue credit in only one position at a time if holding two simultaneously (section 41.257(c)).

To resolve whether out-of-state service counts, the opinion applied ordinary rules of statutory construction, starting with the plain and common meaning of the statute's words under section 311.011(a), and giving legislatively defined terms their technical meaning under section 311.011(b), citing Nat'l Liab. & Fire Ins. Co. v. Allen, 15 S.W.3d 525 (Tex. 2000), and Liberty Mut. Ins. Co. v. Garrison Contractors, Inc., 966 S.W.2d 482 (Tex. 1998). Because the Texas Constitution vests "the legislative power of this State" in the Texas Legislature (Tex. Const. art. III, § 1), and each state's legislature can only act for itself (citing Am. Nat'l Ins. Co. v. Coates, 246 S.W. 356 (Tex. Comm'n App. 1923, judgm't adopted)), the opinion reasoned that the statutory definition of "assistant prosecutor" in section 41.251(1) necessarily describes a Texas official, including the reference to a county attorney "compensated by the state" (Texas) to perform district attorney duties, an arrangement the opinion noted exists for Fayette County (§ 45.175) and Oldham County (§ 45.280). The opinion distinguished its own earlier opinion, JC-0473 (2002), as having addressed different questions (continuity of employment and crediting service across Texas counties) without reaching the question of service in another state.

Citations

Statutes and constitutional provisions:

• Tex. Gov't Code Ann. §§ 41.251-.258 (Vernon 2004)
• Tex. Gov't Code Ann. § 41.251(1) (Vernon 2004)
• Tex. Gov't Code Ann. § 41.252(a) (Vernon 2004)
• Tex. Gov't Code Ann. § 41.253(a) (Vernon 2004)
• Tex. Gov't Code Ann. § 41.255(a), (d), (f) (Vernon 2004)
• Tex. Gov't Code Ann. § 41.257(a), (b), (c) (Vernon 2004)
• Tex. Gov't Code Ann. § 41.258, (a), (i)-(j) (Vernon 2004)
• Tex. Gov't Code Ann. § 311.011(a) (Vernon 2005)
• Tex. Gov't Code Ann. § 311.011(b) (Vernon 2005)
• Tex. Gov't Code Ann. § 45.175
• Tex. Gov't Code Ann. § 45.280
• Tex. Const. art. III, § 1

Cases:

• Nat'l Liab. & Fire Ins. Co. v. Allen, 15 S.W.3d 525, 527 (Tex. 2000)
• Liberty Mut. Ins. Co. v. Garrison Contractors, Inc., 966 S.W.2d 482, 484 (Tex. 1998)
• Am. Nat'l Ins. Co. v. Coates, 246 S.W. 356, 359 (Tex. Comm'n App. 1923, judgm't adopted)

Other authorities:

• Tex. Att'y Gen. Op. No. JC-0473 (2002)
• Tex. Att'y Gen. Op. No. GA-0021 (2003)
• House Comm. on Judicial Affairs, Bill Analysis, Tex. H.B. 178, 77th Leg., R.S. (2001)
• General Appropriations Act, 78th Leg., R.S., ch. 1330, art. IV-22, 2003 Tex. Gen. Laws 5023, 5569-70 (Strategy B.)

Source

• Landing page: https://www.texasattorneygeneral.gov/opinions/greg-abbott/ga-0312
• Original PDF: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/2005/ga0312.pdf

Original opinion text

Best-effort transcription from a scanned PDF. Minor errors may remain — the linked PDF is authoritative.

ATTORNEY GENERAL OF TEXAS

GREG ABBOTT

March 21, 2005

The Honorable Micheal B. Murray
35th Judicial District Attorney
200 South Broadway, Courthouse
Brownwood, Texas 76801

Opinion No. GA-0312

Re: Whether service as an assistant prosecutor employed by the district attorney of another state qualifies as service credit for longevity pay under Government Code section 41.252(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.[1] 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. §§ 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. 178, 77th 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 fine only. See TEX. GOV'T CODE ANN. § 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. § 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. § 41.255(a), (d). See id. § 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 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. § 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. § 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. § 41.257(a). He does not accrue lifetime service credit for a month in which he is on leave without pay. See id. § 41.257(b). See also id. § 41.257(c) (an 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. §§ 41.253(a), .255(d), (f).

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, supra 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. JC-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 than Texas. See TEX. GOV'T CODE ANN. § 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'l Liab. & 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. § 311.011(a) (Vernon 2005); Liberty Mut. Ins. Co. v. Garrison Contractors, Inc., 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. § 311.011(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. § 41.251(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, § 1 (vesting the legislative power "of this State" in the "Legislature of the State of Texas"); Am. Nat'l 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. § 41.251(1) (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. § 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(1), 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. § 311.011(a) (Vernon 2005). Section 41.257(a) thus authorizes the accrual of lifetime service credit for service as a Texas 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.

SUMMARY

Government Code chapter 41, subchapter D provides for longevity pay for 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. WILLETT
Deputy Attorney General for Legal Counsel

NANCY S. FULLER
Chair, Opinion Committee

Susan L. Garrison
Assistant Attorney General, Opinion Committee

Footnotes

[1] Letter from Honorable Micheal B. Murray, 35th Judicial District Attorney, to Honorable Greg Abbott, Texas Attorney General (Sept. 17, 2004) (on file with Opinion Committee, also available at http://www.oag.state.tx.us) [hereinafter Request Letter].