Can a Texas prosecutor use drug-seizure money to pay employee bonuses or raises without commissioners court approval?

Texas AG Opinion JM-1253: Can a Prosecutor Use Drug Forfeiture Funds to Pay Staff Bonuses?

Plain-English summary

The Hood County Attorney asked whether a prosecutor could use drug seizure (forfeiture) money to pay bonuses or raise the salaries of office employees without first getting the commissioners court's approval, and whether doing so without approval would break any criminal law.

On the first question, the Attorney General said no, the prosecutor cannot do this without commissioners court approval. Article 59.06(d) of the Code of Criminal Procedure, the statute that governs how forfeited property is spent, lets a law enforcement agency or the attorney representing the state spend forfeiture proceeds only after submitting a budget to the commissioners court (or a municipality's governing body). The same subsection says the head of the agency or the attorney "may not use the existence of an award to increase a salary, expense, or allowance for an employee of the attorney or agency who is budgeted by the commissioners court . . . unless the commissioners court . . . first approves the expenditure." So any additional compensation to an office employee whose salary is budgeted by the commissioners court depends on the commissioners court approving it.

The opinion added a constitutional limit specific to bonuses. Because the bonuses here were described as rewards for achievement, they were compensation for services already rendered. Article III, section 53 of the Texas Constitution forbids paying extra compensation to a public officer, agent, servant, or contractor for services after they have been performed. Following its earlier Opinion JM-313 (1985), which held a prosecutor could not pay bonuses from the "hot check" fund even though the statute gave the prosecutor sole discretion over that fund, the opinion concluded a bonus may be paid to a county employee only if the commissioners court approved the bonus plan as part of the employee's compensation before the services were rendered.

On the second question, whether paying bonuses without approval would violate criminal law, the Attorney General declined to answer. The requestor pointed to no specific criminal statute, and whether particular conduct violates criminal law turns on factual determinations that are outside the opinion process.

Currency note

This opinion was issued in 1990. 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 mentioned here.

Who this opinion affected (as of 1990)

Prosecuting attorneys (district and county attorneys): The opinion told prosecutors that forfeiture proceeds could not be turned into employee bonuses or raises on the prosecutor's own say-so. For employees budgeted by the commissioners court, the court had to approve the expenditure first.

Commissioners courts: The opinion placed the approval decision with the commissioners court, both under article 59.06(d)'s budget-and-approval requirement and under the constitutional bonus rule, which required the court to approve any bonus plan as part of compensation before the work was done.

Employees of prosecutors' offices: The opinion meant a bonus or raise funded from forfeiture money was not something a budgeted employee could receive without the commissioners court's approval, and an after-the-fact bonus for services already rendered was barred by the constitution unless it had been set up in advance.

Common questions

Can a prosecutor spend drug forfeiture money however the office wants?
No. Under article 59.06(d), forfeiture proceeds may be spent only after a detailed budget is submitted to the commissioners court or municipal governing body, and salary or allowance increases for budgeted employees need the court's approval first.

Why can't a bonus for good work just be paid out of forfeiture funds?
Two reasons in this opinion. Article 59.06(d) requires commissioners court approval for compensation increases to budgeted employees, and article III, section 53 of the Texas Constitution bars extra pay for services already rendered unless the bonus plan was approved as compensation before the work.

When is a bonus to a county employee allowed?
Under the opinion, only if the commissioners court approved the bonus plan as part of the employee's compensation before the services were rendered.

Did the AG say whether paying bonuses without approval is a crime?
No. The office declined that question, explaining it depended on factual issues and no specific criminal statute was identified, so it fell outside the opinion process.

Background and statutory framework

Article 59.06 of the Code of Criminal Procedure, adopted by Acts 1989, 71st Legislature, 1st Called Session, chapter 12, and effective October 18, 1989, governs the disposition of forfeited property. Subsection (d) allows a law enforcement agency or the attorney representing the state to spend forfeiture proceeds after submitting a detailed budget to the commissioners court or a municipality's governing body, makes expenditures subject to the article's audit provisions, and bars the commissioners court from using an award to offset the agency's or attorney's regular salaries and allowances. It then provides that the head of the agency or the attorney "may not use the existence of an award to increase a salary, expense, or allowance for an employee of the attorney or agency who is budgeted by the commissioners court or governing body unless the commissioners court or governing body first approves the expenditure." The opinion read that language to make any additional compensation to a budgeted employee in the prosecutor's office contingent on commissioners court approval. (The opinion noted that the pre-1989 forfeiture provisions had been in the Texas Controlled Substances Act, former article 4476-15, V.T.C.S., later codified in the Health and Safety Code and then repealed and replaced by articles 59.02, 59.05, 59.06, and 59.08; see Attorney General Opinion JM-678 (1987) and State v. Garcia, No. 04-89-00194-CV (Tex. App.-San Antonio Oct. 3, 1990) (unreported).)

The constitutional analysis rested on article III, section 53 of the Texas Constitution, which prohibits granting extra compensation to a public officer, agent, servant, or contractor after the service has been rendered. Bonuses for achievement are compensation for services already performed. The opinion relied on Attorney General Opinion JM-313 (1985), which had concluded that a prosecuting attorney could not pay bonuses from the "hot check" fund even though article 53.08 of the Code of Criminal Procedure (now article 102.007) gave the prosecutor sole discretion over that fund's use for salaries and expenses. The rule the opinion drew from that authority, and from Attorney General Opinions JM-459 (1986), H-786 (1976), and H-402 (1974), was that a bonus may be paid to a county employee only if the commissioners court approved the bonus plan as part of compensation before the services were rendered.

Citations

Constitutional and statutory authorities:

• Code of Criminal Procedure art. 59.06, and § (d) (disposition of forfeited property; budget submission and commissioners court approval for compensation increases)
• Tex. Const. art. III, § 53 (prohibition on extra compensation for services already rendered)
• Code of Criminal Procedure art. 53.08 (now art. 102.007) ("hot check" fund)

Case:

• State v. Garcia, No. 04-89-00194-CV (Tex. App.-San Antonio Oct. 3, 1990) (unreported)

Prior Attorney General opinions referenced:

• Attorney General Opinion JM-313 (1985) (no bonuses from the "hot check" fund; article III, § 53)
• Attorney General Opinion JM-678 (1987) (prior forfeiture provisions under the Controlled Substances Act)
• Attorney General Opinions JM-459 (1986), H-786 (1976), and H-402 (1974) (bonus allowed only if approved as compensation before services rendered)

Source

• Landing page: https://www.texasattorneygeneral.gov/opinions/jim-mattox/jm-1253
• Original PDF: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1990/jm1253.pdf

Original opinion text

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

December 10, 1990

Honorable John D. Hughes
County Attorney
Hood County Courthouse, Room 6
Granbury, Texas 76048

Opinion No. JM-1253

Re: Whether a prosecutor may use drug seizure funds to pay bonuses or increase salaries without approval of the commissioners court (RQ-2078)

Dear Mr. Hughes:

You ask whether a prosecuting attorney may use drug seizure funds to pay bonuses or increase salaries of employees without first obtaining the approval of the commissioners court. You also ask if it would constitute a violation of the criminal law if a prosecutor were to pay bonuses or salary increases to employees without having obtained the approval of the commissioners court.

Article 59.06 of the Code of Criminal Procedure, adopted by Acts 1989, 71st Leg., 1st C.S., ch. 12, § 1, at 14, and effective October 18, 1989, addresses the disposition of forfeited property.[Footnote 1] Section (d) of article 59.06 provides:

    Proceeds awarded under this Chapter to a law enforcement agency or to the attorney representing the state may be spent by the agency or the attorney after a budget for the expenditure of the proceeds has been submitted to the commissioners court or governing body of the municipality. The budget must be detailed and clearly list and define the categories of expenditures, but may not list details that would endanger the security of an investigation or prosecution. Expenditures are subject to audit provisions established under this article. A commissioners court or governing body of a municipality may not use the existence of an award to offset or decrease total salaries, expenses, and allowances that the agency or the attorney receives from the commissioners court or governing body at or after the time the proceeds are awarded. The head of the agency or attorney representing the state may not use the existence of an award to increase a salary, expense, or allowance for an employee of the attorney or agency who is budgeted by the commissioners court or governing body unless the commissioners court or governing body first approves the expenditure. (Emphasis added.)

You advise that bonuses are given for achievement to employees and that employees are paid from budgeted county funds.

Article 59.06(d) expressly provides that an attorney representing the state may not use drug forfeiture funds to increase a "salary, expense, or allowance for an employee of the attorney or agency who is budgeted by the commissioners court . . . unless the commissioners court . . . first approves the expenditure." We believe that the payment of any additional compensation to an employee in the prosecutor's office who is budgeted by the commissioners court is contingent upon the commissioners court's approval.

In light of your relating that bonuses are given for achievement, there is also a constitutional prohibition relevant to their payment. Bonuses for achievement are compensation for services rendered. Attorney General Opinion JM-313 (1985) concluded that a prosecuting attorney may not pay bonuses from the "hot check" fund despite the fact that article 53.08 of the Code of Criminal Procedure (now article 102.007 of said code) permits the prosecuting attorney sole discretion in using such funds to defray salaries and expenses in his office. It was noted that article III, section 53, of the Texas Constitution prohibits the paying of extra compensation to a public officer, agent, servant or contractor for services after they have been rendered. A bonus may be paid to a county employee only if the commissioners court has approved the bonus plan as part of compensation before the services are rendered. See Attorney General Opinions JM-459 (1986); H-786 (1976); H-402 (1974).

You also ask if it would constitute a violation of the criminal law if a prosecuting attorney uses drug seizure funds to pay bonuses or salaries under the circumstances you have related without having obtained the approval of the commissioners court. You do not refer to a specific provision of criminal law. The resolution of whether the circumstances you have related constitutes a violation of any provision of the criminal law involves the determination of factual issues and does not come within the province of the opinion process.

                   SUMMARY

      The payment of any additional compensation from the drug forfeiture funds to employees in the prosecutor's office whose salaries are budgeted by the commissioners court is contingent upon approval of the commissioners court. Payments for services rendered in the form of bonuses are prohibited by article III, section 53, of the Texas Constitution, unless the bonus plan is approved as part of a compensation before the services are rendered.

                               JIM MATTOX
                               Attorney General of Texas

MARY KELLER
First Assistant Attorney General

LOU MCCREARY
Executive Assistant Attorney General

JUDGE ZOLLIE STEAKLEY
Special Assistant Attorney General

RENEA HICKS
Special Assistant Attorney General

RICK GILPIN
Chairman, Opinion Committee

Prepared by Tom G. Davis
Assistant Attorney General

Footnote 1: Forfeiture provisions prior to the 71st Legislature were contained in article 4476-15, V.T.C.S., the Texas Controlled Substances Act. See Attorney General Opinion JM-678 (1987). The Texas Controlled Substances Act was codified as part of the Health and Safety Code (effective September 1, 1989). See Health & Safety Code, Acts 1989, 71st Leg., ch. 678, § 1, at 2230. This was a non-substantive codification. However, each of the codified forfeiture provisions was repealed, effective October 18, 1989. See Acts 1989, 71st Leg., 1st C.S., ch. 12, § 6, at 21. New statutes dealing with the same subject matter, which are substantially different from the repealed Controlled Substance Act provisions, were enacted as articles 59.02, 59.05, 59.06 and 59.08 of the Code of Criminal Procedure. Id. § 1. See State v. Garcia, Docket No. 04-89-00194-CV, Tex. App. - San Antonio, October 3, 1990 (unreported).