What could a Texas prosecutor pay from an article 53.08 hot-check fund, and did the commissioners court have to approve each expense?

Texas AG Opinion JM-313: Hot-Check Fund Expenses

Plain-English summary

JM-313 addressed a special county-treasury fund made from fees collected in bad-check matters and administered by the county attorney, district attorney, or criminal district attorney. The opinion stated that article 53.08 “authorizes the county attorney, district attorney, or criminal district attorney ... to collect fees from persons who have passed ‘bad checks’ and establishes a special fund in the county treasury in which the fees must be deposited.” Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1985/jm0313.pdf

The prosecutor did not need commissioners-court approval before spending from the fund. The opinion's summary stated that the administering attorney “need not obtain the approval of the commissioners court prior to making expenditures from the fund.” Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1985/jm0313.pdf

The fund was not limited to costs directly tied to bad-check collection or prosecution. JM-313 said: “Expenditures from the special fund are not limited to the costs which are related solely to the prosecution and collection of bad checks; they may be made for the whole prosecutor's office.” Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1985/jm0313.pdf

That discretion remained limited to official salaries and expenses. The summary stated: “Outlays from the fund are, however, limited to defraying the salaries and expenses of the prosecutor's office.” Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1985/jm0313.pdf

The official landing page records later treatment of the opinion under the heading “Subsequent Treatment” with the statement “Affirmed by JM-967” Source: https://www.texasattorneygeneral.gov/opinions/jim-mattox/jm-0313

Currency note

This opinion was issued in 1985. 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.

Common questions

Did each expenditure require commissioners-court approval?

No. JM-313 stated: “The attorney administering the fund need not obtain the approval of the commissioners court prior to making expenditures from the fund.” Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1985/jm0313.pdf

Could the fund support parts of the office not assigned to bad-check cases?

Yes. The opinion concluded: “Outlays may be made for the whole prosecutor's office.” Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1985/jm0313.pdf

Could the prosecutor pay bonuses for work employees had already completed?

No. The opinion's summary said that “no bonuses, salary supplements, or allowances may be made which operate as additional compensation to an employee after the employee's services have been rendered.” Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1985/jm0313.pdf

Could the fund reimburse an employee's legitimate work expense?

Yes. The summary stated: “An employee may, however, be reimbursed for legitimate expenses incurred in the performance of the employee's official duties.” Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1985/jm0313.pdf

Could the fund buy office equipment or supplies?

Yes, when reasonably necessary for official duties. JM-313 said the attorney could pay for “office equipment and supplies if they are reasonably necessary to the performance of the official duties of the prosecutor's office.” Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1985/jm0313.pdf

Could the fund pay for grand-jury meals or framed photographs?

No. JM-313 stated that these items “are clearly not expenses of the prosecuting attorney's office” and concluded that “the attorney lacks the authority to make such expenditures.” Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1985/jm0313.pdf

Did the prosecutor have to spend the entire balance each fiscal year?

No. The opinion stated: “A positive balance may be carried from one fiscal year to the next,” while remaining limited to office expenses. Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1985/jm0313.pdf

Background and statutory framework

Article 53.08(e) placed expenditures within the attorney's “sole discretion,” but permitted the money to “be used only to defray the salaries and expenses of the prosecutor's office.” Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1985/jm0313.pdf

JM-313 treated the money as public funds despite the prosecutor's control. Quoting an earlier opinion, it stated that article 53.08 “does not convert them into non-public funds” and that the funds “are collected for the use of the state and county.” Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1985/jm0313.pdf

The prosecutor's discretion therefore remained subject to other laws governing county money. JM-313 stated: “The attorney must administer the fund within the confines of laws applicable to the use of county funds.” Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1985/jm0313.pdf

Citations and references

• Code of Criminal Procedure article 53.08
• Article 332a, V.T.C.S.
• Texas Constitution article III, sections 52 and 53
• Attorney General Opinions MW-188, MW-439, and MW-584
• Attorney General Opinion JM-967, affirming JM-313

Source for JM-313: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1985/jm0313.pdf

Source for subsequent-treatment notation: https://www.texasattorneygeneral.gov/opinions/jim-mattox/jm-0313

Source

• Landing page: https://www.texasattorneygeneral.gov/opinions/jim-mattox/jm-0313
• Original PDF: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1985/jm0313.pdf

Original opinion text

The Attorne,y General of Texas
May 1, 1985
JIM MATTOX
Attorney General

Supreme Cowl Building Honorable Oscar H. Ilsuzy Opinion No. JM-313
P. 0. Box 12548
Chairman
Aus!in. TX. 70711.2348 Committee on Jurisprudence Re: Use of the “bad check fund” 512,4752501 Texas State Senote under article 53.08 of the Code Telex 9101074-1367 Telecopier 512/4754266
P. 0. Box 12068, Capi.tol Station
of Criminal Procedure by a dis-
Austin, Texas 78711
trict attorney, county attorney,
or criminal district attorney
714 Jackson, Suite 700
Dallas, TX. 75202.4506
Dear Senator Mausy:
2141742.8944

Article 53.08 of the Code of Criminal Procedure authorizes
the
4824 Alberta Ave.. Suite 160 county attorney, d:lstrict attorney, or criminal district attorney El Paso. 7X. 79905-2793 [hereinafter attorney] to collect fees from persons who have passed 91515333404 “bad checks” and est.a.blishes a special fund in the county treasury in
which the fees must be deposited.
Under article 53.08, the fund is
’ Texas. Suite 700 administered by the attorney rather than by the county commissioners I, ,ton, TX. 77002CNll court. You ask r;everal questions about the propriety of the 713/223-5886 attorney’s making specific types of expenditures from the fund. Most
of the disbursemen,:s about which you inquire relate to specific
expenses of the prmecutor’s office, including payment for office
006 Broadway. Suits 312
Lubbock. TX. 79401.3479 supplies and equipment, for the salaries of various employees, and for
0061747.5238 certain “bonus” expc!nse allowances and salary supplements, You also
ask generally wheth’zc the attorney must obtain the approval of the
commissioners court prior to making expenditures from the fund. Both
4309 N. TsnIh. Suite S
this general question and your specific questions, however, depend
McAllen. TX. 78501.1685
5121682-4547 upon the scope of the statutory authority granted to the attorney by
article 53.08. Accordingly, a basic explanation of the provision must
precede our response ‘to your specific
questions.
200 Main Plaza. Suite 400
Son Antonio. TX. 78205-2797
Article 53.08 p,rovides, in part:
512m5.4191

(e) Fetzs collected under this article shall be
An Equal OpportunitYl deposited :in the county treasury in a special fund
Allirmative Action Employer to be a6$nistered by the county attorney.
district at’torney, or criminal district attorney.
Expenditur@ from this fund shall be at the sole
discretion of the attorney, and msy be used only
to defrfy ?he salaries and expenses of the pro- secutor s l>.ffice, but in no event may the county attorney, &trict attorney, or criminal district attorney sceplement his or her own salary from this fund. Nothing in this Act shall be construed

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Honorable Oscar Ii. Hauty - Page 2 (JM-313)

         to decrease    the ,cotal  salaries,      expenses,      and

allowances which a prosecuting attorney’s office is receiving at the time this Act takes effect.
(Emphasis added).

TWO aspects of this section are relevant to your inquiry: the creation of a special fund and the grant of expenditure power to the attorney.

    Several prior opinions          of this office      dealt with article      53.08.

See Attorney General Opinior,s W-584, IN-439 (1982); MU-241, IN-188
-00,. Controversies over interpretation of the act stemmed from article 53.08’s directive thzlt: the fund is “to be administered by the county attorney, district attorney , or criminal district attorney” and that “[elxpenditures from thI,s fund shall be at the sole discretion of the attorney. . . .” Ordinnrily, expenditures of county funds are controlled by the county commissioners court. In question 18, you ask
whether the attorney
must obtain the approval of the commissioners
court before making expenditures
from the fund. Three prior opinions
of this office provide neclessary background information and are significant to the scope of the attorney’s authority over the fund.

Attorney General Opini~,n MW-188 (1980) concluded that county auditors may prescribe accounting and control procedures for all fees collected pursuant to artic1.e 53.08 despite the fact that the fees were properly to be deposl.t,ed in a special fund in the county treasury. The opinion found

         no    conflict      between     the  district       attorney’s

limited statutory discretion to determine the purpose for which zxpenditures from the fund are
to be made and th; auditor’s statutory pover to
prescribe accounting and control procedures for
making deposits ;uld disbursements. (Emphasis
added).

Thus, the attorney has “limi,:ed statutory discretion” over the nature of expenditures from the fund.

Some confusion may have arisen from the language in Attorney
General Opinion MW-439 (1982). The opinion concluded that the statutes which require comp<rtitive bidding prior to certain county expenditures are not applicable to the special fund created by article 53.08 because the comp&itl,ve bidding statutes apply only vhen a county acts through its cotmlissioners court. In Attorney General Opinion MW-439, this office! stated that “the hot check fund is explicitly placed beyond the reach of the commissioners court.” The rationale for the conclusion was that

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Honorable Oscar H. Mauzy - Page 3 (m-313)

article 53.08 glws the exclusive right to administer the hot check fund , and to make purchases from it, to county attorneys, district attorneys, and crlmlnal district attorneys.

We emphasize that this opinion does not Indicate that expenditures by a county officer never fall wlthln the scope of statutes vhlch contain express refereoces to actlcns taken by the commissioners court. Because county funds have been traditionally admlnlstered and expended by the cowalssioners court, the legislature’s reference to actions taken by the commissioners court may, in some instances, be Intended to cover generally the expend:iture and handling of “county funds.”

Despite the broad langw8e In Attorney General Opinion MW-439, this office later held, in ,U:torney General Opinion MW-584 (1982), that certain reporting statut.es are applicable to funds collected pursuant to article 53.08. The opinion indicated that
although article 53.08 permits a county attorney
to determine, w1thj.n certain limitations, the
purposes for which the funds may be expended, It does not convert t:hem into non-public funds.
Indeed, the statute specifies that the funds may be used ‘only to deE.cay the salaries and expenses of the prosecutor’s office,’ Inarguably a public purpose. . . . [S]w:h funds are collected for the use of the state ani; county. . . .

Consequently , the opinion concluded that the attorney administering the fund Is required to report the collection and dlsbursement,of all funds collected pursuant to .artlcle 53.08 in accordance with the directives of certain report1r.g statutes.

Thus. the answer to questzion number 18 is clear. The attorney administering the fund need ‘lot obtain the approval of the commis- sioners court prior to making expenditures from the fund. Neverthe- less, as stated In Attorney General Opinions MU-188 and MU-584, this statutory discretion Is subjec:t to certain limitations. The attorney must administer the fund within the confines of laws applicable to the use of county funds.

You ask the following specific questions:

1. May the county attorney, dlstrlct attorney, or criminal district attorney [hereln- after ‘the attorney’ :I make expenditures from the
fund to supplement the salaries of assistant
prosecutors or other employees? Is the payment of salary supplements ,I:istlnct from expenditures to

Honorable Oscar H. Mauzy - Page 4 (JM-313)

defray the salaries of assistant prosecutors or other employees?

2. Is there a salary schedule for assistant prosecutors or other employees of the attorney?
Do payments above the scheduled level defray the salary of the employee7

            3. May the attorrley         make expenditures      from

the fund to defray t!w salaries
and expenses of
the entire prosecut#zcs office, or are such expenditures limited to defraying the salaries and
expenses of asslstia,t prosecutors or other
employees Involved in the prosecution
of offenses
enumerated in article 53.08(a)?

4. May the attowey make expenditures from the fund to pay for Christmas bonuses, or other types of bonuses, fcr assistant prosecutors or other types of employees?

5. May the attorney make expeadlturee from the fund to provide flxc automobile and/or parking allowances for assistant prosecutors or other employees?

6. May the attolriey make expenditures from the fund to rent or purchase office equipment? Is the use of this equipment limited to assistant prosecutors and other employees Involved in the prosecution of offenses enumerated in article 53.08(a)?

7. May the attorrley make expenditures from the fund to pay the expenses of assistant pro- secutors who attend continuing legal educational programs? Must these programs relate to the prosecution of offenses enumerated in article 53.08(a), or may programs of any subject matter be funded?

             8. Are      asslstan t     prosecutors      or    other
         employees      receiving       or  benefltting      from   any

;expenditure from the fund required to pay federal, state, or local lnccm,e taxes, including Social Security, on such amcr.nta? Must these taxes be withheld from the ass:tstant prosecutor’s or other employee’s paycheck?

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Honorable Oscar Ii. Mauzy - Page 5 (~~-313)

9. Is the atwrney required to spend the entire fund, or may he carry a positive balance from one fiscal yew: to the next? If the entire fund Is not expendsad. must the balance be turned over to the county at the end of the fiscal year?

10. Hay the [at.torney] make expenditures from the fund to hire staff whose positions are not authorized by the coarmissloners court? _,

11. May the attorney make expenditures. from the fund to pay for s computerized office security system?

12. Hay the attorney make expenditures from the fund to pay for the $nstallatlon of new carpet ” in the offices of the attorney and the attorney’s staff?

13. May the attorney make expenditures from the fund to pay. dues of the State Bar of Texas of assistant prosecutors employed by the’attorney?

14. May the attorney make expenditures from the fund to pay the college tuition of his
secretary?
,.

15. May the attorney make expenditures from the fund to pay :lor ‘management retreats’ for members of his staff on dude ranches in the Texas hill country?

16. May the attorney make expenditures from the fund to pay fcr coffee, doughnuts, or lunch for members of the g.rand jury?

17. May the attorney make expenditures from the fund to pay’ for framed color photographs of the grand jury for wmbers of the grand. jury?

Because many of these questions are int~errelated and .because there are a number of the:n, for clarity the questions vi11 be discussed by topic.

Questions 3, 6,. snd 7 each raise the Issue of whether the fund
may be used to defray costs related to the entire office of the prosecuting attorney. .or to d,efray only oosts attributable to the portion of.the offlce,devoted to tha prosecution and collection of bad checks as enumerated In art:lcl.e 53.08. Quest.lon 9 deals with the disposition of excess funds. What constitutes “excess” funds depends,

‘?. 1431

--

honorable Oscar 8. Nauzy - Page 6 ml-313)

in part, upon the scope of expenditure pover. The only guidance provided 01 article 53.08 with regsrd to this quertion appears lo section (8).

    Section      (e) of article     ,53.08 prwides.      in part:

Expenditures from ,this fund . . . usy be used only to defray the salaries and expenses of the prosecutor’r off+, . , , @upbasis added)

The fuudamsntal rule governing the interpretation of statutes is
to give effect to the inteue:Lou of the legislature. City of Sherman v. Public Utility Cowissio~, 643 6.W.Zd 681, 684 (Tex. 1983). To determine the leglslsture’o :Lntent and the purpose for a particular provision, it ir proper to conrider the history of the subject matter involved. the problsu to be rauedied. snd the ultiuate purposes to be sccouplished. &

   Ths legislative        hlrtory    sod bill    snslpsia      of article        53.08

indicate that the prwisian vas intended to make the bad check prosecution and collection process self-supporting. This fact suggests that expenditures were intended to be cede only for expenses relsted to tbs prosecution and collection of bad cbec’ls. The collecting of bad checks, btnrever, is an additioual function for the attorney’s office. ths cost of vbich xsy not alvays be clearly lpportfousbls.
The Fiscal Nots of the :Asgislative Budget Board reveala that

[i]t 5s not possib:ltr became of lack of bssic data to estimate the additional revenue vhlch vould be collectsd by county governments should the bill be enacted.

Bill Aualysis to Eouse Bill No. 825, Fircal Note prepared for Cosmittee ou Criuiusl Jurisprudence, filed in Bill File to Eouse Bill No. 825, 66th Lsg.. Lsgislatlve Reference Library (1979). Thus, it is possible that ths leglslsttm did not anticipate thst the fuud vould svsu cwsr the cost of procelming and collecting checks or bank drafts pursuant to srticle 53.08, rw:h less provide s source of surplus funds for the state or for the counties.

    Nothing in the lsugusge         of tbs act. bovever, expressly          limits

expenditurss to the costs of ‘actuslly procsssing and collecting bad checke . The language of rmtioxi (s) is brosd. &ester statutory guidance thsn exlrts im srtlc:Le 53.08 is necessary to s finding of au iuplied liuit. The phrase “prosecutor’s offics” in section (e) suggerts the office in peusrsl, ths vhole office. The prlemry source
of the intent and meaninng of a strtuts
is obtained from the actusl
language of ths stetuts. City of Sherman v. Public Utilite

p. 1432

• -.

Honorable Oscar H. Hauzy - Page 7 (J-M-313)

Commission, 643 S.W.Zd at 684. Because of the broad language used in section (e) and because of the lack of any express or implied limit on expenditures from the fund to t.b.e costs of effecting article 53.08, we conclude that expenditures are not limited to the costs which are related solely to the prosewtion and collection of bad checks. Outlays may be made for the whole prosecutor’s office.

   Expenditures       from the special     fund are, however, limited             to de-

fraying “the salaries and expznsea of the prosecutor’s office.” In other words, all expenditures from the fund must relate to the official business of the prosewtor’s office. There is no requirement that the attorney spend the entire fund; rather, the attorney may spend no more than the amount which is reasonably necessary to defray the salaries and expenses of the office. Any surplus must remain in the fund, subject to the lee,islature’s further direction for dis- position. A positive balance may be carried from one fiscal year to
the next but such funds remair. subject to the limitation to office
expenses. Article 53.08 does not require the attorney to pay any
excess in the special
fund over to the general fund of the county.
The attorney must, however, cwnply with various reporting statutes.
See Attorney General Opinion MU-584 (1982) (and statutes cited therein).

  Analysis of particular      expenditures    is two-fold:      (1) whether the

expenditure is related to the official business of the office, and (2) whether any other constitutional or statutory provisions prohibit the expenditure. The particular expenditures in question will be discussed in five separate cawgories: (I) hiring of new personnel. (II) the payment of salaries and of monetary salary supplements or bonuses, (III) the payment of “in kind” bonuses, (IV) expenditures for equipment and supplies, and (‘J’) expenditures for the members of the grand jury. The propriety o:f particular expenditures is dependant upon factual conclusions which we do not address here,

I. Hiring of New Personnel. Article 332a. V.T.C.S., applies to county attorneys, district attq%eys. and criminal district attorneys. The act addresses various aspects of personnel matters and expanses of the prosecuting attorneys’ off:lces. Section 2 of the act provides:

              The prosecuting       attorney      may employ         such
         assistant      prosecuting    attorneys,       investigators,

secretaries. and othw: office personnel as, In his for the proper and administration of the office. (Emphasis added).

Although other sections of axticle 332a require commissioners court approval, this provision does not. Thus, in response to question 10, the attorney may make expenditures from the fund to’hire staff without the prior.authorization of the commissioners court.

p. 1433

Honorable Oscar H. Mauzy - PaI+ 8
(JM-313)

    II. Payment of salaries          and of monetary salary supplements              or

bonuses. Questions 1, 2. andIt each deal with the payment of salaries and of certain salary supplements to assistant prosecutors and other
employees of the prosecutor’s office. Article-53.08, in subsection
(e) . expressly authorizes and limits expenditures from the special fund “to defray the --salar:les and expanses of the prosecutor’s
office. . . .‘I (Emphasis addecg. Thus, the prosecuting attorney may
clearly pay the salaries of I:he employees of the prosecutor’s office
from the fund. Subsection l:e) specifically prohibits the county
attorneys, district attorney!%,, and criminal district attorneys from supplementing their own salr.ries from the fund. The propriety bf salary supplements and bonuses for the employees of the attorney’s office depend upon the terms o:I other statutory provisions.

Article 3912k, V.T.C.S., concerns the salaries of numerous county
employees. Article 3912k does not apply, however, to the employees of a district attorney, county ,lttorney, or criminal district attorney. See Attorney General Opini’>ns R-908 (1976); R-656 (1975). The employees of all three types of prosecuting attorneys fall under the provisions of article 332a, V.T.C.S. See Attorney General Opinions H-922 (1977); E-908 (1976). Attorney General Opinion H-908 reasoned that article 332a is a more s;?ecific statute which was enacted later in time than article 3912k.

Article 332a. in section :5, provides:

Salaries of asc;l.stant prosecuting attorneys,
investiaators. secretaries and -
other off& person& shall te fixed by the prosecuting attorney, subject ?o the approval of the com- missioners court of the county or the counties composing the district. (Emphasis added).

Thus, in response to part of question 2, the existence of any “salary schedule” depends upon the salaries set by the various attorneys’ offices. Because the attorns,y’s power in article 332a is “subject to the approval of the commissioners court,” some clarification of our response to question number 16 is necessary.

As indicated, article 332a addresses various que’stions relating
to personnel matters and to other expenses of the attorney’s office. Sections 5 and 6 of the act deal with salaries and travel expenses, respectively, and each section expressly requires the “approval” of the commissioners court. In contrast, article 53.08 of the code places expenditures from the fund within the “sole discretion” of the prosecuting attorney. Article 332a was enacted in 1973, see Acts 1973. 63rd Leg., ch. 127, at 275, whereas article 53.08 wasadded to
the Code of Criminal Procedure in 1979.
See Acts 1979, 66th Leg., ch.

734. 51. at 1802. Therefoc’e. article53.08, as the more recent
         expression of the legislature’s intent , supersedes article 332a to the

Honorable Oscar H. Hauty - Page 9 (JM-313)

extent of conflict, &, with regard to expenditures from the special fund. To the extent that sa:Lary increases and office expenses may be paid from the special furd, the attorney need not obtain the commissioners court’s approval.

   Neither article       53.08 r,or article        332a. however, addresses        the

question of salary supplements or bonuses. Clarification of the distinction between salary “increases” and salary “supplements” 16 necessary st this point. We assume that by “supplements” you mean payments for work that has already been performed by an employee. The two differ. See generally Attorney General Opinion MW-459 (1982). Salary increases are within the discretion of the prosecuting attorney by virtue of section 5 of article 332a. Although the provision requires the “approval of the commissioners court ,I’ see Attorney General Opinions H-908 and H.-922, to the extent that salary increases
may be paid from the specl.al fund, the attorney need not obtain
commissioners court approval. The commissioners court may not. however, reduce the amount already authorized for salaries in order to counteract, and thus interf e,ce, with the attorney’s “sole discretion” over the fund. See Attorney General Opinion H-922 (1977); see also Code Grim. Pro=‘;-art . 53.1:3(e) (“Nothing in this Act shall be construed to decrease the total salaries . . . which a prosecuting attorney’s office is receivirg at the time this Act takes effect.“).

  Nevertheless,       salary      increases          or     supplements    cannot      be

retroactive. Article III, section 53 of the Texas Constitution provides, in part:

The Legislature ,shall have no power to grant, or to authorize an;r county or municipal authority to grant, any extra, compensation, fee or allowance to a public officer, agent, servant or contractor, after’service has teen rendered, or a contract has been entered into, and performed in whole or in part. . . .

See also Tex. Const. art. III, 044. Section 53 prohibits the retro- active payment of salary bonuses, supplements, or other salary increases by political subdivisions. Fsusett ‘I. King, 470 S.W.2d 770 (Tex. Civ. App. - El Paso 1971, no writ); Pierson v. Galveston County, 131 S.W.2d 27 (Tex. Civ. A,pp. - Austin 1939, no writ); Attorney
General Opinion H-11 (1973).
Even if district attorneys, county
attorneys, and criminal dizrtrict attorneys are not themselves a “county or municipal authority” for purposes of article III, section 53, the special fund created by article 53.08 is clearly comprised by county funds. See Attorney Ganeral Opinion MW-584 (1982). Thus, the attorney administering the special fund may not grant extra compensa- tion, fees or allowances to ;u\ employee after the employee’s servlces have been rendered.

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Honorable Oscar H. Hausy - Page 10 (JM-313)

In sum, with regard to questions 1, 2. and 4, the payment of
salary supplements to employeoa of the prosecuting attorney’s office is distinct from the payment of salaries. Although salary increases or supplements are authorized, payments, by whatever name, which compensate for past work performed by an employee of the office, are prohibited by the Texas Constit,ution.

III. Payment of “in kind” bonuses. In questions 5, 7, 13, 14,
and 15, you ask about expecaitures
from the fund to pay various
allowances and expenses to or for the employees of the attorney’s office. The preceding discussion about the constitutional prohibition against the payment of extra compensation to public employees after services have been rendered also applies to “bonuses” which are not directly related to salaries but which are intended or function as added compensation. For examI#le. in question 5 you ask about parking allowances. Paid parking may be a legitimate part of compensation, but when cash “parking allowances” are given directly to employees as a bonus after the employees’ services have been rendered, the payments subvert the purpose of article III. section 53. Some of the allowances about which you ir.q,uire appear to be added compensation; others fall within the category of reimbursement for expenses properly chargeable against the county.

    In general,       payments of allowances       and expenses     for public

employees must reasonably relz,t,e to the performance of the employee’s official duties. See Attorney General Opinions MW-116 (1979); E-1164 (1978); H-152, 8-m (1973); W-978 (1971). Article 53.08, in sub- section (e), authorizes the attorney to make expenditures from the fund only for “salaries and texpenses of the prosecutor’s office.” Moreover, article III. section 52 of the Texas Constitution expressly prohibits the use by a politi,cal subdivision of its public funds or credit for private purposes. State v. City of Austin, 331 S.W.2d 737
(Tex. 1960) ; Attorney General-Opinion
JM-220 (1984). An incidental
private benefit from the expenditure of public funds for a public purpose is not prohibited. E,arrington v. Cokinos, 338 S.W.2d 133 (Tex. 1960); Attorney General opinions JM-220 (1984); PM-251 (1980).

In question 5 you arik about “automobile and/or parking
allowances.” As indicated, parking for employees when they come to work may be a legitimate perquisite of employment. It is not, however, an expense incurred in the performance of the employee’s official duty. On the other hand, if the employee’s official duties require travel, an “automobile allowance” may be an expense of performing official duties. A,rticle 332a. la section 6, provides:

Assistant prosecuting attorneys and lnvestiga-
LOTS, in addition
to their salaries, may be
allowed actual anti necessary travel expenses incurred in the discharge of their duties, not to exceed the amount- fixed by the prosecuting

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Honorable Oscar H. Mauzy - PaI;e 11 (~~-313)

attorney and apprcved by the commissioners COUKt of the county 0,: the counties composing the district. All claims for travel expenses may be naid from the General Fund, Officers’ Salary Fund, or any other av$.lable -funds of the county.
(Emphasis added).

As discussed previously. article 53.08 of the code replaced. to the extent of conflict, the provisions in article 332a which require commissioners court approval. To the extent that legitimate expenses may be paid from the fund, the attorney need not obtain comnnissioners court approval.

  BY “automobile       allowance ,” we assume that you refer            to a set

amount of money paid at clz::taln intervals to defray the cost of operating a privately-owned automobile which is used in the conduct of the employee’s official duties. See Attorney General Opinions H-992 (1977); H-152 (1973). If the z of the employee’6 vehicle is necessary to the actual performance of the employee’s official duties, section 6 of article 332a tuthorizes the payment to assistant pro- secuting attorneys and investigators of “actual and necessary travel expenses incurred in the dis-harge of their duties.” Nevertheless, a flat rate automobile allowance which bears no relation to the number of miles actually driven on oEficia1 business is not authorized. -See Attorney General Opinion H-152 (1973).

Question 13 refers to tl,e payment of State Bar dues for assistant
prosecutors. In Attorney General Opinion MN-251 (1980), this office determined that a state agency may spend public funds to pay the notary license fees of its employees who provide notary public services as part of their duties. This did not constitute an uncon- stitutional grant of public funds for s private purpose because the expenditure was directly and substantially related to the performance of the agency’s governmental function. Although the payment of bar dues by assistant prosecutors may be necessary to the performance of the assistant’s duties, it is an expense related to the individual’s
profession rather than an “office expense.” A distinction must be
made between the minimum qualifications for public employment and
additional training and/or specialization for. additional duties. Accordingly, the attorney may decide to pay the State Bar dues of assistant prosecuting attorneys only as additional compensation, and not as an expense of the office. Opinions MN-276, MN-156 (1980) ; H-1042 =i55f+2&t7;;;) ;=:ef;;: (1966) ; C-506 (1965).

The same constitutional principles apply to the expenditures you
inquire about in questions 7, 14, and 15. Question 7 refers to expenditures from the fund to pay the expenses of assistant pro- secutors who attend continuing legal education programs. Such expenditures .are authorized :lnoofar as the programs are directly and

p. 1437

Honorable Oscar H. Msuzy - Pagl? 12 (JM-313)

substantially related to the performance of the office’s
governmental
functions. See Brazoria Count 537 S.W.Zd 89 (Tex. Civ.
APP, - Houstz[lst Diet.] 19716, * writ , Attorney General Opinions no
-=-=Y’
MW-251 (1980); H-1164, H-1133 (1978). As indicated previously, expenditures must relate to t‘ie duties of the prosecuting office but
are not limited to the specific prosecuting and collection functions
covered by article 53.08. I:> addition, when expenditures are made which involve potentially substantial incidental private benefits, article III, section 52 requires that conditions be attached to the expenditure to assure the use of public money for a public purpose.
Attorney General Opinion JM-2X (1984);
see Attorney General Opinions
JM-103 (1983); MW-423 (1982); MU-60 (1979). For example, the Brazorla County v. Perry case dealt with a deputy sheriff who attended a law enforcement officer’s training program at county expense. The deputy sheriff agreed to reimburse the county for the expense of the program if he did not remain in the enploy of the sheriff’s department for at least two years after completing the training program.

In question 14 you ask whether the attorney may make expenditures
from the fund to pay the co:l:tege tuition of his secretary. It is conceivable that certain coll”8e courses and training programs may be directly and substantially rel,ated to the performance of the part of the office’s governmental functions which the secretary performs. The payment of college tuition, however, for the general education of the
secretary is not authorized. On the other hand, if the college
tuition is limited to cours,es which train the secretary for a different position or additi,onal duties which are part of the performance of the office’s governmental function, the expenditure appears legitimate. The Tex;as Constitution, however, requires that the office attach contractual c.onditions to the expenditure which will assure that the office will rc:c.eive the full value of the expenditure, including the value of the expenditure as a “loan” to the secretary.

   In question     15, you refer       to “management retreats”       on dude

ranches in the Texas hill cowtry. It is conceivable that a legiti- mate training or continuing Yegal education program could be located in the Texas hill country. Nevertheless, if by “retreat” you do not refer to a formal training or education program, but rather an occasion merely to increase the morale and productivity of the attorney’s office, it may be nothing more than a private vacation at public expense. As such, it Eunctions as and is subject to the legal limits mentioned above which are applicable to additional compensa- tion. It must be a pre-established part of the employee’s compensa- tion.

In question 8 you inquire about the “federal, state, or local income” tax ramifications of t,hese “in kind” benefits. There is, of course, no state or local inccome tax in Texas. Questions about the federal income tax consequence of the receipt by individual employees of "in kind" bonuses should be addressed to the Internal Revenue

p. 1438

.
Honorable Oscar H. Mauzy - Page 13
(JM-313)

Service. We note, however, c:hat for some purposes, Texas law draws a distinction between expenses and compensation. See Attorney General Opinions JM-39 (1983); NW-391 (1981); -cf. MW-334 (1981).

       IV. Expenditures         for equipment and supplies.              In questions     6,
11. and 12 YOU ask about the propriety              of making exnenditures         from the
fund for various types of ec,uipment and suppli&.                   . Subsection      (e) of
article   53.08 expressly         provides   that expenditures        from the fund may
be used to defray           the “exI,enses      of the prosecutor’s         office.”      As

indicated previously, expendj,tures are not limited to the direct costs of effecting article 53.08, ‘>ut may be used to defray the expenses of
the entire prosecutor’s office. Nevertheless, expenditures must
directly relate to the official duties and functions of the pro-
secutor’s office. Consequently , the attorney may make expenditures
from the fund to pay for a cc~mputerired office security system and new carpet if those things are re.ssonably necessary to the performance of
the official duties of the p.rosecutor,s office. To the extent that
such expenditures can be made from the special fund, the approval of
the commissioners court need c.ot be obtained.

V. Expenditures for members of the grand jury. In questions 16 and 17 you ask whether the T’ttornev may make exnenditures from the fund to-pay for coffee, douf;tlnuts, iunch, and framed photographs for members of the grand jury. These are clearly not expenses of the
prosecuting attorney’s 0ff:lce. Compare Code Crim. Proc. 1038.
Consequently, totally aside E,rom the ethical considerations involved, the attorney lacks the authority to make such expenditures.

2, U M M A R Y

The county alztorney, district attorney, or criminal district attorney who administers the special “bad check” fund created pursuant to article 53.08 of ,:he Code of Criminal Procedure need not obtain th,e approval of the commissioners court prior to making expenditures from the fund.
Expenditures from t.he special fund are not limited
to the costs which are related solely to the
prosecution and collection of bad checks; they may be made for the whole prosecutor’s office.

Outlays from t’he fund are, however, limited to defraying the salaries and expenses of the prosecutor’s office. Although salary increases and pre-existing “in kind” forms of compensation are authorized, no l~onuses, salary supplements, or allowances may be made which operate as additional compensation to an employee after the employee’s services have been rendered. An employee may, however, be reimbursed for legitimate expenses

p. 1439

Ronorable Oscar H. Maury - Page 14 (JM-313)

incurred in the Performance of the employee’s official duties.

The attorney may make expenditures from the fund to pay for of:f:lce equipment and supplies if they are reasonablg, necessary to the performance of the official dut:les of the prosecutor’s office.
Expenditures for t!w benefit of members of the grand jury are not authorized.

JIM MATTOX
Attorney General of Texas

TOMGREEN
First Assistant Attorney Gener,al

DAVID R. RICHARDS
Executive Assistant Attorney Ceneral

RICK GILPIN
Chairman, Opinion Cormaittee

Prepared by Jennifer Riggs
Assistant Attorney General

APPROVED:
OPINION COMMITTEE

Rick Gllpin, Chairman
Jon Bible
Colin Carl
Susan Garrison
Jim Moellinger
Jennifer Riggs
Nancy Sutton

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