Could a Texas county attorney hire and pay an investigator from the hot check fund without commissioners court approval?

Texas AG Opinion JM-738: Hiring an Investigator with Hot Check Funds

Plain-English summary

The Shelby County Attorney asked whether he could hire an investigator and set the investigator's salary without commissioners court approval when the salary would be paid entirely from fees collected under article 53.08 of the Code of Criminal Procedure.

The Attorney General concluded that commissioners court approval was not required. Article 53.08 placed hot check fees in a special county-treasury fund administered by the county attorney, district attorney, or criminal district attorney. It allowed expenditures at the prosecutor's sole discretion, limited to the salaries and expenses of the prosecutor's office.

The opinion relied on earlier Attorney General opinions treating the fund as separate from other county funds and beyond commissioners court control. Although Government Code section 41.106(a) generally made prosecutor-set staff salaries subject to commissioners court approval, article 53.08 gave the prosecutor exclusive authority over this special fund. When the investigator's salary came solely from that fund, the county attorney could hire the investigator and set the salary without prior approval.

Currency note

This opinion was issued in 1987. 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

Could the county attorney hire an investigator without commissioners court approval?

Yes, under the facts presented. The opinion concluded that approval was unnecessary when the investigator's salary was paid solely from the article 53.08 hot check fund.

Could the county attorney set the investigator's salary without approval?

Yes. Because the special fund was administered at the prosecutor's sole discretion, the opinion concluded that the county attorney could both hire the investigator and set the salary without commissioners court approval.

Was the hot check fund treated like an ordinary county fund?

No. The opinion described it as a special fund held in the county treasury but segregated from other county funds, earmarked for the prosecutor's office, and placed under the prosecutor's administration.

Could the fund pay expenses unrelated to the prosecutor's office?

No. Article 53.08, as quoted in the opinion, limited expenditures to defraying the salaries and expenses of the prosecutor's office.

Background and statutory framework

Article 53.08 allowed a county attorney, district attorney, or criminal district attorney to collect a fee when the office processed a hot check under specified circumstances. The fees went into a special fund in the county treasury. The statute assigned administration of that fund to the prosecutor, made expenditures subject to the prosecutor's sole discretion, and restricted the money to office salaries and expenses.

Government Code section 41.102 authorized a prosecutor to employ investigators and other personnel needed for the proper and efficient operation of the office. Section 41.106(a), however, stated that the prosecutor's power to set staff salaries was subject to commissioners court approval. The opinion resolved that tension by following Attorney General Opinions MW-439 and JM-313, which treated article 53.08 as granting exclusive control over the hot check fund and allowing staff expenditures without prior commissioners court authorization.

Citations and references

Statutory authorities:

• Code of Criminal Procedure article 53.08 (hot check fee fund)
• Government Code section 41.102 (prosecutor authority to employ office personnel)
• Government Code section 41.106(a) (salary setting and commissioners court approval)
• Articles 2368a and 1659a (county purchasing provisions discussed in the quoted prior opinion)

Case:

• Ex parte McIver, 586 S.W.2d 851 (Tex. Crim. App. 1979) (express enumeration and exclusion principle)

Source

• Landing page: https://www.texasattorneygeneral.gov/opinions/jim-mattox/jm-0738
• Original PDF: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1987/jm0738.pdf

Original opinion text

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

THE ATTORNEY GENERAL
OF TEXAS

July 6, 1987

Honorable Gary W. Rholes
Shelby County Attorney
104 Church Street
Center, Texas 75935

Opinion No. JM-738

Re: Authority of a county attorney to hire an investigator without approval of the commissioners court, where payment will be made solely from funds collected pursuant to article 53.08 of the Code of Criminal Procedure

Dear Mr. Rholes:

You ask about the authority of a county attorney to hire an investigator without approval of the commissioners court when payment of the investigator's salary will be made solely from funds collected pursuant to article 53.08 of the Code of Criminal Procedure.

You note that funds collected under article 53.08 are to be expended "at the sole discretion of the attorney" and that section 41.102 of the Government Code provides that a prosecutor "may employ . . . investigators . . . and other office personnel that in his judgment are required for the proper and efficient operation and administration of the office." Your concern is prompted by section 41.106(a) of the Government Code which allows the prosecuting attorney to fix the salaries of investigators and other office personnel "subject to the approval of the commissioners court."

Attorney General Opinion MW-439 (1982) addressed the question of expenditures by a criminal district attorney from the fund established by article 53.08. It states:

Article 53.08 of the Code of Criminal Procedure authorizes a county attorney, district attorney, or criminal district attorney to collect a fee if his office processes a hot check under certain circumstances. It further provides that:

(e) Fees collected under this article shall be deposited in the county treasury in a special fund to be administered by the county attorney, district attorney, or criminal district attorney. Expenditures from this fund shall be at the sole discretion of the attorney, and may be used only to defray the salaries and expenses of the prosecutor's office. . . . (Emphasis added).

This statute creates a special fund which is in the county treasury, but which is segregated from other county funds and earmarked for a specific purpose. More importantly, the statute states that the fund is to be administered by county attorneys, district attorneys, and criminal district attorneys, and that, within the limits set out therein, expenditures from the fund are to be made at their sole discretion. The express enumeration of particular persons or things in a statute is tantamount to an express exclusion of all others. Ex parte McIver, 586 S.W.2d 851 (Tex. Crim. App. 1979). Thus, by virtue of the express language of the statute, the hot check fund is explicitly placed beyond the reach of the commissioners court.

By its terms, article 2368a applies only where a county acts "through its Commissioners Court." It follows, in our opinion, that the statute is not triggered unless, in making a specific purchase, a county acts through its commissioners court. Article 1659a does not contain this precise language, but it does state that contracts for the purchase of supplies and materials are to be awarded to the party who "in the judgment of the Commissioners Court" submits the lowest and best bid. This is sufficient to convince us that, like article 2368a, article 1659a does not come into play where a commissioners court is not involved with the purchase in question.

We have noted that article 53.08 gives the exclusive right to administer the hot check fund, and to make purchases from it, to county attorneys, district attorneys, and criminal district attorneys. Because commissioners courts are without any right to administer the fund or to be involved in making expenditures from it, we conclude, for the reasons set forth above, that articles 2368a and 1659a are inapplicable in this purchasing context. In this respect, it should be noted that to conclude that these statutes are applicable is to give commissioners courts an indirect means of controlling the fund, a result contrary to the express terms of article 53.08 and, therefore, to the legislature's intent. A commissioners court could, for example, refuse to accept any or all bids in a particular instance and thus interfere with the exclusive right of the designated individuals to administer the fund and to determine when, for what purposes, and under what circumstances expenditures will be made from it.

Attorney General Opinion JM-313 (1985) expressly states that the prosecuting attorney may make expenditures from the hot check fund to hire staff without the prior authorization of the commissioners court. Since article 53.08 gives the exclusive right to county attorneys, district attorneys and criminal district attorneys in administering the fund to defray the salaries and expenses of the prosecutor's office, it is our opinion that you may hire an investigator and set his salary without approval of the commissioners court where payment of the salary is made from such fund.

SUMMARY

Approval of the commissioners court is not required for a county attorney to hire an investigator and set his salary where the expenditure for same is derived solely from funds collected under article 53.08 of the Code of Criminal Procedure.

Very truly yours,

JIM MATTOX
Attorney General of Texas

MARY KELLER
Executive Assistant Attorney General

JUDGE ZOLLIE STEAKLEY
Special Assistant Attorney General

RICK GILPIN
Chairman, Opinion Committee

Prepared by Tom G. Davis
Assistant Attorney General