Who controls how Texas pretrial intervention fees are spent, and can they pay staff salaries?

Plain-English summary

Pretrial intervention lets a prosecutor agree to dismiss charges if a defendant meets certain conditions for a set period, and Texas authorizes a modest administrative fee, up to $500, tied to those programs. The Val Verde County auditor asked the AG who decides how that fee money is spent and whether it can be used to supplement the pay of an attorney or staff member who helps run the program, including for fringe benefits like retirement and health coverage.

The AG started with the structure of the statute. Pretrial intervention itself flows from prosecutorial discretion, and statutes leave most of the program's organization to the prosecutor. But the administrative fee is governed by Code of Criminal Procedure article 102.0121, which spells out the prosecutor's role narrowly: the district attorney, criminal district attorney, or county attorney may collect a fee not to exceed $500 to reimburse the county for expenses related to a defendant's program participation, and must deposit the fees in a special county-treasury fund "to be used solely to administer the pretrial intervention program." Critically, an expenditure from the fund "may be made only in accordance with a budget approved by the commissioners court." So while the prosecutor collects and deposits the fee and can provide budget information about how the fees should be used, the commissioners court, not the prosecutor, ultimately decides how the fund is spent. The AG analogized to a 1985 case holding that even where a prosecutor proposes employee salaries, the commissioners court can change them in the final county budget.

On whether the fund can pay employee compensation at all, the AG read the statute's purpose and language together. The fee reimburses the county for expenses of administering the program, and "administer" commonly means to manage or direct the conduct of the program. Because the time and labor of the attorneys and staff who run the program is likely a substantial part of the county resources expended to administer it, the AG concluded a court would likely treat compensation of those employees as a use "to administer the pretrial intervention program" that article 102.0121 authorizes. The AG cautioned that the fee is reimbursement, not a windfall, and cannot relieve the county of prosecutor-office expenses unrelated to the program. Whether a specific salary supplement, employee benefit, or particular form or amount of expenditure is allowed depends on the facts and is not something an AG opinion resolves, but the bottom line is that the fund may be used for an employee's salary, salary supplement, or benefit only to the extent the use is solely for administering the program.

Currency note

This opinion was issued in 2019. 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.

What the opinion meant for those who asked

County auditors and commissioners courts: At the time of the opinion, the AG read article 102.0121 to place ultimate control over pretrial intervention fund spending with the commissioners court through the budget-approval requirement. The fund could support compensation of employees who administer the program, but only to the extent the spending was solely for program administration, and the court could not let the fund relieve the prosecutor's office of unrelated expenses.

Prosecuting attorneys: The opinion described the prosecutor's express role under the statute as collecting the fee and depositing it, plus providing budget information correlating employees' time and work with program administration. It noted the prosecutor does not have the final say on expenditures.

Program staff and attorneys: The opinion treated compensation of those who actually administer the program as a likely-authorized use of the fund, while leaving the specific form, amount, and benefit questions to fact-based budget decisions rather than a blanket rule.

Common questions

Who decides how Texas pretrial intervention fees get spent? The commissioners court. The opinion explained that article 102.0121 lets the prosecutor collect and deposit the fee, but an expenditure may be made only under a budget the commissioners court approves, so the court ultimately determines authorized uses.

Can the fund pay the salary of staff who run the program? Likely yes, within limits. The AG concluded a court would likely treat compensation of employees who administer the program as a use "to administer the program," but only to the extent the spending is solely for program administration.

Can the fee be used for general prosecutor-office costs?
No. The opinion stressed the fee is reimbursement for program-related expenses and is not a windfall, so it may not be used to relieve the county of expenses of the prosecutor's office that are unrelated to the program.

Did the AG approve a specific salary supplement or benefit amount? No. The opinion said whether a particular salary supplement, benefit, form, or amount is authorized depends on the specific facts and cannot be resolved by an attorney general opinion.

Background and statutory framework

Pretrial intervention is a prosecutorial practice based on a written agreement between the State and a defendant (Lee v. State), with statutes addressing only certain aspects and leaving most administration to the prosecutor (GA-0986). Government Code section 103.021(22)(B) references a district attorney, criminal district attorney, or county attorney administrative fee not to exceed $500, and Code of Criminal Procedure article 102.0121 governs the fee's collection, use, and disbursement. Subarticle (a) limits the fee to reimbursing program-related expenses, subarticle (b) identifies who may be charged, and subarticle (c) requires deposit in a special fund used solely to administer the program with expenditures only under a commissioners-court-approved budget (see also KP-0121).

The AG relied on Commissioners Court of Caldwell County v. Criminal District Attorney and Local Government Code section 111.008(a), (b) for the commissioners court's authority to change a proposed budget, and on dictionary definitions of "expense" and "administer" (Black's Law Dictionary; Webster's Third New International Dictionary) to conclude that employee compensation for program administration fits within the authorized use. It cited GA-1039 for the principle that fact-specific questions are not resolved in AG opinions. A footnote added that the commissioners court may consider employees' program-administration duties when approving their compensation, and that the prosecutor may provide budget information correlating an employee's time and work with the program.

Citations

Statutes and codes:

• Tex. Code Crim. Proc. art. 102.0121; art. 102.0121(a), (b), (c)
• Tex. Gov't Code § 103.021(22)(B)
• Tex. Loc. Gov't Code § 111.008(a), (b)

Cases:

• Lee v. State, 560 S.W.3d 768, 770 (Tex. App.-Eastland 2018, pet. ref'd)
• Comm'rs Ct. of Caldwell Cty. v. Crim. Dist. Att'y, 690 S.W.2d 932, 938 (Tex. App.-Austin 1985, writ ref'd n.r.e.)

Attorney General opinions:

• Tex. Att'y Gen. Op. No. GA-0986 (2013)
• Tex. Att'y Gen. Op. No. KP-0121 (2016)
• Tex. Att'y Gen. Op. No. GA-1039 (2014)

Secondary authority:

• Black's Law Dictionary 698 (10th ed. 2014)
• Webster's Third New International Dictionary 27, 800 (2002)

Source

• Landing page: https://www.texasattorneygeneral.gov/opinions/ken-paxton/kp-0263
• Original PDF: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/2019/kp0263.pdf

Original opinion text

KEN PAXTON
ATTORNEY GENERAL OF TEXAS

August 5, 2019

Mr. Matthew S. Weingardt, C.P.A.
Opinion No. KP-0263
Val Verde County Auditor
901 Bedell Avenue, Suite A
Re: Use of pretrial intervention program
Del Rio, Texas 78840
funds collected under Code of Criminal
Procedure article 102.0121 to supplement the salary of an attorney or staff member who assists in the administration of the program (RQ-0271-KP)

Dear Mr. Weingardt:

You ask whether a prosecuting attorney may expend pretrial intervention program funds collected under Code of Criminal Procedure article 102.0121 to supplement the salary of an attorney or staff member who assists in the administration of the program.1 You also ask about the form and amount of expenditures allowed under the statute and whether they may be used for fringe benefits such as retirement and health benefits. Request Letter at 1.

Pretrial intervention is a prosecutorial practice that generally "involves a written agreement between the State and the defendant where the defendant agrees to comply with certain conditions for a specified period of time and the State agrees to dismiss the charges if the defendant successfully complies with the agreement." Lee v. State, 560 S.W.3d 768, 770 (Tex. App.- Eastland 2018, pet. ref'd). The practice derives from prosecutorial discretion; statutes address only certain aspects of pretrial intervention programs, largely leaving "the organization and administration of a pretrial intervention program ... up to the prosecutor." Id. at 771; see also Tex. Att'y Gen. Op. No. GA-0986 (2013) at 1-3 (discussing limited legislative guidance about the program). However, statutes authorize two pretrial intervention program fees-a supervision fee and, pertinent here, "a district attorney, criminal district attorney, or county attorney administrative fee ... not to exceed $500." TEX. GOV'T CODE § 103.021(22)(B) (referencing Code of Criminal Procedure article 102.0121). Article 102.0121 of the Code of Criminal Procedure governs the collection, use, and disbursement of the administrative fee:

(a) A district attorney, criminal district attorney, or county attorney may collect a fee in an amount not to exceed $500 to be used to reimburse a county for expenses, including expenses of the district attorney's, criminal district attorney's, or county attorney's office, related to a defendant's participation in a pretrial intervention program offered in that county.

(b) The district attorney, criminal district attorney, or county attorney may collect the fee from any defendant who participates in a pretrial intervention program administered in any part by the attorney's office.

(c) Fees collected under this article shall be deposited in the county treasury in a special fund to be used solely to administer the pretrial intervention program. An expenditure from the fund may be made only in accordance with a budget approved by the commissioners court.

TEX. CODE CRIM. PROC. art. 102.0121; see also Tex. Att'y Gen. Op. No. KP-0121 (2016) at 3-4 (discussing the statutory limitation of the fee's amount and restriction on its use).

Although you ask about the prosecuting attorney's authority to expend the funds, under article 102.0121, the prosecuting attorney's only express duties are to collect the administrative fee and to deposit it in a special fund in the county treasury. TEX. CODE CRIM. PROC. art. 102.0121(a)-(c). As it is the prosecuting attorney's program, subarticle (c) suggests that the prosecuting attorney may prepare or provide information regarding the use of the fees for the budget. See id. § 102.0121(c). But because the commissioners court must approve the budget, the statute requires the commissioners court, not the prosecuting attorney, to ultimately decide how to expend the pretrial intervention program special fund. See id.; cf. Comm'rs Ct. of Caldwell Cty. v. Crim. Dist. Att'y, 690 S.W.2d 932, 938 (Tex. App.-Austin 1985, writ ref'd n.r.e.) (holding that while an analogous statute authorizes the prosecuting attorney to "fix" employee salaries in a proposed office budget, the commissioners court may change those salaries in the final county budget); TEX. LOC. GOV'T CODE § 111.008(a), (b) (authorizing commissioners court to make changes in the proposed county budget "it considers warranted by the law").

Next, we consider whether the county may use the pretrial intervention fund for employee compensation. Request Letter at 1. Terms of the pertinent statutes provide general guidance for the commissioners court's decision about expenditure from the fund. First, the purpose of the fee is to reimburse the county for expenses relating to a defendant's participation in the pretrial intervention program. TEX. CODE CRIM. PROC. art. 102.0121(a). As reimbursement, the fee is not intended to be a windfall and may not be used to relieve the county of expenses of the prosecutor's office unrelated to the program. Second, the statutes characterize the fee as a prosecuting attorney "administrative fee" and require that the fund "be used solely to administer the pretrial intervention program." TEX. GOV'T CODE § 103.021(22)(B); TEX. CODE CRIM. PROC. art. 102.0121(c) (emphasis added). These statutes do not define "expenses," "administer," or "administrative fee" for purposes of the pretrial intervention program. "Expense" commonly means "[a]n expenditure of money, time, labor, or resources to accomplish a result."2 To "administer" commonly means "to manage the affairs of" or "to direct or superintend the execution, use, or conduct of" a particular matter.3 Although you do not provide details about their work, the time and labor of the attorneys and staff of the prosecutor's office likely represent a substantial component of the county resources expended to administer a pretrial intervention program. Thus, a court would likely conclude that compensation of the employees who administer the program is a use of the pretrial intervention fund "to administer the pretrial intervention program" and thus authorized by article 102.0121. TEX. CODE CRIM. PROC. art. 102.0121(c).

Turning to your specific questions, whether the commissioners court may use the pretrial intervention fund to provide a salary supplement or an employee benefit, or whether the statutes authorize a particular form or amount of expenditure, will depend on the specific facts and cannot be resolved by an attorney general opinion. See Request Letter at 1; Tex. Att'y Gen. Op. No. GA-1039 (2014) at 2. But article 102.0121 unequivocally requires that the pretrial intervention fund be used solely to administer the program and not diverted to any other use. TEX. CODE CRIM. PROC. art. 102.0121(c). Accordingly, article 102.0121 authorizes the commissioners court to use the pretrial intervention fund for an employee's salary, salary supplement, or benefit only to the extent such use of the fund is solely for the administration of the program.4

SUMMARY

Under article 102.0121 of the Code of Criminal Procedure, the commissioners court, not the prosecuting attorney, ultimately determines the authorized uses of the county pretrial intervention program fund. The statute authorizes the commissioners court to use the pretrial intervention fund for an employee's salary, salary supplement, or a benefit only to the extent the use of the fund is solely for the administration of the program.

Very truly yours,

KEN PAXTON
Attorney General of Texas

JEFFREY C. MATEER
First Assistant Attorney General

RYAN L. BANGERT
Deputy Attorney General for Legal Counsel

VIRGINIA K. HOELSCHER
Chair, Opinion Committee

WILLIAM A. HILL
Assistant Attorney General, Opinion Committee

1See Letter from Mr. Matthew S. Weingardt, C.P.A., Val Verde Cty. Auditor, to Honorable Ken Paxton, Tex. Att'y Gen. at 1 (Feb. 8, 2019), https://www2.texasattorneygeneral.gov/opinion/requests-for-opinion-rqs ("Request Letter"). 2Black's Law Dictionary 698 (10th ed. 2014); see also Webster's Third New Int'l Dictionary 800 (2002) (definitions of "expense" as including "something that is expended in order to secure a benefit or bring about a result" and "the financial burden involved typically in a course of action or manner of living: COST"). 3Webster's Third New Int'l Dictionary 27 (2002). 4Article 102.0121 does not preclude a commissioners court from considering the duties of employees of a prosecutor's office to administer a pretrial intervention program when the commissioners court approves the employee's compensation. Further, in preparing the budget referenced in article 102.0121(c), a prosecuting attorney could provide information correlating the employee's time and work with the administration of the program.