GOVERNMENT CODE
SUBTITLE C. PROSECUTING ATTORNEYS
CHAPTER 41. GENERAL PROVISIONS
SUBCHAPTER A. OFFICE OF PROSECUTING ATTORNEY
§ 41.001. QUALIFICATIONS. A district or county
attorney must be a licensed attorney.
Acts 1985, 69th Leg., ch. 480, § 1, eff. Sept. 1, 1985.
§ 41.002. NOTIFICATION OF ADDRESS. Each district and
county attorney shall notify the attorney general and comptroller
of his post office address as soon as practicable after his election
and qualification.
Acts 1985, 69th Leg., ch. 480, § 1, eff. Sept. 1, 1985.
§ 41.003. ADMISSION BY PROSECUTOR. An admission made by
a district or county attorney in a suit or action to which the state
is a party does not prejudice the rights of the state.
Acts 1985, 69th Leg., ch. 480, § 1, eff. Sept. 1, 1985.
§ 41.004. ACCEPTANCE OF REWARD. (a) A district or
county attorney, either before or after the case is tried and
finally determined, may not take from any person a fee, article of
value, compensation, reward, or gift, or a promise of any of these,
to prosecute a case that he is required by law to prosecute or as
consideration or a testimonial for his services in a case that he is
required by law to prosecute.
(b) Section 41.004(a) does not apply to funds provided by
the government of the United States through the Texas Department of
Human Services to local prosecutorial offices for the purpose of
assisting to defray the costs of prosecutions.
Acts 1985, 69th Leg., ch. 480, § 1, eff. Sept. 1, 1985. Amended
by Acts 1999, 76th Leg., ch. 1066, § 1, eff. June 18, 1999.
§ 41.005. COLLECTION OF MONEY. (a) Not later than the
30th day after the date on which a district or county attorney
receives any money collected for the state or a county, the district
or county attorney shall, after deducting the commissions provided
by this section, pay the money into the treasury of the state or of
the county to which it belongs.
(b) The district or county attorney may retain a commission
from money collected for the state or a county. The amount of the
commission in any one case is 10 percent of the first $1,000
collected, and five percent of the amount collected over $1,000.
(c) Subsections (a) and (b) of this section also apply to
money realized for the state under the laws governing escheat.
(d) Not later than the last day of August of each year, each
district and county attorney shall file in the office of the
comptroller or of the county treasurer, as the case may be, a sworn
account of all money received by him by virtue of his office during
the preceding year and payable into the state or county treasury.
Acts 1985, 69th Leg., ch. 480, § 1, eff. Sept. 1, 1985.
§ 41.006. REPORT TO ATTORNEY GENERAL. At the times and
in the form that the attorney general directs, the district and
county attorneys shall report to the attorney general the
information from their districts and counties that the attorney
general desires relating to criminal matters and the interests of
the state.
Acts 1985, 69th Leg., ch. 480, § 1, eff. Sept. 1, 1985.
§ 41.007. OPINIONS TO COUNTY AND PRECINCT OFFICIALS. A
district or county attorney, on request, shall give to a county or
precinct official of his district or county a written opinion or
written advice relating to the official duties of that official.
Acts 1985, 69th Leg., ch. 480, § 1, eff. Sept. 1, 1985.
§ 41.008. RECORD. (a) Each district or county
attorney shall keep a record of all actions or demands prosecuted or
defended by the person as district or county attorney, and all
proceedings held in relation to the attorney's official acts.
(b) The record required by Subsection (a) may be in a paper
format, an electronic format, or both. A computer record of
actions, demands, and proceedings satisfies the requirements of
Subsection (a).
(c) The record shall be available at all times for
inspection by any person appointed to examine it by the governor or
by the commissioners court of a county.
(d) Each district and county attorney shall deliver any
portion of the record under the attorney's control to the attorney's
successor in office.
Acts 1985, 69th Leg., ch. 480, § 1, eff. Sept. 1, 1985. Amended
by Acts 2003, 78th Leg., ch. 301, § 1, eff. Sept. 1, 2003.
§ 41.009. PROSECUTION OF OFFICERS ENTRUSTED WITH PUBLIC
FUNDS. If a district or county attorney learns that an officer in
his district or county who is entrusted with the collection or
safekeeping of public funds is neglecting or abusing the trust
confided in him or is failing to discharge his duties under the law,
the district or county attorney shall institute the proceedings
that are necessary to compel the performance of the officer's
duties and to preserve and protect the public interest.
Acts 1985, 69th Leg., ch. 480, § 1, eff. Sept. 1, 1985.
§ 41.010. APPOINTMENT OF INITIAL DISTRICT OR CRIMINAL
DISTRICT ATTORNEY. If a new office of district attorney or
criminal district attorney is created, the governor shall appoint a
person to fill the office until the next general election.
Acts 1985, 69th Leg., ch. 480, § 1, eff. Sept. 1, 1985.
§ 41.011. PRIVATE PRACTICE IN COUNTY OR DISTRICT
OFFICE. A district or county attorney who is not prohibited by law
from engaging in the private practice of law may, at the discretion
of the commissioners court of a particular county, conduct a
private practice of law using the district or county office
provided by that county for conducting his official duties.
Added by Acts 1987, 70th Leg., ch. 213, § 1, eff. Aug. 31, 1987.
§ 41.012. LIABILITY INSURANCE. A county or district
attorney may purchase, for himself and for his staff members,
liability insurance, or similar coverage from a governmental pool
operating under Chapter 119, Local Government Code, or a
self-insurance fund or risk retention group operating under Chapter
2259, to insure against claims arising from the performance of his
official duties from state or county funds appropriated or
allocated for the expenses of his office or from accounts
maintained by the county or district attorney, including but not
limited to the fund created by charges assessed by the county or
district attorney in connection with the collection of
"insufficient fund" negotiable instruments.
Added by Acts 1987, 70th Leg., ch. 296, § 1, eff. Aug. 31, 1987.
Renumbered from § 41.011 by Acts 1989, 71st Leg., ch. 2, §
16.01(21), eff. Aug. 28, 1989. Amended by Acts 1993, 73rd Leg., ch.
561, § 1, eff. Aug. 30, 1993; Acts 2001, 77th Leg., ch. 1420,
§ 8.229, eff. Sept. 1, 2001.
§ 41.013. COMPENSATION OF CERTAIN PROSECUTORS. Except
as otherwise provided by law, a district attorney or criminal
district attorney is entitled to receive from the state annual
compensation equal to at least 80 percent of the annual
compensation provided for a district judge in the General
Appropriations Act.
Added by Acts 1989, 71st Leg., ch. 1254, § 1, eff. Sept. 1, 1989.
§ 41.014. PRO BONO LEGAL SERVICES. (a) In this
section:
(1) "Pro bono legal services to the indigent" includes
civil legal services rendered without expectation of compensation
either directly to the indigent or to a charitable public interest
organization regarding matters primarily addressing the needs of
the indigent.
(2) "Prosecutor" means a county attorney, district
attorney, criminal district attorney, assistant county attorney,
assistant district attorney, or assistant criminal district
attorney.
(b) A prosecutor may provide pro bono legal services to the
indigent if providing the services does not interfere with the
prosecutor's official duties or regularly compensated hours of
employment.
(c) Providing pro bono legal services to the indigent as
authorized by this section is not within the scope of employment of
the prosecutor, and the state or a political subdivision of the
state is not liable for damages that result from providing the
services.
(d) Providing pro bono legal services to the indigent under
this section does not constitute the private practice of law.
Added by Acts 1993, 73rd Leg., ch. 540, § 1, eff. Sept. 1, 1993.
SUBCHAPTER B. STAFF OF PROSECUTING ATTORNEY
§ 41.101. DEFINITION. In this subchapter, "prosecuting
attorney" means a county attorney, district attorney, or criminal
district attorney.
Acts 1985, 69th Leg., ch. 480, § 1, eff. Sept. 1, 1985.
§ 41.102. EMPLOYMENT OF ASSISTANTS AND
PERSONNEL. (a) A prosecuting attorney may employ the assistant
prosecuting attorneys, investigators, secretaries, and other
office personnel that in his judgment are required for the proper
and efficient operation and administration of the office.
(b) A prosecuting attorney may request the assistance of the
attorney general in the prosecution of all manner of criminal cases
or in performing any duty imposed by law on the prosecuting
attorney. In requesting such assistance, a prosecuting attorney
may appoint any assistant attorney general as an assistant
prosecuting attorney.
Acts 1985, 69th Leg., ch. 480, § 1, eff. Sept. 1, 1985. Amended
by Acts 1995, 74th Leg., ch. 785, § 3, eff. Sept. 1, 1995.
§ 41.103. ASSISTANT PROSECUTING ATTORNEYS. (a) An
assistant prosecuting attorney must be licensed to practice law in
this state and shall take the constitutional oath of office.
(b) An assistant prosecuting attorney may perform all
duties imposed by law on the prosecuting attorney.
Acts 1985, 69th Leg., ch. 480, § 1, eff. Sept. 1, 1985.
§ 41.104. BOND. A prosecuting attorney may require his
assistant prosecuting attorneys, investigators, and secretaries to
have a bond in the amount that the prosecuting attorney sets.
Acts 1985, 69th Leg., ch. 480, § 1, eff. Sept. 1, 1985.
§ 41.105. REMOVAL. All personnel of a prosecuting
attorney's office are subject to removal at the will of the
prosecuting attorney.
Acts 1985, 69th Leg., ch. 480, § 1, eff. Sept. 1, 1985.
§ 41.106. COMPENSATION. (a) A prosecuting attorney
shall fix the salaries of his assistant prosecuting attorneys,
investigators, secretaries, and other office personnel, subject to
the approval of the commissioners court of the county or counties
composing the district.
(b) In addition to their salaries, assistant prosecuting
attorneys and investigators may be allowed actual and necessary
travel expenses incurred in the discharge of their duties, not to
exceed the amount fixed by the prosecuting attorney and approved by
the commissioners court of the county or counties composing the
district. The county may pay claims for travel expenses from the
general fund, the officers' salary fund, or any other available
funds of the county.
Acts 1985, 69th Leg., ch. 480, § 1, eff. Sept. 1, 1985.
§ 41.107. EQUIPMENT AND SUPPLIES. (a) The
commissioners court of the county or counties composing a district
may furnish telephone service, typewriters, office furniture,
office space, supplies, and the other items and equipment that are
necessary to carry out the official duties of the prosecuting
attorney's office and may pay the expenses incident to the
operation of the office.
(b) The commissioners court of the county or counties
composing a district may furnish automobiles for the use of the
prosecuting attorney's office in conducting the official duties of
the office and may provide for the maintenance of the automobiles.
Acts 1985, 69th Leg., ch. 480, § 1, eff. Sept. 1, 1985.
§ 41.108. GIFTS AND GRANTS. The commissioners court of
the county or counties composing a district may accept gifts and
grants from any foundation or association for the purpose of
financing adequate and effective prosecution programs in the county
or district.
Acts 1985, 69th Leg., ch. 480, § 1, eff. Sept. 1, 1985.
§ 41.109. AUTHORITY OF INVESTIGATOR. (a) An
investigator appointed by a prosecuting attorney has the same
authority as the sheriff of the county to make arrests anywhere in
the county and to serve anywhere in the state warrants, capiases,
subpoenas in criminal cases, and all other processes in criminal
cases issued by a district court, county court, or justice court of
this state.
(b) An investigator is under the exclusive authority and
direction of the prosecuting attorney and is not under the
authority and direction of the sheriff. The prosecuting attorney
is responsible for the official acts of his investigators and has
the same remedies against his investigators and their sureties as
any person has against a prosecuting attorney and his sureties.
(c) An investigator may not draw a fee of any character for
performing a duty prescribed by this section.
Acts 1985, 69th Leg., ch. 480, § 1, eff. Sept. 1, 1985.
§ 41.110. TRAINING RELATED TO FAMILY VIOLENCE. The
court of criminal appeals shall adopt rules regarding the training
of prosecuting attorneys relating to cases involving a charge that
a person committed an act of family violence as defined by Section
71.004, Family Code.
Added by Acts 1995, 74th Leg., ch. 67, § 4, eff. Sept. 1, 1995.
Amended by Acts 2003, 78th Leg., ch. 1276, § 9.001(c), eff. Sept.
1, 2003.
SUBCHAPTER C. APPORTIONMENT OF STATE FUNDS FOR PROSECUTION IN
CERTAIN COUNTIES
§ 41.201. ELIGIBLE COUNTIES. This subchapter applies
only to:
(1) Harris County; and
(2) any other county in which:
(A) the county officials are compensated on a
salary basis; and
(B) there is a criminal district attorney or a
county attorney performing the duties of a district attorney.
Acts 1985, 69th Leg., ch. 480, § 1, eff. Sept. 1, 1985.
§ 41.202. TRANSFER BY COMPTROLLER. (a) On the first
day of September, January, and May of each fiscal year, the
comptroller shall deposit the amount provided by this subchapter in
the officers' salary fund of each county to which this subchapter
applies from the available appropriations made by the legislature
for that purpose.
(b) A county in which the commissioners court is entitled to
determine whether county officers are paid on a salary basis may not
receive funds under this subchapter until the commissioners court
notifies the comptroller of its order providing that the county
officers in the county are to be compensated on a salary basis.
Acts 1985, 69th Leg., ch. 480, § 1, eff. Sept. 1, 1985.
§ 41.203. AMOUNT OF TRANSFER. (a) In making the
deposits provided by Section 41.202, the comptroller shall
apportion the amount appropriated for that purpose among the
eligible counties on the basis of the population of each county as
provided by this section.
(b) The annual apportionment for a county may not exceed:
(1) 10 cents per capita for a county with a population
of less than 8,500;
(2) 7-1/2 cents per capita for a county with a
population of 8,500 or more and not more than 19,000;
(3) 5 cents per capita for a county with a population
of more than 19,000 and not more than 75,000;
(4) 4 cents per capita for a county with a population
of more than 75,000; and
(5) 4 cents per capita for Harris County.
Acts 1985, 69th Leg., ch. 480, § 1, eff. Sept. 1, 1985.
§ 41.204. APPORTIONMENT BY COMMISSIONERS COURT. The
commissioners court of a county receiving money from the state
under this subchapter shall apportion the money to the proper
officers' salary fund of the county.
Acts 1985, 69th Leg., ch. 480, § 1, eff. Sept. 1, 1985.
SUBCHAPTER D. LONGEVITY PAY FOR ASSISTANT PROSECUTORS
§ 41.251. DEFINITIONS. In this subchapter:
(1) "Assistant prosecutor" means 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.
(2) "Full-time employee" means an assistant
prosecutor who is normally scheduled to work at least 40 hours a
week as an assistant prosecutor.
(3) "Part-time employee" means an assistant
prosecutor who is not a full-time employee.
Added by Acts 2001, 77th Leg., ch. 378, § 1, eff. Jan. 1, 2002.
§ 41.252. LONGEVITY PAY. (a) An assistant prosecutor is
entitled to longevity pay if the assistant prosecutor:
(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.
(b) The district attorney, criminal district attorney, or
county attorney in the county in which the assistant prosecutor is
employed shall certify the eligibility of the assistant prosecutor
to receive a longevity pay supplement under this subchapter.
Added by Acts 2001, 77th Leg., ch. 378, § 1, eff. Jan. 1, 2002.
Amended by Acts 2003, 78th Leg., ch. 1083, § 1, eff. Dec. 1,
2003.
§ 41.253. AMOUNT. (a) Except as provided by Section
41.255(f), the amount of longevity pay is $20 per month for each
year of lifetime service credit.
(b) The increase is effective beginning with the month
following the month in which the fourth year of lifetime service
credit is accrued.
(c) An assistant prosecutor may not receive as longevity pay
from the county under this subchapter:
(1) more than $20 for each year of lifetime service
credit, regardless of the number of positions the assistant
prosecutor holds or the number of hours the assistant prosecutor
works each week; or
(2) more than $5,000 annually.
Added by Acts 2001, 77th Leg., ch. 378, § 1, eff. Jan. 1, 2002.
Amended by Acts 2003, 78th Leg., ch. 1083, § 2, eff. Dec. 1,
2003.
§ 41.254. LIMITATIONS ON LAW PRACTICE. (a) An
assistant prosecutor who receives longevity pay under this
subchapter may not engage in the private practice of law if, from
all funds received, the assistant prosecutor receives a salary that
is equal to or more than 80 percent of the salary paid by the state
to a district judge.
(b) An assistant prosecutor who becomes subject to this
section may complete all civil cases that are not in conflict with
the interest of any of the counties of the district in which the
assistant prosecutor serves and that are pending in court before
the assistant prosecutor exceeds the salary cap.
Added by Acts 2001, 77th Leg., ch. 378, § 1, eff. Jan. 1, 2002.
§ 41.255. FUNDING. (a) The county shall pay a
longevity pay supplement under this subchapter to the extent the
county receives funds from the comptroller as provided by
Subsection (d).
(b) The county may not reduce the salary of the assistant
prosecutor to offset the longevity pay supplement.
(c) If an assistant prosecutor performs services for more
than one county, the counties shall apportion the longevity pay
supplement according to the ratio a county's population bears to
the total population of the counties in which the assistant
prosecutor performs services.
(d) Not later than the 15th day after the start of each state
fiscal quarter, the county shall certify to the comptroller the
total amount of longevity pay supplement due to all assistant
prosecutors in the county for the preceding state fiscal quarter.
The comptroller shall issue a warrant to the county for the amount
certified. The comptroller shall issue warrants to the counties
not later than the 60th day after the first date of each state
fiscal quarter.
(e) On the receipt of funds from the comptroller as provided
by Subsection (d), the county shall pay longevity supplements to
eligible assistant prosecutors in the next regularly scheduled
salary payment or in a separate payment.
(f) A county is not required to pay longevity supplements if
the county does not receive funds from the comptroller as provided
by Subsection (d). If sufficient funds are not available to meet
the requests made by counties for funds for payment of assistant
prosecutors qualified for longevity supplements, the comptroller
shall apportion the available funds to the eligible counties by
reducing the amount payable to each county on an equal percentage
basis. A county that receives from the comptroller an amount less
than the amount certified by the county to the comptroller under
Subsection (d) shall apportion the funds received by reducing the
amount payable to eligible assistant prosecutors on an equal
percentage basis, but is not required to use county funds to make up
any difference between the amount certified and the amount
received.
(g) If previous payments under this chapter have been
reduced for insufficient funds pursuant to Subsection (f), or if a
county submits the required information but not in a timely manner
as required by Subsection (d), the comptroller shall:
(1) make a payment of the balance when the funds are
available; or
(2) carry forward the balance owed to the county and
pay that amount to the county when the next payment is required.
Added by Acts 2001, 77th Leg., ch. 378, § 1, eff. Jan. 1, 2002.
Amended by Acts 2003, 78th Leg., ch. 1083, § 3, eff. Dec. 1,
2003.
§ 41.256. CHANGE IN STATUS. If an assistant prosecutor
ceases being a full-time employee after the first workday of a month
but otherwise qualifies for longevity pay, the assistant
prosecutor's compensation for that month includes full longevity
pay.
Added by Acts 2001, 77th Leg., ch. 378, § 1, eff. Jan. 1, 2002.
§ 41.257. ACCRUAL OF LIFETIME SERVICE CREDIT. (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.
(b) An assistant prosecutor who is on leave without pay for
an entire calendar month does not accrue lifetime service credit
for the month.
(c) An assistant prosecutor who simultaneously holds two or
more positions that each accrue lifetime service credit accrues
credit for only one of the positions.
(d) An assistant prosecutor who begins working on the first
workday of a month in a position that accrues lifetime service
credit is considered to have begun working on the first day of the
month.
Added by Acts 2001, 77th Leg., ch. 378, § 1, eff. Jan. 1, 2002.
§ 41.258. FELONY PROSECUTOR SUPPLEMENT FUND AND FAIR
DEFENSE ACCOUNT. (a) The felony prosecutor supplement fund is
created in the state treasury.
(b) A court, judge, magistrate, peace officer, or other
officer taking a bail bond for an offense other than a misdemeanor
punishable by fine only under Chapter 17, Code of Criminal
Procedure, shall require the payment of a $15 cost by each surety
posting the bail bond, provided the cost does not exceed $30 for all
bail bonds posted at that time for an individual and the cost is not
required on the posting of a personal or cash bond.
(c) An officer collecting a cost under this section shall
deposit the cost in the county treasury in accordance with Article
103.004, Code of Criminal Procedure.
(d) An officer who collects a cost due under this section
shall:
(1) keep separate records of the funds collected; and
(2) file the reports required by Article 103.005, Code
of Criminal Procedure.
(e) The custodian of the county treasury shall:
(1) keep records of the amount of funds on deposit that
are collected under this section; and
(2) send to the comptroller not later than the last day
of the month following each calendar quarter the funds collected
under this section during the preceding quarter.
(f) A surety paying a cost under Subsection (b) may apply
for and is entitled to a refund of the cost not later than the 181st
day after the date the state declines to prosecute an individual or
the grand jury declines to indict an individual.
(g) A county may retain 10 percent of the funds collected
under this section and may also retain all interest accrued on the
funds if the custodian of the treasury:
(1) keeps records of the amount of funds on deposit;
and
(2) remits the funds to the comptroller as prescribed
by Subsection (e).
(h) Funds collected are subject to audit by the comptroller,
and funds expended are subject to audit by the state auditor.
(i) The comptroller shall deposit two-thirds of the funds
received under this section in the felony prosecutor supplement
fund and one-third of the funds received under this section to the
fair defense account. A county may not reduce the amount of funds
provided for indigent defense services in the county because of
funds provided under this subsection.
(j) The comptroller shall pay supplements from the felony
prosecutor supplement fund as provided by this subchapter. At the
end of each fiscal year, any unexpended balance in the fund in
excess of $1.5 million may be transferred to the general revenue
fund.
Added by Acts 2003, 78th Leg., ch. 1083, § 4, eff. Sept. 1, 2003.
