October 27, 2023

Texas Attorney General Opinions

KP-0448                                                               10/23/23


Is a district attorney’s office located in a stand-alone building with no courts or court offices considered a building that houses the operations of a district, county, or justice court for the purposes of an expenditure from the courthouse security fund?


The courthouse security fund is a fund that “may be used only for security personnel, services, and items related to buildings that house the operations of district, county, or justice courts” under Code of Criminal Procedure Art. 102.017(b). This fund can include the security of individuals who act in the role of adjudicator. A district attorney’s role is not that of adjudicator but rather is primarily that of prosecutor. If a building housing the district attorney’s office does not also house courts or individuals “who engage in activities of an adjudicatory nature, a court would likely conclude it does not house the operations of a district, county, or justice court.” Read Opinion.


This conclusion is straightforward and unremarkable but for the faux outrage of the dicta in footnote 2 in which the Attorney General calls the Court of Criminal Appeals’s Stephens opinion “egregiously incorrect” for striking down legislative attempts to unconstitutionally grant his office the authority to independently prosecute certain crimes. See State v. Stephens, 663 S.W.3d 45 (Tex. Crim. App. 2022), reh’g denied, 664 S.W.3d 293 (Tex. Crim. App. 2022). The decisions in Stephens have no relevance to the resolution of the question underpinning this opinion, but if this footnoted tantrum is any indication, you should expect to hear more about it during the 2024 GOP primary campaign season.

KP-0449                                                               10/23/23


Can a county commissioners court cede authority to the county judge to hire a county commissioner’s spouse for a position that reports directly to the county judge?


A county commissioners court may cede authority to the county judge to hire and employ individuals. But “a court would likely conclude that a county judge who is delegated the commissioners court’s implied authority to employ persons is prohibited by the anti-nepotism provision in Government Code §573.041 from appointing the spouse of a county commissioner to a paid county position.” Furthermore, a public official involved in the process may be committing a misdemeanor count of official misconduct. Read Opinion.