My CC is saying we don't need a hot check clerk because the fees we are collecting (about &00 per month) isnt offsetting the salary (part time. Is anyone required to use the fees to pay their staff?

OK...I'll bite.

Your question actually raises two issues: (1) May a District Attorney use Hot Check Fee revenue to pay the salary of a clerk; and (2) can the Commissioners Court require that the District Attorney to use Hot Check Fee revenue to pay the salary of a clerk?

The answer to the first question is "Yes." CCP 102.007(f) permits the District Attorney to use the Hot Check fees to, "...defray the salaries and expenses of the prosecutor's office." This would include paying all or part of the salary of his Hot Check Clerk.

The answer to the second question is "No." CCP 102.007(f) also provides that expenditures from the Hot Check Fee fund, "...shall be at the sole discretion of the attorney." The Commissioners Court cannot require that the District Attorney spend the Hot Check Fees in a particular manner.

For a great discussion of the permissible and prohibited uses of the Hot Check Fees and Civil Asset Forfeiture Fees, take a look at TDCAA Research Attorney Sean Johnson's article in the July-August 2008, Volume 38, No. 4 edition of The Prosecutor. Or follow the link to: http://www.tdcaa.com/node/2870. Sean's article is a great resource.

I'm away from the office, but seem to recall that a recent issue of County magazine recorded that someone has queried the AG about the use of the check fund for payment of an employee's salary. Don't recall the particulars - just thinking uh oh, here we go again...

Lisa L. Peterson
Nolan County Attorney

There was. It was withdrawn soon after submission.