Written by Amanda Coers – Texas Attorney General Ken Paxton has issued an opinion in response to a request from Brown County Auditor Jennifer Robison regarding Brown County Attorney Shane Britton’s pretrial diversion program for first-time offenders.
The official statement reads:
Opinion: (KP-0121) Authority of county attorneys regarding payments made in conjunction with pretrial diversion agreements
Request for Opinion: (Â RQ-0111-KP)
Summary: Section 45.125 of the Government Code authorizes the Brown County Attorney to receive gifts and grants limited to the purpose of financing or assisting the operation of the attorney’s office. A court would likely conclude that section 45.125 does not authorize the Brown County Attorney’s office to require an accused to pay an amount to that office as a condition of a pretrial intervention agreement in addition to or in excess of the fee authorized by article 102.0121 of the Code of Criminal Procedure. No statute authorizes a criminal court to order a defendant to pay a gift or grant under section 45.125 of the Government Code.
Gifts or grants received under section 45.125 of the Government Code are limited to financing or assisting the operation of the Brown County Attorney’s office. The fee authorized by article 102.0121 of the Code of Criminal Procedure may be used only for the expenses of a prosecuting attorney’s office related to a defendant’s participation in a pretrial intervention program offered in that county.
The county commissioners court has ultimate authority over the disposition of funds received under section 45.125 of the Government Code. Funds received under that statute may not be comingled with or transferred to the hot-check fund established under article 102.007 of the Code of Criminal Procedure.
In 2007, the Texas Legislature passed a bill presented by Rep. Jim Keffer pertaining to Brown County’s pretrial diversion program. Former Assistant County Attorney Ryan Locker presented a proposal to the legislation to essentially increase the amount of funds the County Attorney’s office was allowed to collect in regards to the pretrial diversion program. After the Legislature enacted the law, the County Attorney’s office renamed the program as the Brown County Misdemeanor First Time Offenders Program, and set the cost to defendants participating in the program ranging from $500 to $980 to be paid to the county attorney’s office and $480 to the probation office.
At the request of the FBI, the Texas Rangers investigated allegations of misconduct in Brown County regarding mishandling of funds from the pretrial diversion program. The investigation has been completed and has been turned over to the U.S. Attorney’s Office.
Hundreds of defendants have paid over $200,000 since 2008 to the Brown County Attorney’s office. There is evidence that many of these payments were made to Britton’s office, but never included in the County Treasury.
