November 14, 1990
Honorable Bill M. Reimer Opinion NO. JM-1246
District Attorney
Coma1 County, Texas Re: Authority of a dietrtct
150 N. Seguin, Suite 307 judge to appoint a dietrrzt
New Braunfele, Texas 78130 attorney pro ternunder
cle 2.07 of the Code of
Criminal Procedure where
there is an assistant diet-
rict attorney in place
(RQ-2141)
Dear Mr. Reimer:
you have requested our opinion regarding the authority
of a district judge to appoint a district attorney "pro
tern,"pursuant to article 2.07 of the Code of Criminal
Procedure. The statute provides:
(a) Whenever an attorney for the state is
disqualified to act in any case or proceeding,
is absent from the county or district, or is
otherwise unable to perform the duties of his
office, or in any instance where there is no
attorney for the state, the judge of the court
in which he represents the state may appoint
any competent attorney to perform the duties
of the office during the absence or dieguali-
fication of the attorney for the state.
(b) Except as otherwise provided by this
subsection, if the appointed attorney is also
an attorney for the state, the duties of the
appointed office are additional duties of his
present office, and he is not entitled to
additional compensation. Nothing herein shall
prevent a commissioners court of a county from
contracting with another commissioners court
to pay expenses and reimburse compensation
paid by a county to an attorney for the state
who is appointed to perform additional duties.
(b-l) Au attorney for the state who is not
disqualified to act may request the court to
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Honorable Bill M. Reimer - Page 2 (J&1246)
permit him to recuee himself in a case for
good cause and upon approval by the court is
disqualified.
(c) If the appointed attorney is not an
attorney for the state, he is qualified to
perform the duties of the office for the
period of absence or disqualification of the
attorney for the state on filing an oath with
the clerk of the court. He shall receive
compensation in the same amount and manner as
an attorney appointed to represent an indigent
person.
(d) In this article, "attorney for the
state" means a county attorney, a district
attorney, or a criminal district attorney.
You indicate that the elected district attorney "has
been called to active duty because of the Middle East
eituation."
You first ask whether the term "attorney for the state"
as defined in section (d) includes an assistant district
attorney. By its very terms, the statute does not apply to
anyone except ea county attorney, a district attorney, or a
criminal district attorney." In Attorney General Opinion
BB-80 (1979), this office declared:
We do not believe an, assistant district
attorney is an attorney for the state within
the meaning of section 2.07. Other statutes
distinguish between the district attorney and
his assistants. The district attorney is an
elected official. . . . The assistant die-
trict attorney is appointed by and subject to
removal by the district attorney. . . . The
definition of "attorney for the state" applies
to all of article 2.07 of the Code of Criminal
Procedure. If "attorney for the state"
included assistants, then article 2.07 would
permit the court to appoint an assistant
district attorney pro tern. The Court of
Criminal Appeals has, however, stated that the
predecessor of article 2.07 did not authorize
the judge to appoint an assistant district
attorney. u 75 S.W. 305 (Tex.
Grim. App. 1903). Conetrui~g article 2.07 to
authorize the appointment of an assistant
district attorney would also bring it into
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Honorable Bill M. Reimer - Page 3 '(JM-1246)
conflict with article 332a, V.T.C.S., which
permits the prosecuting attorney to choose his
own aeeietante.
We agree with this analysis. In our opinion, "attorney for
the state" as used in section (d) does not include an
assistant district attorney.
You next ask whether article 2.07 precludes a judge
from making an appointment thereunder if "an assistant
district attorney is in place." Since, as ve have indicat-
ed, an assistant district attorney is not an "attorney for
the state" within the meaning of the statute, a district
judge is permitted by the terms of section (a) to make ;zz
requisite appointment in the situation you pose.
elected district attorney*6 absence from the country neces-
sarily means that that official "ia absent from the county
or di8trict.e The presence of an assistant district attor-
ney makes no difference for purposes of article 2.07.
you also ask about the appointive power of a district
judge under article 2.07 as it relates to the Governor's
authority to appoint a district attorney. Article 4,
section 12, of the Texas Constitution grants to the Governor
the power to fill a vacancv in the office of district
attorney. Article 2.07 does not address the situation of a
vacancy. It refers only to those instances in which a
district attorney is temporarily unable to perform the
duties of his office. Were it to be construed otherwise,
article 2.07 would clearly be an unconstitutional usurpation
of the Governor's authority to fill vacancies under article
4, section 12.
SUMMARY
A district judge is authorized to appoint a
district attorney pro ternpursuant to article
2.07 of the Code of Criminal Procedure, even
though there is an assistant district attorney
in place.
JIM MATTOX
Attorney General of Texas
RARYRRLLRR
First Assistant Attorney General
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Honorable Bill M. Reinter - Page 4 (~~-1246)
Lou MCCREARY
Executive Assistant Attorney General
JUDGEZOLLIESTBAKLEY
Special Aeeietant Attorney General
REHEA HICXS
Special Aeeietant Attorney General
RICK GILPIN
Chairman, Opinion Committee
Prepared by Rick Gilpin
Aeeietant Attorney General
p. 6644