June 11. 1974
The Honorable Guy Hardin Opinion No. H- 324
District Attorney
31st Judicial District Re: Authority of District Judge to
P.O. Box 571 appoint attorney pro tern under
Shamrock, Texas Art. 2.07, Vernon’s Code of Criminal
Procedure, when District Attorney
is ‘not disqualified.
r
..~
Dear Mr. Hardin:
-Y&have requested our opinion on two separate questions. The first
is whether a District Judge has authority, under Article 2.07 of the Texas
Cod,e of .Criminal Procedure, to appoint an attorney pro tern to act for the
District Attorney when the latter is neither ill, out of the district nor
disqualified.
Article 2.07, V. T. C. C. P., as amended. in 1973 (Acts 1973, 63rd Leg.,
ch. 154, p. 356). 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 disqualifica’-
tion of’-the attorney for then state.
(b) If the appointed attorney is also an attorney for
the state, the duties of the appointed office are additional
duties of hiss present office, and he is not entitled to
p. 1498
The Honorable Guy Hardin page 2 (H- 324)
additional compensation.
(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 disquali-
fication 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.
Also pertinent to the answer to your first question are the provisions
of Article 2.02, V. T. C. C. P. :
The county attorney shall attend the terms of
court in his county below the grade of district court,
and shall represent the State in all criminal cases
under examination or prosecution in said county: and
in the absence of the district attorney, he shall represent
the State alone and, when requested, shall aid the
district attorney in the prosecution of any case in
behalf of the State in the district court. (emphasis added)
The office of District Attorney is a constitutional one created by
Article 5, 5 21 of the Texas Constitution, [See Moore v. State, 57 Tex.
307 (1882); Attorney General Opinion H-72 (1973)], which provides that he
shall be elected. Vacancies in the office are to be filled by the Governor,
with the advice and cons,ent of the Senate until the first general election.
Texas Const. Art. 4, g12.
Reading Article 2.07 together with Article 2.02 of the Code of
Criminal Procedure, as we are required to do by the rule that all statutes
p. 1499
The Honorable Guy Hardin page, 3 (H-324)
in pari materia will be read together (53 Tex. Jur.: 2d, Statutes, 5 186,
p. 280 and cases cited), we conclude that it is both the duty and the right
of the county attorney, to represent the state in the absence of the district
attorney and that it is only when both the district and county attorneys are
unable to serve that.the district court may exercise.the-authority conferred
on it by Article .2.07, V..T. C. C. P., .and appoint an attorney pro tern to
represent the, state. See Attorney General’s Opinion No.. O-2531 (1940)
and H-72,(1973).
The four circumstances under which the district court may appoint
an attorney pro tern to represent the state, as set out in Art. 2.07, are
where the attorney, for theLetate (1) i-s disqualified; (2) is absent from the
county or..dist+ct;,.,~3) i,a otherwise unable ,to perform~the duties of his
office, as for instance, if he is sick; and (4).“in anyinstance where there
is no attorney for .the state. ” This last, in our opinion, must relate to
~:thoz circumstances wher,e _the office is vaca,nt. :
You advise that,~ in your district, the judge appointed an attorney
pro tern to handle matters,, before a grand.,jury,. even though you were
preseint”a;nd,-not,~disqualified. The judge,: on the other~ha,nd, has advised
us that you -were;abaent from the state and. made’n.o.lohjection to the appoint-
mentor the:continuation-of;the:appointee..fo:.act after~you returned. We
caqnnot resdlve:disput.ed~fact,i,ssues;,.
,., :,:..y. .: . ..: -Ifyou, were absenttand there was no
qualified.conntyattorney available to fill yours posit&n ,, ,,,we believe the judge
had authority: toapp&nt:an attorney ‘pro tern.. Othk&ise he did not.
I
Your second question involves the propriety of the court questioning
a~..witness in~..a.criminal:tria,l,.about the witness! s ,prior convictions when the
distsict’attorney had..decidedthat
. *.. .such testimony would be.-inadmissible.
~,,, 1 ..!‘i ~.:, ,. ;~. c ~~ ,~ .: ,‘~.,‘I’ , i ; i .,,
,~.Yi :_ ::~Thk :gcneral; rule .:seems to- be that, a.lthough&he triaL,court ordinarily
should refraip~fram_~aki~g.przrt in the questioning,of witnesi8es, @does have
the right to satisfy itself upon questions subject to rulings. I:See, for example,
Jackson v. State, 318 S. W. 2d 98 (Tex. Grim. 1958); Milo v. State, 214 S. W.
2d 618 (Tex. ~~CriIhiG1948).:.’ ._
i.’ .,;, ,:
pa 1500
The Honorable Guy Hardin page 4 (H-324)
Since the determination of whether error was committed is properly
the function of an appellate court, we must decline to.answer your second
question.
SUMMARY
If the district attorney is present and is
not otherwise disqualified, the district court
lacks jurisdiction to appoint either the county
attorney or an attorney pro tern to work with
a grand jury.
Very truly your*,
Attorney General of Texas
&a
DAVID M. KENDALL, Chairman
Opinion Committee
p* 1501