July 27, 1973
The Honorable Timothy D. Eyssen Opinion No. H- 72
County Attorney
Wichita Falls, Texas 76301 Re: Interpretation of Arti-
cles 2.01 and 2.07, Code
of Criminal Pr,ocedure
RQ 246
The Honorable Robert S. Calvert
~‘Comptroller of Public Accounts Reduction of salary for
Austin, Texas 78744 the District Attorney
of the 30th Judicial District
Gentlemen: RQ 246A
Each of you have submitted a question to us growing out,f: t&e
same basic ‘fact situation.
At soni8 time prior to May of 1973, Jimmy R. Phagan was elected
District Attorney of Wichita County, Texas.
On May 11, 1973, Cause No. 93,47Oa, styled The State of Texas
v. Jimmy R. Phagan, in the 30th District Court of Wichita County,
Texas, commenced to trial resulting in a verdict of the jury finding,
in the words of the judgment, that, “The Defendant, Jimmy R. Phagan,
is guilty of a series of woeful, illegal acts amounting to professional
misconduct, any one of which acts would justify and warrant the disbar-
ment of the defendant from the further practice of law. ” It is our under-
standing that the acts did not, however, involve Mr, Phagan’s perform-
ance of his duties as District Attorney. The judgment of the court entered
on that date was that Jimmy R. Phagan be disbarred as an attorney-at-law
and may thereafter exercise none of the privileges and prerogatives of the
office of an attorney-at-law.
On the 11th day of June, 1973, the three judges of the District Courts
of Wichita County signed what is denominated~.an Order Appointing a Dis-
p. 315
The Honorable Timothy D. Eyssen
The Honorable Robert S. Calvert, page 2 (H-72)
trict Attorney Pro Tern. It recites that “on the 11th day of June, 1973,
the district attorney of the 30th Judicial District failed to attend court
and represent the state in various criminal prosecutions . . . .‘I It
ordered, ostensibly under the authority of Article 2.07 of the Code of
Criminal Procedure, that WilIiamV. Browning be appointed District
Attorney pro tern of the 30th Judicial District. “This appointment
shall not extend beyond the present term of the district courts of With-
ita County. I’
Mr. Phagan filed on the same date his “motion excepting to court
order” asserting that he had not failed to attend any term of court and
for the .further reason that he was not notified of the action prior to the
time it was signed. He prayed that the filing of the~order be denied
until such time as a hearing could be.held to determine the truth of the
matters therein asserted.
On June 15, 1973, ,Mr. Calveit, as Comptroller of Public Accounts
of the State, requested our opinion as td whether his department would
have authority to withhold the salary of Mr. Phagan.
On June 19, Mr. Eyssen, as County Attorney, asked two questions:
“1. Would Judge Murray’s ‘rendering judg-
ment’ by the above referred to letter effectively
‘absent’ the district attorney under Article 2.02
Code of Criminal Procedure; and,if so,
“2. Do the duties of’the District Attorney
in such a case autamatically devolve to.the County
Attorney until a permanent appointment by the Gov-
ernor can be made, or do the District Judges have
the power to appoint a District Attorney pro tern as
they have done? ”
We are advised that subsequently, on June 29, 1973, an order en-
titled “Order Re-appointing District Attorney Pro Tern” was entered by
which it was ordered that Mr. Browning be appointed as District Attorney
pro tern for the July term of the 30th District Court beginning on July 2,
1973.
p. 316
The Honorable Timothy D. Eyssen
The Honorable Robert S. Calvert. page 3 (H-72)
We understand that Mr. Phagan is appealing from the order of dis-
barment and that no proceeding has been filed nor has there been any
hearing in any proceeding to remove him from office as the District
Attorney.
Article 332, V. T. C. S., enacted in 1876, reads:
“No person who is not a duly licensed
attorney at law shall be eligible to the office
of district or county attorney. District and
county attorneys shall reside in the district
and county. respectively, for which they were
elected; and they shall, as soon as practicable
.after their election and qualification, notify
the Attorney General and Comptroller of their
post office address. I’
It is our opinion that the office of District Attorney is a constitutional
office created by Article .5, $ 21 of the Constitution [Moore v. State, 57 Tex.
307 (1882)]. Article 332 does no more than state qualifications for election
to the office of District Attorney. It does not provide for removal of a
District Attorney who creases to be “duly licensed. ”
Removal of District Attorneys is governed by 5 7 of Article 15 of the
Constitution which says:
“The Legislature shall provide by law for
the trial and removal from office of all off=6
of this State, the modes for which have not been
provided in this Constitution.
There is no other provision in the Constitution for removal of District
p. 317
The Honorable Timothy D. Eyssen
The Honorable Robert S. Calvert, page 4 (H-72)
Attorneys. As for County Attorneys and other county officers, see Arti-
cle 5, $ 24.
The basic legislative provisions for removal of. officers are found
in Title 100 of the civil statutes commencing with Article 5961. The first
three statutes have to do with impeachment. (Articles 5961 to 5963, Ver-
non’s Texas Civil Statutes). Article 5964 has to do with the removal of
certain specified judges and other state officers by address. Articles
5965 through 5966 have to do with removal of various judges by the Supreme
Court.
Article 5966a creates the State Judicial Qualifications Commission.
Article 5967 calls for removal of certain specified officers by the Cover-
nor. Article 5968 provides. that convictions for various crimes shall work
an immediate removal. Article 5969 provides that an appeal fromanorder
of removal supercedes the judgment with some exceptions.
We then come to Article 5970 which provides, in part:
“All district and county attorneys, county
judges . . . may be removed from office by the
judge of the district court for, incompetency, of-
ficial misconduct or beco~ming intoxicated bydrink-
%ng ixitoticatirig ~liq~uor; as a beverage;. whether on
duty or not; . . . .” (emphasis added)
Article 5971 requires that in every case of removal named in Article
5970 the cause shall be set forth in writing “and the truth of said cause or
causes be found by a jury. ” Article 5972 as amended (A,cts 1971, 62nd Leg.,
p. 1110, Ch., 241) defines “incompetency” as used in Article 5970 as follows:
“By ‘incompetency’ as used herein is meant
gross ignorance of official duties, or gross care-
lessness in the discharge of them; or an officer may
be found to be incompetent when, by reason of some
serious physical or mental defect, not existing at
the time of his election, he has become unfit or un-
able to discharge promptly and properly the duties
of his office. ”
pi 318
The Honorable Timothy D. Eyssen
The Honorable Robert S. Calvert. ,page 5 (H-72)
Article 5973 defines official misconduct as follows:
“By ‘official misconduct, ’ as used herein with
reference to county officers, is meant any unlawful
behavior in relation to the duties of the office, wil-
ful in its character, of any officer intrusted in any
manner with the administration of justice, or the
execution of the law; and includes any wilful or cor-
rupt failure, refusal or neglect of an officer to per-
form any duty enjoined on him by law. ”
Article 5975 provides that officers who~‘are required to give official
bonds may be removed from office for failing to give them.
Article 5976 provides:
“The proceedings for the removal of said
officers may be commenced, either in term time
or vacation, by first filing a petition in the district
court of the countywhere the officer resided, by
a citizen of the State who has resided for six months
in the said county where he proposes to file such pe-
tition, and who is not himself at the time under in-
dictment in said county. ” ;
Article 5977 sets out the requisites of the petition; Article 5978
requires that the case be. submitted under a proper charge to a jury;
particle 5979 requires citation; Article 5980 provides for an answer;
Article 5981 provides how the trial shall,be conducted. Article’ 5982
provides that, after the issuance of the order for the citation required
by Article 5979 the district judge may temporarily suspend the person
from office and appoint for the time being some other person to discharge
the duties of the office.
Article 5970, therefore, governs the removal of district attorneys;
Article 332*does not. Also see Articles 5984, 5986. Because there has
been no removal proceeding brought against Mr. Phagan in accordance ’
p. 319
The Honorable Timothy D. Eyssen
The Honorable Robert S. Calvert, page 6 (H-72)
with the applicable statutes, he still is the District Attorney of the 30th
Judicial District of Wichita County, we think. Whether under the statutes
a cause exists for his removal is a question upon which we do not pass.
It is our opinion, however, that until Mr. Phagan is removed from office
in accordance with the statutory procedures, he remains the District A,t-
torney. Compare In re Laughlin, 265 S. W. 2d 805 (Tex. 1954); Gordon
v. State, 43 Tex. 330, 339 (1875). It is our opinion furthermore that the
order disbarring Mr. Phagan is not sufficient by itself to warrant the ap-
pointment of somebody to replace him.
The Code of ,Crimiual ~Procedure: in~its Chapter,‘2’~outlinesthe duties of
vaiious officers including district attorneys. Sec. 2.07 as amended by
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 pe~rform the duties of his
office,, or in any instance where there is no at-
torney 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 disqualification of
the attorney for the state. ”
In subparagraphs b and c it contemplates that another attorney for
the state, defined as including county attorney, district attorney, or ctiim;
inal district attorney, might be appointed.
Article 2.02 provides, in part, that in the absence of the district
attorney, the county attorney shall represent the state alone.
Prior to the complete revision of the Code of Criminal Procedure
in 1965, Article 26 of the code contained essentially the same provision
which we have quoted above from Article 2.02. Article 31 contained the
same provisions as are now contained in 2.07. In Attorney General Opi-
nion No. O-2531(1940), it was said:
p. 320
The Honorable Limothy D. Eyssen
The Honorable Robert S. Calvert, page 7 (H-72)
“Article 26 and Article 31 must be construed
together, and when so construed, it is clear that
the Legislature has made it the duty, and it likewise
the right, of the county attorney to represent the
State in district court in the absence of the district
attorney. In the absence of the district attorney,
the duty and the authority to represent the state in
the district court is conferred by the statutes upon
the county attorney, and it is not contemplated, nor
is it necessary, that the court should designate the
county attorney as district attorney pro tern. It is
only when the district attorney and the county attor-
ney are absent that the court is authorized to appoint
a district attorney pro tern.. In a Letter Opinion ad-
dressed to the Honorable Cullen D. Vance, County
Attorney, Edna, Texas, on February 12, 1935, this
Department ruled that a district judge is without
authority to appoint an attorney pro tern to repre-
sent the state when either the distritit attorney or
the county attorney is present. We are of the opinion
that this ruling correctly states the law upon this sub-
ject. ”
Where a statute has been administratively construed for a long
time and the Legislature, though presumably aware of the interpreta-
tion,~ made no change that would indicate a contrary intent, the admin-
istrative construction is entitled to great weight. Burroughs v. Lyles,
181 S. W. 2d 570 (Tex. 1944); Heaton v. Bristol, ,317 S. W. 2d 86 (Tex.
Civ. App. , Waco, 1958, err. ref). And see Calvert v. Kadane, 427 S. W.
2d 605 (Tex. 1968).
It is our interpretation of Articles 2.02 and 2.07, Texas Code of
Criminal Procedure, that they apply only in the event of a temporary
disqualification as in one case or absence for a terminable period of
time. They do not apply to the removal of an officer and if the district
attorney is removed in accordance with the Constitution and Title 100 of
the statutes, the vacancy must be filled by the Governor in accordance
with $12 of Article 4 of the Constitution.
Therefore, to answer Mr. Eyssen’s questions,, we would state that,
provided the county attorney was available at all times (a fact question
which we do not answer), Article 2.02 of the Code of Criminal Procedure
p. 321
The Honorable Timothy D. Eyssen
The Honorable Robert S. Calvert, page 8 (H-72)
did not authorize the district judges or any one of them to appoint a dis-
trict attorney pro tern and, further, any temporary appointment made
pursuant to Article 2.07 could validly be made only for the period of ab-
sence or disqualification and not for a term of court oi some other period.
We answer Mr; Eyssen’s second question that under Article 2.02
of the Code of Criminal Procedure, if the district attorney is absent or
disqualified and the county attorney is available to serve, the duties of
the district attorney devolve automatically upon the county attorney.
The Comptroller’s question involves construction of Article 327
of the Revised Civil Statutes:
“When any district attorney shall fail to
attend any term of the distrfct court of any
county in his district, the district clerk of such
county shall certify the fact of ‘such failure un-
der his official seal to the Comptroller, and
unless some satisfactory reason for such fail-
ure his shown to the Comptroller, such district
attorney shall receive no salary for the time
that he has.,60 failed/to attend. ”
The district clerk on June 11 did certify pursuant to that article.that Mr.
Phagan “has failed to attend Court and represent the State of Texas in
various criminal prosecutions now pending in the District Courts of
Wichita County, Texas. ” Mr. Phagan has responded by a letter denying
that he had failed to attend any term of the court up to the date thereof,
June 18. We have heretofore cited that letter. .
We believe it is up to the Comptroller to determine the facts under
a procedure according Mr. Phagan.due process, i.e., he should have
notice and an opportunity to present evidence to confront the district clerk.
Should the Comptroller, after such a hearing, determine that the district
attorney had failed to attend any term of court without a satisfactory rea-
son for such faailure, then the Comptroller would have authority to withhold
the salary of the district attorney for the time he has failed to attend but
not for any other period, unless, of course, he is removed from office.
p. 322
The Honorable Timothy D. Eyssen
The Honorable Robert S. Calve& page 9 (H-72)
SUMMARY
A District A,ttorney is subject to removal from
office only pursuant to the statutes for removal and
may not be summarily removed and replaced by an
ex parte order of the district courts. If he is tempo-
rarily disqualified or absent and there is a qualified
County Attorney in the county, then the County Attor-
ney shall serve as District Attorney under A,rticle
2.02 of the Code of Criminal Procedure. If he is
permanently removed, then any replacement is to be
appointed by the Governor.
If the District Attorney absents himself without
satisfactory reason, a fact to be’determined ~by the
Comptroller under due process, then the Comptroller
shall withhold his pay for the pekiod of time of his ab-
sence.
DAVID M. KENDALL, Chairman
Opinion Committee
p. 323
Untitled Texas Attorney General Opinion
Combined Opinion