R-555
Hon. W. C. Hancock. a-
Opinion No. V-272
County Attorney, *
Camp County, He: Compensationof Coun-
Eittsburg,Texas ty Attorney when as-
sisting the District
Attorney in the prose-
cution of case8 in the
Dear Sir: District Court,.
We refer to your~letterof June 4, 1947,
which reads in part as follows:
"Artiols 26 of the Cede of Criminal
Frooedure provides, $&spart: 'The County
Attorne &all attend the terms of all
courts f n hie county below the grade of
District Court, and shall represent the
State in all criminal oases under o&d
nation for pxosooution in mold oounty and
in the absence of the District Attorney
he shall represent the State alone, or
when requested shall aid the District At-
torney in the prosecution of any case in
behalf of the State in the District Court,
and in such cases he shall receive all or
one-half of the fees allowed by law to
Distriot Attorneys, aooording as he acted
alone &r c)*lntly:'
mIhasmuch as the dietriot attorney
in this district does not receive fees
and instead is paid a salary I would like
to know whether or not I could bo requuired,
as county attorney, to assist in tha press-
cution of cases in the district court, aha
if so what compensationI would be entitled
to receive therefor."
The 76th Judicial Distriot oonsietr of-,
following counties: Titus, Franklin, Camp, Morris, and
Marion, There is a duly'elected,qualified,and acting
District Attorney in said District.
Hona W, C. Hancock - Page 2
The remainder of Article 26, C. C. P., not
quoted by you, reads as follows:
n e In such oases he shall receive all
0; &e-half of the fees allowed by law to
the district attorney whose duties he per-
forms, or assists in parforming,but shall
receive no part of the constitutionalsah
ary allowed to such district attorneyiac-
cording aa he acted alone or jointly; pro-
vided that fees 00u0Ot0a by the oounty
attarmsy from the State for such services
shall be deducted by the Comptrolleror
Public Accounts from the fees which other-
wise would have been paid to the district
attorney had he represented the Stata a-
long; provided further this articla shall
not be construedas inhibiting any county
attorney from voluntarilyiwith the oon-
srnt of the district attorneys,assisting
the district attornay in.the performance
of hisrespective duties, without oompen-
aatian."
Section 21 or &tic10 V of the State Consti-
tution is in'part as follows;
1)
. . ,The county attorneys shall rep-
resent the State in all oama in the dis-
trict and infrrior oourts in their rrspeo-
tive counties; but if~any county shall be
included in a district~inwhich there shall
be a distritt attorney) the respeotivedu-
ties of district attcmeys and oounty.attor-
neye shall in such counties be regulatedby
the Legislaturr, The Legislaturamay pro-
vida for the election of distriot attorneys
in such districta,as may be deemed neoes-
and make provisions for the compensa-
t?Z'of district attorneys and county at-
torasys; provided, aistrici attorneys shall
reoeive an annual aalary of five hundred
dollars, to be paid by the Btate, and suoh
rees, commissionsand parquisitesas ma be
provided by law* County attornays shal9 re-
oeive as compensationonly such faas, oom-
fya;&-zi and perquisitas as may ba prescribed
Hon. VI.C, tfancock- Page 3
In the case of Voges vr Sheppard, 123 TexL
96, 67 S. Xi. 2d 856, under similar faots as involved
here, the Commission of Appeals had this to say:
“It is at once apparent that a pur-
pose of Artiole 1025 was to respond to
the call of Article 26 for compensation
to the county attorney for the services
prescribed by the latter statute as a
subject for aompeneation. There is lit-
tle doubt that in naming that officer,
along with the district attorney, as a
beneficiary of tke fees prescribed in
::rticle1::25,thr Ugislature haa in im-
mediate contemolationthe orovisions of
the other artic1.eregarding the compen-
sation sf the county attorney in felony
trials:,ai.:i
\;l-.ich,
in express terms
limit such compensationto ‘fees al ow-
ea by law to 'lstrictat%orney5.vIt is
thus seen that the ri?ht of the relator
to fees in cases of felony conviction,
as prescribe& in Article 1025, depends
on whether such fees are allowed to the
district attorney of the district which
embrroos Wilson County. That said ais-
trict attorney is not allowed said fees
is plainly disclosed by the provisions
of Article 1021; for the last-armed ar-
ticle provicies,in substance,that a
district attorney, in a district com-
posed of two or more counties, shall re-
ceive a per diem compensation,depend-
ing upon his attendanceupon the sessirn
of the court in the necessary performancs
of his 0Pf10i81 duty. c *” (Emphasis
added)
The Court thereupon held that a county attrr-
aey was not entitled to a r?anaamus against the Comptrol-
ler to compel him to issue a warrant in favor of the coun-
ty attorney for servioes performed at the request of the
district attmsny in assisting him la felony oases, and
for representingthe State in habeas corpus oases involv-
ing felrnies.
Therefore, in view of Article 26 supra, you
are respectfullyadvised that it is tke opinion of this
.
Hon. 5'1.
C. Hancock - Page 4
Department that the County httormey of Camp County is
required to asaiat in the proseoutionof cases in the
District Court, when request& by the District Attorney;
and rurther, since District Attorneys are no leyer barn-
pensated on a fee basis.,bgt by the payment of an annual
salary, and the Legielaturehas made 50 provision for
compensatingthe County Attorney who assists the District
Attorney in the proeseutlonbf cases in the DistrictCourt
by apportioningto him a.part of the salary to be paid
to the Distriot Attorney, it follows that the County At-
torney is not entitled to compensationror such services
rendered.
The County Attorney of Camp County is
required to assist the District Attorney in
the prosecutionof cases in the District
Courtwhen requested, and further the County
Attorney is not entitled to compensationfor
such servioes rendered, since there is no
statutory provision for the same. Art. 26,
c. c. P.: Voges v. Shep)ard, 67 S. 3. 26
856.
Pours very truly, 1,
ATTORN"EYGENERAL
OFTEXAS
BA:erc:WB
By
&1*Assistant
AmwED
jE&dh?d,
ATTORNEY GENERAL