OFFICZ OF THE ATTORNEY GE:NERAL OF TEXAS
AU5TlN
IIonorabla George Fi. Sheppard
Coqtrollsr of Publia ;iocou.nt.8
Austin, Texas
Dear air:
Article 3882,
otatad Civil
stated qclestion rezds
“I will thank you to return this file with
your r0Dlj.”
%I-, B. L, Teoigleton states In his letters of Septm-
ber 14th and Sapte~nber 20th, 1943, thst ha has bean appointed bg
the District Judge as authorized by Article 31 of the Code of
Criainal Procedure.
se-
86
1_
Honorable Cso. B. Shepprd, page 2
The order of the District Judge a>poieting Xkxr.
Templeton reads aa follows:
“33 IT That upon t&s oonvoning
~?;‘~~X’SI~:IR%D of
the regular Se$%aber tsrs of this Colurt, it appear-
ing and htving bezn aId% ‘known that the regularly
;F;teftD;$rlot .itborney will be ab%%nt during thti
therefore, the duty of this Court to
a;lpoii*t a S~eoial District .;ttorney t3 perform all
ti;e duties of the regularly elected Xstrict .-.ttorneg
during his absence.
“It ia, therefore, ordered that B. L. Te.mplBton,
a ragularly licensed attorney of this District, be
and he is hereby aspointed S~ofsl District Att:>nieg
for this term of this Court, upon his tsking the
oath as prescribed by law.
of Tex-:s .v
In co~1plisnoe with the above mentioned order I&-.
T%inal%ton after his appointment by the District Judge took tha
following oath:
“I, B. L. Templeton, do solemnly swear thAt I
will faithfully exeaute the duties of the office OS
Spsoial Distri,ct attornsy of the 32nd Judioisl Die-
trict of Texls, and ~1.1.1 to the best of my ability
prenarva, protaot and defend the Constitution and
law% of the United States and of this Stat%; and I
furthermore aolemnlp swear that I have not direotly
nor indirectly paid or offered or promised to pay,
contributed nor promised to contribute any aoney
or valuabls thing a% a reward for being appointed
to this office, 60 help ae God.
“B. L. Templeton
“-
uSv;~~n to and subscribed before me, at Sweat-
water, Texas, this the f3th day of Septe.*ber, A.
De 1945.
%? tle Robertson
---F
“Cler -EfYZiZ~~~XGurt
of Nolan County, TeraJ.”
atiols 31, Vernon's Lnaotsted c0a-3 0r crhinal Proced-
tare, provides:
Whenever any District or County Attorney
rails to attend any term of the District, County
or Justice Court, the Ju:fie or said Court or such
Justice nay aspint some competent attornay to
perform the duties of such District or County
Attorney, who shall be allowed the saae compenas-
tion for his services as ia allowed the District
;Ittornsy or County Attorney. Said a;point :ient
shall not extaod beyond the term of the Court,
at which it Is made, and shall be vacated upon
the apgearance of the Distriat or County Xttor-
ney.”
House Bill NO. 717, Acts OI tk 48th Legislature,
aegul3.r &ssiOn, 1843, r%d.ds, in plrt, a3 rOliCW3:
"Saction 1 T&t
any person holding a State
or District ofhice in the Stste of Texas, whether
as a meabeer of the executive leglslitise or judi-
cial departments, when cnlle d into the military
service of either the State or Uational Ooverrxnents,
is hereby authorized to file with the Comptroller
or Pub110 AoQounts or the St-lta, a statement OF
certificdtc in writ&, to the effect that he
waives the paynent of his salsry or pay or the
emokaenta of hia said office during the neriod
of his military service sod authorlting the sey-
mdnt 0r such salary, pay or emolunents of hi8 of-
Honorabl,e Geo. 8. dheppard, p-~ge 4
flus to any other person, who, ui?dar the provl-
~~02s of any lsw of this State is appointed or
elaoted to temporarily fill auoh 0lVil office
during the absence of such officer, elibh Wailer
or agsignaent to t%rtinat% im’ediately U~OU th6
release op discharge of said officer lrora such
5liiitery service.
“SBO. 2. Such waiver OF assignment eb311 be
sufficient authority for the Comptroller OP Pub-
110 Aoaounts of the Stste of Texas to Fame State
rarrauta and to pay such person 80 holding such
oftioer’o position during hla abeenoe in mili-
tary aervioe out of appropriations mU% by the
Legislature for such offioe.
“Se,. 3. The filing with tie Comptroller
oP Publio nocount% of the State of Tex,ss of soch
waiver or assignneat provided for in this Act
shall never bs oonstmed by x~y Court of this
Stat+ to be a resi@Btion from his office by
the p6S5On entering the ailitary sorvlce of the
State. or Elation l,,Governs%nts OS that hia of-
fice is vaoant ;i*y reason thereof.”
‘tie haye carefully considered ;Irticlea 323 snd 38S2,
?ernon*s Annotated Civil 3t:ltut*s, in coniieotion with your r%-
quest and it is our opinion that these articks are riot appli-
oable to the qu%stion presented in golur inquiry.
The Su?re,m Court of thLs state in the ease of
Fowler v. s, 3 S, W. 255 constmfng Adlcle 39 of the
Code63Xtrfnal Prooadure, ( now Arti0l.e 31, Vcrnoa~s Anuota-
ted Code of Criminal Procedure) mid;
“Artiole 39 of the Code of Crizlfnal Trocedure
authorizes the Distriot Judge, wheuever tha District
and County Attorney fail to attend any term of the
Court, to appoint ~0~10 coqmtent attOxa6y to perform
their duties during such tern,, S5oh appointee repre-
sents the state in all matters in which it my be
interested that my arise during the tern.. ‘The state
ie intsrea.ted In a quo werranto proceeding If& the
pmsent, And its representative la namd in the statute
as the propur person t0 fil% the informtion; and tbia
-Honcrirbls Gee, li. Sheppard, page S
infomatlon was tllcd during the term of the court
at which Cheffee was appointed, and dur13g the abaenoe
of the district and ooimtg attorney. The abova arti-
cle does not require the a?polntee to give bond, as
does artlole 244, Rev. St,, which provides for an appoint-
aeat by th8 qov_nIYIor when the office b8com?s vuoazt,
&mover, Chaffes, who was made district attorney pro
tea, in tha absence of tha regular attorney oi the stats,
Wa8 reeogalzed a8 such by the oour t, and as the pro par
Off! c&c to file tIMa LlfsrTk~tion, and he WC36st least
e deel’fecto distriot attormy, whose authority cmld not
be attackad in this o~llatersl roamer.”
In vi3w of the foregoing authorities, we respectfully
anmar the above stated quaation in the negnt ive.
The file which was attached to your inqairg is re-
turned herewith.
Xsslstsnt
bYYlEP
Enol,