OFFICE OF THE A’TI’ORNEY GENERAL OF TEXAS
AUSTIN
Ecmorable Lfllton Tatum
Dietriot Attorney
Dal&at, Texae v ,
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Dear Sir: Opinion No. O-2328 ‘\ ‘,,
me have reoeivs rein you request
the opinion oi thls depar t4 etated ques-
tions. Your 14ttsr r
44ding;s had In
411 at3 Jud~4
tdot Attorney
diotnent ma returned
4 oa64 In the preoebing
I therspoon contemplates an
nohee with 8onm other MB-
trlot Jwlg4 In the Panhandle In the neer
future in order that a number of oaaee
pending on ths doolcst in whloh lndlotmente
were returned durlx his term of Dietriot
Attorney may ba legally dispotmd of lnolud-
lnr: thle mrdor oaee. :
Honorable Lilton ':ntum, 2%~ 2
"The questions I deslru to propound to
you In regard to this murder case crc; the
followln(;:
"!luostlon 1.
"Co@.d a Dlstrlot Judge appoint a Dls-
trlot Attorney pro tein or ~ppeclcl Dlstrlct
Attorney to try this oase, and if so vauld
thla Dlstrlot Attorney aot and be entitled
to oompenaatlon only du.rlne the aotusl trial
of the owe?
V.uostlon 2.
"Some of the Interested parties desire
to have some attorney appointed In advanoe
and permit Mm to spend, say two woeka ln-
v4stl~atlng the oat34 on the theory that he
could add this time to the actual trial of
the ease and colleot fbr It off of the State
and thereby naka him a reasonable fee for
hls aemrloee.
*Could the State legally pay under theee
oondltlona oompensation for a District Attor-
ney pro ten whll4 lnveatlgatlq a case ln addl-
tlon to t& aotual time ooneutx?d In the trial?
3,.
*Questio'n 3.
"The only authority I ilnd for the ap int-
mat of a Dietriot Attorney pro tan le Artr 014
31 of the Code 02 Criminal Proo4dur4, protidlng
wh4nev4r all7 Dietrlot or County Attorney falls
to attend any &nrm of the Dlstrlot, County or
Juatioe Court the Judge of said Court or suoh
Juatloe may appoint Borne competent attorney to
perform suoh dutld;s of suoh District or County
Attorney, who shall be allowed the same oompensa-
tlon for his s4rvlo4 as Is allowed the District
Attorney or County Attorney. ald appointment
shell not c&end beyond the term of the oourt
to whloh it Is made and shall be vacated u n
the appearanoe of the Dlstriot or County AP tar-
ney.
- *Doeaf;Rls a@&$X_e..ln fnct authorize a Dis-
IBnorable Mllton Toturn, Page 3
trlot Juke to appoint a Dlstriot Attorney pro
ternmrely because I happen to be disquallilcd
in a Given ~144, but I am present and in at-
tendance upon oolrrt?
“Question 4.
*In any event If authotity exists for the
ag?olntmant of a Dletrlot Attorney pro tern and
on4 should be appointed who ccts durl&y the
actual trlsl or perhap in ndvance thereof,
will any oompensatlon to XhIch he Is ontltlod
have to be deducted from my salary?"
Article 25 of the Code of Criminal Procedure reads,
In part:
"Each dlstrlot attorney shall reprosent
the State in all orlmlnal oases In the dls-
trlot oourts of his d%strIot, except in oases
where he haa been, b,tfor,zhis oleotion, em-
ployed adversely.
Art1014 31 of the Code of Criminal. Prooedure pro-
vides:
"Yihenever any dlstriot or county attorney
rail6to attend any term or tho district, ooun-
ty orpustloe*s court, the judge of eald court
or suoh juetioe may appoint competent attorney
to perform the dutlms of 6uoh dlstriot or ooun-
ty attommy, who shall be allowed the IXUW oom-
pentaatlon for hla servloea aa Is allowed ths
dletrlot attorney or oounty attorney. Said ap-
pointment shall not extend beyond the term of
the oourt at whloh It Is made, and shall b4
vacated upon the appearanoa of the distriot or
oountg attorn4y..
W4 quote from 15 Tex. Sur., p. 389:
wExaroleing his statutory power, the jtiGe
may appoint any oompetent attorney or member of
the bar to perform the duties of dlstrlot attor-
ney or oounty attorney. This power mnjr be prop-
erly exercised whero there exists a vocan~y In
the office of district attorney, i>lhcrctho dls-
.,.,’
Honorable hlflton Tatum, Page I
trlot attorney Is temporarily disabled to
aot, or in any partloular case where there
may exlat spsolal reaaona why hn should not
aot. !Th4 6tatut4 Ooniera full power on the
Dlstrlot Court to appoint, without any llm-
It as to ths tlms durlw.whioh inaumbenoy
0r office shall oontinue, exoeptlw that
th4 eppointment may not extend beyond the
term of oourt or the appearance of the regu-
lar officer, and may be terminated at the
pleaeuro or tha OOurtl*~
~llso 444 State VS. Oonzalee, 26 Tex, 197.
It was helb In the case of Bennett vs. State, 27
Tex. 702, that in the absenoe of good oause for refuslnl; an
appolntnent, ths Dlstrlot Judge.nmy snforao Its appointment
02 a district attorney pro tem',by lmposiw an adequate pudeh-
Pent ior the refusal.
Although the etatut%s 4r4 vague on the subjeot, part
of the duties of a dletrlot attorney In representln$ the State
in a criminal eas4 ia to lnvsstlgato and thorou@ly fsmlllarlz4
himself with the faote, in order that he oan properly reprceent
the stat4 In oourt. It oan hardly be said that a dlstrlot at-
torney oould be erpeoted to walk Into court end enter into the
trial of the oaae without flr.st haviq studied and Investigated
lmme.
&
vlsrr of th4 foregoing authorltlolr, you are’respeot-
fully advlao6 that It I# the oplnlon of this departnsnt, in an-
5wec to your flrti an& waolvl questlone, that a dlmtrlot jtige
may appoint a dlstrlot attorney pro tern to dlopose of a orlmlnal
oao4 in whloh tha regularly 4leoted dlstrlot attommy Is die-
qual.lrled~ that such appointment may be ~a44 eufflclently in
advenoo of the trial to give him an opportunity to lnveatlgah
and ramiliarlze hlme4l.t with the faots of the ease; and that
suoh dlstrlat attorney pro tern is entitled to oomponsotlon em-
1~ the entire period of! suoh appointment.
The anenar to your first and seoond questions pre-
cludes the neoesslty of an anmer to your third question.
hrtlole 31, 00de of Criminal Prooedure, aupra, pro-
vides that a dletrlot or oounty attorney pro ten shell be al-
lowed the same compensation for his ner-.~loosss is !;llowsd th4
dlstrlot or oou!ltj'attorney,
Honorable Kilton Tatum, Page 5
Artiole 38&f, Vernon's Civil Statutos, ,reade,ln
part, a8 follow81
"s40.. 1. From and after January 1, 1936,
in all Judlolal Distrlota of this Stat4 the
Dietriot Attorney in eaoh such District shall
receive from tha State as pay for his services
tho sum of Four Thousend Dollars ($&,OOO! per
year, whloh eald Four Thoussnd Dollars (+OOO)
ohall lnolude the Fly4 Hunbrad pollara (,igOCl
salary per par now allowed such Dlstrl~t*A~tor-
ney by the Goastltutlon or this State;
"SOO. 2. All monlss hareteforc approprlat-
ed by the Leglelature to pay fees, s4hrlee and
per diem aooounts of the officers named In this
Aot are hereby reappropriated for the purpoas
of paylng the salarles fired by this Aot.*
Althou& the statutes quoted do not spoclfloelly
provide that the salary of the dlstrlot attorney pro t&m
ehall be determlaed by the number of days he serve&j, w4 be-
lieve that the Imet praotioal way of oaloulatlfig his oompensa-
tlon 1s to divide tlm annual salary of the dlstrlat attorney
,... : by 365 and multiply the quotient by the number of days aotual-
ly served by euoh district attorney pro tom.
In our Opinion No. O-1529, a oopy of whioh 1s enolos-
for your information, It Is held that the regular
ed herewl y),..
,.,.~ Ealary of oouatf /&go Is mt to be reduoed by the amount
.. .that,lo pala to E spoolal Jaalge. We we m reason why the
aam rule should not apply in ln5t5no44 wh4re it 15 neoeaaary
to appoiat a dlatrlot attorney pro ten or special diotrlot
attorney;
;'
Th4reior4; in anmr4r to your iburt& question, it Is
the opinion of this dopartzunt that the regular dlstrlot attor-
ney*s salary Is xnt ta be reduoed by th4 esount that Is pald
to the district attorney pro tern..
Truetl~ that tho forreeolnC fully aumrs your in-
quiry, we renain
Untitled Texas Attorney General Opinion
Combined Opinion