Case Information
*1 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 r0Dlj.” your
%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: IT ~?;‘~~X’SI~:IR%D That upon t&s oonvoning of
“33 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 the duty of this Court to
therefore, 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 the duties of the office OS exeaute 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 *3 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.
%? ---F tle Robertson “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 Said a;point :ient ;Ittornsy or County Attorney.
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, r%d.ds, in plrt, a3 rOliCW3: 1843, 1 T&t any person holding a State
"Saction in the Stste of Texas, whether or District ofhice 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 the paynent of his salsry or pay or the waives 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- *4 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 authority for the Comptroller OP Pub- sufficient 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. 3. The filing with tie Comptroller
“Se,. 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 y reason thereof.” ;i*
‘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 to perform attOxa6y their duties during such tern,, S5oh appointee repre- sents the state in which it my be in all matters 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 t0 fil% the informtion; and tbia person *5 -Honcrirbls Gee, li. Sheppard, page S
infomatlon was tllcd during the term of the court at which Cheffee was appointed, and dur13g the abaenoe The abova arti- of the district and ooimtg attorney. cle does not require does artlole the a?polntee to give bond, as
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 WC36 st 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,