Case Information

*1 The Attorney General of Texas

November 9, 1979

MARK WHITE

Attorney General Opinion No. MN- 8 0

Honorable Rene A. Guerra Criminal District Attorney Pro Tern Re: Compensation of the District

Hidalgo County Courthouse Attorney Pro Tern Hidelgo Edinburg, Texas 78539 County.

Dear Mr. Guerra:

You inform us that you have been appointed to be district attorney pro tern for Hidalgo County pursuant to article 2.07 of the Code of Criminal Procedure. At the time of your appointment you were an amistant district attorney for Hidalgo County. You are presently receiving the same salary you earned as assistant district attorney and wish to know what compensa- tion, if any, you should receive as district attorney pro tern. The situation arose when the district attorney was disqualified and your question involves the salary paid the district attorney pro tern during the period of disqualification. See V.T.C.S. art. 332d, S 10.

Article 2.07 of the Code of Criminal Procedure provides as follows: (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 perform the duties of his office, or in any instance where there is no attorney the state, the judge of the court in which he represents may appoint any competent attorney to perform the duties of office during absence disqualification of the attorney for the state.

(b) If the appointed attorney is also en attorney for the state, the duties of the appointed office are additional duties of his present office, and he is not entitled

(c) If the appointed attorney is not an attorney for state, he is qualified to perform the duties of the office for the period of absence or disqualification of for the state on filing an oath with the *2 (RW-80) - Page Two clerk of the court. He shell receive compensation in the same amount and manner as an attorney appointed to represent an indigent person.

(d) In this article, ‘attorney for the state’ means a county attorney, a district attorney, or a criminal district attorney.

An attorney for the state who is appointed district attorney pro tern is not entitled Sec. (b). “Attorney for the state” is defined in section (dl as “a county attorney, a district attorney, or a criminal district attorney.” We do not believe an assistant district attorney is an attorney for the state within the meaning of section 2.07. Other statutes distinguish between the district attorney and his assistants. The is an elected official. V.T.C.S. art. 326k-1, S 1. The assistant district is appointed by and subject to removal by the district attorney. V.T.C.S. art. 332a, SS 1 - 4. The definition of “attorney for the state” applies to all of article 2.07 of the Code of Criminal Procedure. If “attorney for the state” included assistants, then article 2.07 would permit the court to appoint an assistant district attorney pro tern. The Court of Criminal Appeals has, however, stated that the predecessor of article 2.07 did not authorize the judge to appoint an assistant district attorney. Locklin v. State, 75 S.W. 305 (Tex. Crim. App. 1903). Construing article 2.07 to authorize the appointment of an assistant district attorney would also bring it into conflict with article 332a, V.T.C.S., which permits the prosecuting attorney to choose his own assistants. We conclude that you should be compensated for your work as district attorney pro tern as provided article 2.07(c).

You next ask whether the State of Texas or Hidalgo County is responsible for paying your compensation as district attorney pro tern. Article 2.07 of the Code of Criminal Procedure provides “compensation in the same amount and manner as an attorney an indigent person.” Article 26.05 of Code of Criminal appointed to represent Procedure provides in part:

Section 1. A counsel appointed to &fend a person accused of a

felony or a misdemeanor punishable by imprisonment, represent an indigent in a habeas corpus hearing, shall be paid from the general fund of the county in which the prosecution was instituted cr habeas corpus hearing held, according to the following schedule:

(a) For each day or a fractional part thereof in court representing the accused, a reasonable fee to be set by court but in no event to be less than $50.. . .

Other sections provide minimum fees for each day in court on specific kinds of suits and for prosecuting appeals. The statute requires the court to set a reasonable fee above a stated minimum, to be paid from county general fund. See Attorney General Opinion H-544 (197 51. *3 - Page Three (Mw-So)

Article 332b-1, V.T.C.S., governs the payment of the criminal district attorney Hidalgo County. It lists a number of counties, including Hidaigo, and then states as follows:

in ail of which counties there is either the office of criminal

district attorney or the office of county attorney performing duties of a district attorney, the official performing such services shall be compensated for hi services by the State. . . .

V.T.C.S. art. 332~1 (emphasis added). In our opinion, the underlined language refers It either the criminal district attorney or the county attorney who performs his duties. does not require to compensate other persons who perform duties a such as a district attorney pro tern, or an assistant district attorney who is authorized “to perform all duties imposed by law on the prosecuting attorney.” V.T.C.S. art. 332a, S 3.

SUMMARY An assistant district attorney who is appointed district attorney pro tern should be compensated for his work in that capacity pursuant to article 2.07(c) and 26.05 of the Code of Criminal Procedure. His compensation comes from the county general fund.

&*

Attorney General of Texas JOHN W. FAINTER, JR.

First Assistant Attorney General

TED L. HARTLEY

Executive Assistant Attorney General

Prepared by Susan Garrison

Assistant Attorney General

APPROVED:

OPINION COMMITTEE

C. Robert Heath, Chairman

Jim Allison

David B. Brooks

Walter Davis

Susan Garrison

Rick Gilpin

William G Reid

P. 245