Case Information

*1 I OFFICE OF THE AllORNEY GENERAL OF TEXAS AUSTIN

Roaorable W. 9. Barron, Judge

85th Judlaial Dlstriat

Bryan, Texas

Dear Sir:

the opinion of

Your letter of May 89 thie department on the quest in part, a8 :ollow~ :

n the follow- againat ing matter: maa

County Attorney y, before a regularly ary requested that I organized Grand

to advise the Grand I conaldered whether etenta or appoint a the conditions to mn County Bar ae County Mr. John R. Grace 0r lnted’to this place, nfter two reasons unty had refused assigning Graoe advised with the Grand Jury.

one bribery and the other theft. :B dlmnlesed on the n&ion of the Tern, and the Felony indictment went to trial and consumed three daya and until mid-night the third dey, when a Jury returned a terdlct of not guilty.

wPleaae inform me ae tollowe:

“1. Doea Robertson Count7 have the authority to Pay the Attorney Pro Tern for hia. aerviaeal

“(a) Xi ao should a reasonable fee bb ,ilxed by me and aertlfied to the Comalsalonsr~r Court, or *2 Honorable W. S. Barroll, page a

*(b) Should an amount be determined based on the time given by tb Pm Tern In ths proparatlon That 18, ii two week8 wera

and trial of the oass.

oonaumad should be an amount 8qual to one-half oi month’s salary paid the County Attorney. ***”

Am YOU kSOW, Of OOUBO, Art1010 4399, ~OIpILo~‘8 hIIOta- ted Ciril Statute8, doe8 not authorize thir department to render Dlstriot nitton opinion Judge8 of this Statei however, under the partloular olroumstanorr and raOt8, we maim an uoep- tion in thir ill8taJlOIr thr A8 wo underrtand your rrqurrt, County Attornoy was undrr lndlotmsnt Grand Jury of Robert- aon County, 8aId oounty doer not ha?8 a Dlstrlot Attorney.

Thsrerors, a8 heretororo otated, ws makr an sxoeptlon In answer- ing your r8que8t.

Artlols 31, Vernon’8 Annatated Codr ot CrIainal FToosdure, prorldes 1 rail8

‘Whsnevsr sny dletriot or county attOrn to attend any term of Diatriot, County or Justiar Court, the Judg8 ot said Court or sush Justlor may ap- to perform the dutier pofnt 8oae oonpetrnt attorney County Attorney, who shall be al- or ruoh Dietriot lowed the same oompansation for his serrloes as al- lowed tha DIstrIot Attorney or Attorney. Said shall not oxtend beyond the term of appolntnmnt oourt at whloh it is madr, and ohall br taoated upon th8 appearanor of ths Dlstrlot or County Attorneg,m 3i3;. Vernon’8 Annotated Code oi CrImlnal Rooaduro,

Artiole reads as fOllOW8:

wDIatriot md oounty attorney8 shall not bs oi oounsel adversely to the Stats in any sass, in any oourt, nor shall they, after odes8 to b8 suoh otrioers, be of oounsel advsraely to the State in any oaae In whioh th8y haV8 been ot oounasl for the Stats,”

.r *3 r. ;: 1.

Honorable iY. 2. Barron, page 2 the Judge or Juatlae power,

Bxeroislng hi8 statutory may appoint any oompetent attorney or a8mber or the Bar to per- r0r0 the dutier or District Attorney County Attorney. Thla power may be properly 8xeroised when there 8xIstr a vaoanoy In 0rri06 0r the District or County Attorney, where th8 Dlstrlot or County Attorney is tmporarily dirrablrd to aot, or in shy par- ease where there aay l Xi8t 8pOOIal r4a10118 why the Distriot tIoular or County Attorney should not sot, It has baa held that a oompet- ent attorney may be appoint46 to aot on behalf of the State a8 ah assistant 0r the State.8 04~~841, in a runmary DrooedIning for *ia the removal of osunty attorney or other .oounty oflioer. (Sea

?* Stat., 49 Ter. 645) B-&t vm State, 29 Tuar, 902; State Y* &nZal48, 26 lb, 1998 Daniel8 v. State, 99 S. W. 216)

A8 the County Attorney was under IndIot&t Grand Jury, he oould not repreeent suoh prooeedinep, the State a8 there wa8 no D1strIot .Attorney In ,aaId County to perform suah du- tier, it Is olear that Dirtriot Judge had authority to appoint a oounty attorney pro +a~ to perform ouoh servioes. oonsldered

We hata oareiully th8 ease Uf~Voges v. Shepherd, 9. W. (Zid) 8&l, In oonneotlon with questions under oonsldera- tion and bsll~ve that this oase has no applioation to the question8 Presented.

We do not believe that Artiole 26, Vernonte Annotated Code oi Criminal Rooedure, has any applioation to the questions under Consideration, but that thr question8 presented In your Inquiry, are 6overned by the foreSoIng l tatuta8 and authorities. Artlole 31, supra, that wherr a Oompetent attorney 4Ipresely provid88 performs the duties ot oounty attorney, suah attorney shall be allowed the ssme oompensa- tion for his SeIvIOO8 as allowed to the oouuty attorney. The oounty oil Robertson Oounty are compensated on aa annual salary OtiIoials baris and the oounty pays the’ salaries of suoh ofiioia,)r. Therefore, answer your rirst question *e respeottully In the afi:rmatlve.

We now ooneldrr your seoond and third questions. Although etiole 31, supra, does not 8peoIfioally provide that the 8alary of the oounty attorney pro ten shall be dstermlned by the number of days he serves, we believe the most praotloable way of oalaulatIn2 us oompensatlon Is to divide the annual salary of the oounty attor-

.’

fbnorable W, 9. Barron, page 4

nay by three hundred and sixty-five and multiply WOtl4nt by the number of days aotually served by suoh county attornry Pro t4& It ir noted that you state the oounty attorney served three days It la not stated how much time aotual trial of the saae. the oountg attorney pro tea rened with the Grand Jury Inveatiga- aasa It is our opinion that the oounty attorney involved. ting pro tam la entitled to oompensatlon~ iron the county npoa the baa18 heretoron rtated the tine he served a8 oounty attorney ~0 tom before the Grand Jury and for the tIne aotually ongaged in the Is our further opinion the oounty trial or the oases attorney pro tern would not be entitled to any ooapensation for the rpent in the preparation oi the ease. In other worda, all tfae to whioh he would be entitled would be the time the oompenration apent with the Grand Jmy and ror the time spent In the aotual trial th4 oase.

Wa believe that what has been said heretotore answers both your aeoond and third question; therefore, It is unnecessary to dls- 0~88 ruoh que8tIona rurther.

Yours very truly ATTCRNBY GENHUL OF TEXAS /-&4L?edL BY Ardell William8 Assistant