Since the Artiole authorizes appointment OS an attorney to perform the duties of the regular Mstriot Attorney only ia the instawe whore there is an incumbent OS the office OS Distrlet Attorney vho Sails to attend a term of the District Court, iS the OSSioo of Distriot At- tommy ie vooatod by your entry into tbe niwal service of United ftatea, the appointment would not be authorized. In such oaae there vould ezlst a rimamy in the office of M&riot Attorney to be tilled by apwintfm.It of the Govern- orb Glover I* Albrecht, (4%. App,) lv3 8. 1. WI.

Ye assume that you are prepar%ng to accept and quallSy for an offbe In one OS the RoseIW3 forces OS the United States Davy.

Article lf3, section l3, of our Gonstitution pro- vides 1

*So merabsr ot Congress, nor person holding or exerolsing any ofiice OS proS%t or trust, un- dex theUnitedStatee,or either OS thom,orun- der auy foreign powor, shall be eligible as a member of the U?gislatuFe, or bold or exeroiae any orsioe OS profit or trust this State.' We have heretofore Conetrued the recent dooiaion OS our supreue Court in the case of Oraver t. Qlegvati, as holding that tho exoaption to 167 8.1. (2) of XTTZO 16, Se&ion 12, proviaod in Arti- XlZT$ration a10 18, section 40, eubraaed all those oivil offY.oere OS tNe State vho acquire an office in any OS the ndl.%tary or naval forces oP the'united 8tatce, exoeat $&regulsr_ I&&&- tars Or navul establishments. (See.our Upinlon No. O-M)3ff, hcroto attcmhed).

In vlev OS romnt dovelopvmte, our lnterprota- tion of the court's opinion eeems OS doubtf'ul validity. A fov veelxs ago tho District Attormy of Hueoee County made appllcatfon to the Supreme Court for leave to file in that oourt an orl.gLnal quo warrant0 prooeadina to test the right of a spooial Mstrict Judge elootod by the bar to hold and exercise the oSSioe, alleging that there vas no 8UthOtitp Sor his election, because the regular Distriot Judge had vaoated his offioe by accepting aud qualifying for an OS- flee in the #aval Reticrve. The court granted leave to pile, thou ctiamissed, not upon the uerits, but upon the ground - w- *3 841

Eonorable Gean BO TWWr - page that the Mstriot Attorney had no authority to represent the State in such au aetion in the Supreme Court,

'ibis aation on the part of the court indicates

that it does not regard the Cramer decision as deoidiug the question vhether the proviso nppeuded to Article 13, Seat&on 40, ‘extends to those who enter naval reserve or- I;3nie3tions. We have flldd a motion to reinstate the Nuecea County action, requesting that thim be done to al- loa the Attorney General to oxemise his constitutional right to represent the state ixa the 3upreme Court, to the end that the matter may be determined upon the merits.

Upon this motion the oourt has not yet aotod.

In viev of this eltuatlon wo are unable to ad- vise you whether an appointmoat may be mda under Article 31, Code OS Criminal Frooedure, after you aooept and qualiSy Sor au office in the Nay&l neseme Soroos of the uaited states.

xf such an appciutmeut ‘can be made, hovover , under the Saots in your 0888~ it vi11 not, under the express terms of Artiols 31, extend beyond the term of tho court at vNOh it is inside* House Bill 717, 43th Logielaturo, does not at- tempt to authorize appointments to be mado to praviaa persons to disaharge the duties of those officers who are In the am- ed earPic0e of the Unit&I states. It simply authoriaes pay- meht OS the aompolzsation attaohed to the prinoipnl office, under ocrtain airouvstanees, sto any other person who, under $& provisions Op x &I Op t&&q &&f, is appointed oi;-- elected to temporarily fill such civil offioc during the absence of sucda officer. + * O..

Armvering pour tNird question, if an appointment facts OS your ease ash be trade, appointee ssmt

take the oath of office, but is not requireii to give bond.

The person appoint&l under Article 31, Code of Criminal Pro- ocduro, is an Officer of this State. Ml OfSioere of this State, perSoro0 0P Article Sea,tion 1, 0P the Cunetitu- tlon, as veil a8 Article lb, Berised Civil Statutes, are r* quired to take the oath presoribal by the Constitution, Arti- al0 16, section 1. As to the bond, vhile the statute re- quires the District Attorney to &Are bond, there is no stat- ute requiring a bond of one appointed under Article 31 to discharge the duties of tho District Attorney. Such person *4 lionOraW~ Gean B. Tumor - page 4

do08 not hold the otfioe of District Attornq, but a epoaia1 statutory 0ffioe.

very truly yotlrs ABTTOJW3X WJiJtRAl,, OP Tm a. 61 Fairohild Assistant