July 27, 1973
The Honorable Timothy D. Eyssen County Attorney Opinion No. H- 72 Wichita Falls, Texas 76301 Re: Interpretation ofArticles 2.01 and 2.07, Code of Criminal Pr,ocedure RQ 246 The Honorable Robert S. Calvert

~‘Comptroller of Public Accounts Austin, Texas 78744 Gentlemen: Reduction of salary for the District Attorney ofthe 30th Judicial District RQ 246A Each ofyou have submitted aquestion to us growing out,f: t&e same basic ‘fact situation. At soni8 time prior to May of 1973, Jimmy R. Phagan was elected District Attorney of Wichita County, Texas. On May 11, 1973, Cause No. 93,47Oa, styled The State of Texas v. Jimmy R. Phagan, in the 30th District Court of Wichita County, Texas, commenced to trial resulting ina verdict ofthe jury finding, inthe words ofthejudgment, that, “The Defendant, Jimmy R. Phagan, is guilty ofa series ofwoeful, illegal acts amounting to professional misconduct, any one ofwhich acts would justify and warrant the disbarment ofthe defendant from the further practice of law. ” Itis our understanding that the acts did not, however, involve Mr, Phagan’s performance ofhis duties as District Attorney. Thejudgment ofthe court entered onthat date was that Jimmy R. Phagan be disbarred as an attorney-at-law and may thereafter exercise none ofthe privileges and prerogatives ofthe office of an attorney-at-law. On the 11thday of June, 1973, the three judges ofthe District Courts of Wichita County signed what is denominated~.an Order Appointing a Disp. 315The Honorable Timothy D. Eyssen

The Honorable Robert S. Calvert, page 2 (H-72)

trict Attorney Pro Tern. Itrecites that “on the 11thday ofJune, 1973, the district attorney ofthe 30th Judicial District failed to attend court and represent the state invarious criminal prosecutions

. . . .‘I It ordered, ostensibly under the authority ofArticle 2.07 ofthe Code of Criminal Procedure, that WilIiamV. Browning be appointed District Attorney pro tern ofthe 30th Judicial District. “This appointment shall not extend beyond the present term ofthe district courts of Withita County. I’ Mr. Phagan filed onthe same date his “motion excepting to court order” asserting that he had notfailed to attend any term of court and for the .further reason that he was not notified ofthe action prior to the time it was signed. He prayed that the filing ofthe~order be denied until such time as ahearing could be.held to determine the truth ofthe matters therein asserted. On June 15, 1973, ,Mr. Calveit, as Comptroller of Public Accounts ofthe State, requested our opinion as tdwhether his department would have authority to withhold the salary ofMr. Phagan. On June 19, Mr. Eyssen, as County Attorney, asked two questions:

“1. Would Judge Murray’s ‘rendering judgment’ by the above referred to letter effectively

‘absent’ the district attorney under Article 2.02 Code of Criminal Procedure; and,if so,

“2. Do the duties of’the District Attorney in such a case autamatically devolve to.the County Attorney until a permanent appointment bythe Governor can be made, or dothe District Judges have the power to appoint a District Attorney pro tern as they have done? ” We are advised that subsequently, onJune 29, 1973, an order entitled “Order Re-appointing District Attorney Pro Tern” was entered by which it wasorderedthatMr. Browning be appointed as District Attorney pro ternfor the July term ofthe 30th District Court beginning onJuly 2, 1973.

p. 316The Honorable Timothy D. Eyssen

The Honorable Robert S. Calvert. page 3 (H-72)

We understand that Mr. Phagan is appealing from the order of disbarment and that noproceeding has been filed nor has there been any hearing inany proceeding to remove him from office as the District Attorney. Article 332, V. T. C. S., enacted in 1876, reads:

“No person who is not a duly licensed attorney at law shall be eligible to the office of district or county attorney. District and county attorneys shall reside inthe district and county. respectively, for which they were elected; and they shall, as soon as practicable .after their election and qualification, notify the Attorney General and Comptroller oftheir post office address. I’ Itis our opinion that the office ofDistrict Attorney is a constitutional office created by Article .5, $21ofthe Constitution [Moore v. State, 57Tex. 307 (1882)]. Article 332 does nomore than state qualifications for election to the office of District Attorney. It does not provide for removal of a District Attorney who creases to be “duly licensed. ” Removal of District Attorneys is governed by 57ofArticle 15ofthe Constitution which says:

“The Legislature shall provide by law for the trial and removal from office of all off=6 ofthis State, the modes for which have not been provided inthis Constitution. There is no other provision inthe Constitution for removal of District

p. 317The Honorable Timothy D. Eyssen The Honorable Robert S. Calvert, page 4 (H-72) Attorneys. As for County Attorneys and other county officers, see Article 5, $24. The basic legislative provisions for removal of.officers are found in Title 100ofthe civil statutes commencing with Article 5961. The first three statutes have to dowith impeachment. (Articles 5961 to 5963, Vernon’s Texas Civil Statutes). Article 5964 has to dowith the removal of certain specified judges and other state officers by address. Articles 5965 through 5966 have to dowith removal ofvarious judges bythe Supreme Court.Article 5966a creates the State Judicial Qualifications Commission. Article 5967 calls for removal ofcertain specified officers bythe Covernor. Article 5968 provides. that convictions for various crimes shall work an immediate removal. Article 5969 provides that an appeal fromanorder of removal supercedes thejudgment with some exceptions. We then come toArticle 5970 which provides, in part:

“All district and county attorneys, county judges

. . . may be removed from office by the judge ofthe district court for,incompetency, official misconduct or beco~ming intoxicated bydrink- %ngixitoticatirig ~liq~uor;as abeverage;. whether on duty or not; . . . .” (emphasis added) Article 5971 requires that in every case of removal named inArticle 5970 the cause shall be set forth in writing “and the truth of said cause or causes be found byajury. ” Article 5972 as amended (A,cts 1971, 62nd Leg., p. 1110, Ch., 241) defines “incompetency” as used inArticle 5970 as follows: “By ‘incompetency’ as used herein is meant gross ignorance of official duties, or gross carelessness inthe discharge ofthem; or an officer may be found to be incompetent when, by reason of some serious physical or mental defect, not existing at the time ofhis election, he has become unfit or unable to discharge promptly and properly the duties ofhis office. ”

pi 318The Honorable Timothy D. Eyssen The Honorable Robert S. Calvert. ,page 5 (H-72)

Article 5973 defines official misconduct as follows:

“By ‘official misconduct, ’as used herein with reference to county officers, is meant any unlawful behavior in relation to the duties ofthe office, wilful in its character, of any officer intrusted inany manner with the administration ofjustice, or the execution ofthe law; and includes any wilful or corrupt failure, refusal or neglect ofan officer to perform any duty enjoined onhim by law. ” Article 5975 provides that officers who~‘are required to give official bonds may be removed from office for failing to give them. Article 5976 provides:

“The proceedings for the removal of said officers may be commenced, either interm time or vacation, byfirst filing a petition inthe district court ofthe countywhere the officer resided, by a citizen ofthe State who has resided for six months inthe said county where he proposes to file such petition, and who is not himself at the time under indictment in said county. ” ; Article 5977 sets outthe requisites ofthe petition; Article 5978 requires that the case be.submitted under a proper charge to ajury; particle 5979 requires citation; Article 5980 provides for an answer; Article 5981 provides how the trial shall,be conducted. Article’ 5982 provides that, after the issuance ofthe order for the citation required byArticle 5979 the district judge may temporarily suspend the person from office and appoint for the time being some other person to discharge the duties ofthe office. Article 5970, therefore, governs the removal of district attorneys; Article 332*does not. Also see Articles 5984, 5986. Because there has been no removal proceeding brought against Mr. Phagan in accordance ’

p. 319The Honorable Timothy D. Eyssen

The Honorable Robert S. Calvert, page 6 (H-72)

with the applicable **statutes,** he still is the District Attorney ofthe 30th Judicial District of Wichita County, we think. Whether under the statutes a cause exists for his removal is aquestion upon which we do not pass. Itis our opinion, however, that until Mr. Phagan is removed from office in accordance with the statutory procedures, he remains the District A,ttorney. Compare Inre Laughlin, 265 S.W. 2d 805 (Tex. 1954); Gordon v. State, 43 Tex. 330, 339 (1875). Itis our opinion furthermore that the order disbarring Mr. Phagan is not sufficient by itself to warrant the appointment of somebody to replace him. The Code of ,Crimiual ~Procedure: in~its Chapter,‘2’~outlinesthe duties of vaiious officers including district attorneys. Sec. 2.07 as amended by Acts 1973, 63rd Leg., ch. 154, p. 356, provides:

“(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 pe~rform the duties of his office,, or in any instance where there is no attorney for the state, thejudge ofthe court in which he represents the state may appoint any competent attorney to perform the duties ofthe office during the absence or disqualification of the attorney for the state. ” In subparagraphs band c it contemplates that another attorney for the state, defined as including county attorney, district attorney, orctiim; inal district attorney, might be appointed. Article 2.02 provides, in part, that inthe absence ofthe district attorney, the county attorney shall represent the state alone. Prior to the complete revision ofthe Code of Criminal Procedure in 1965, Article 26 ofthe code contained essentially the same provision which we have quoted above from Article 2.02. Article 31contained the same provisions as are now contained in 2.07. InAttorney General Opinion No. O-2531(1940), itwas said:

p. 320The Honorable Limothy D. Eyssen The Honorable Robert S. Calvert, page 7 (H-72)
“Article 26andArticle 31must be construed together, and when so construed, itis clear that the Legislature has made it the duty, and it likewise the right, ofthe county attorney to represent the State in district court in the absence ofthe district attorney. Inthe absence ofthe district attorney, the duty and the authority to represent the state in the district court is conferred by the statutes upon the county attorney, and it is not contemplated, nor is it necessary, that the court should designate the county attorney as district attorney pro tern. Itis only when the district attorney and the county attorney are absent that the court is authorized to appoint a district attorney pro tern.. Ina Letter Opinion addressed to the Honorable Cullen D. Vance, County Attorney, Edna, Texas, onFebruary 12, 1935, this Department ruled that a district judge is without authority to appoint an attorney pro tern to represent the state when either the distritit attorney or the county attorney is present. We are ofthe opinion that this ruling correctly states the law upon this subject. ” Where a statute has been administratively construed for a long time and the Legislature, though presumably aware ofthe interpretation,~ made no change that would indicate a contrary intent, the administrative construction is entitled to great weight. Burroughs v. Lyles, 181S.W. 2d 570 (Tex. 1944); Heaton v. Bristol, ,317S.W. 2d 86 (Tex. Civ. App. , Waco, 1958, err. ref). And see Calvert v. Kadane, 427 S.W. 2d 605 (Tex. 1968). Itis our interpretation ofArticles 2.02 and 2.07, Texas Code of Criminal Procedure, that they apply only in the event ofatemporary disqualification as in one case or absence for a terminable period of time. They do not apply to the removal ofan officer and ifthe district attorney is removed in accordance with theConstitution and Title 100of the statutes, the vacancy must be filled by the Governor inaccordance with $12 ofArticle 4ofthe Constitution. Therefore, to answer Mr. Eyssen’s questions,, we would state that, provided the county attorney was available atall times (afact question which we do not answer), Article 2.02 ofthe Code of Criminal Procedure

p. 321The Honorable Timothy D. Eyssen

The Honorable Robert S. Calvert, page 8 (H-72)

did not authorize the district judges or any one ofthem to appoint a district attorney pro tern and, further, any temporary appointment made pursuant to Article 2.07 could validly be made only for the period ofabsence or disqualification and not for aterm of court oi some other period. We answer Mr; Eyssen’s second question that under Article 2.02 ofthe Code of Criminal Procedure, ifthe district attorney is absent or disqualified and the county attorney is available to serve, the duties of the district attorney devolve automatically uponthe county attorney. The Comptroller’s question involves construction ofArticle 327 ofthe Revised Civil Statutes: “When any district attorney shall fail to attend any term ofthe distrfct court ofany county in his district, the district clerk of such county shall certify the fact of‘such failure under his official seal to the Comptroller, and unless some satisfactory reason for such failurehisshown to the Comptroller, such district attorney shall receive no salary for the time that he has.,60 failed/to attend. ” The district clerk on June 11did certify pursuant to that article.that Mr. Phagan “has failed to attend Court and represent the State ofTexas in various criminal prosecutions now pending inthe District Courts of Wichita County, Texas. ” Mr. Phagan has responded by a letter denying that he had failed to attend any term ofthe court upto the date thereof, June 18. We have heretofore cited that letter.

. We believe it is uptothe Comptroller to determine the facts under a procedure according Mr. Phagan.due process, i.e., he should have notice and an opportunity to present evidence to confront the district clerk. Should the Comptroller, after such ahearing, determine that the district attorney had failed to attend any term of court without a satisfactory reason for such faailure, then the Comptroller would have authority to withhold the salary ofthe district attorney for the time he has failed to attend but not for any other period, unless, ofcourse, he is removed from office.

p. 322The Honorable Timothy D. Eyssen The Honorable Robert S. Calve& page 9 (H-72)

SUMMARY A District A,ttorney is subject to removal from office only pursuant to the statutes for removal and may not be summarily removed and replaced by an ex parte order ofthe district **courts.** Ifhe is temporarily disqualified or absent and there is aqualified County Attorney in the county, then the County Attorney shall serve as District Attorney under A,rticle 2.02 ofthe Code of Criminal Procedure. Ifhe is permanently removed, then any replacement is to be appointed by the Governor. Ifthe District Attorney absents himself without satisfactory reason, afact to be’determined ~bythe Comptroller under due process, then the Comptroller shall withholdhis pay for the pekiod oftime ofhis absence.

DAVID M. KENDALL, Chairman Opinion Committee

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