July 27, 1973 

The Honorable Timothy D. Eyssen 

County Attorney 

Opinion No. H- 72 

Wichita Falls, Texas 76301 Re: Interpretation of Articles 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 

of the 30th Judicial District 

RQ 246A 

Each of you have submitted a question 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 in a verdict of the jury finding, 

in the words of the judgment, that, “The Defendant, Jimmy R. Phagan, 

is guilty of a series of woeful, illegal acts amounting to professional 

misconduct, any one of which acts would justify and warrant the disbarment of the defendant from the further practice of law. ” It is our understanding that the acts did not, however, involve Mr, Phagan’s performance of his duties as District Attorney. The judgment of the court entered 

on that date was that Jimmy R. Phagan be disbarred as an attorney-at-law 

and may thereafter exercise none of the privileges and prerogatives of the 

office of an attorney-at-law. 

On the 11th day of June, 1973, the three judges of the District Courts 

of Wichita County signed what is denominated~.an Order Appointing a Disp. 315 
The Honorable Timothy D. Eyssen 

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

trict Attorney Pro Tern. It recites that “on the 11th day of June, 1973, 

the district attorney of the 30th Judicial District failed to attend court 

and represent the state in various criminal prosecutions . . . .‘I It 

ordered, ostensibly under the authority of Article 2.07 of the Code of 

Criminal Procedure, that WilIiamV. Browning be appointed District 

Attorney pro tern of the 30th Judicial District. “This appointment 

shall not extend beyond the present term of the district courts of Withita County. I’ 

Mr. Phagan filed on the same date his “motion excepting to court 

order” asserting that he had not failed to attend any term of court and 

for the .further reason that he was not notified of the action prior to the 

time it was signed. He prayed that the filing of the~order be denied 

until such time as a hearing could be.held to determine the truth of the 

matters therein asserted. 

On June 15, 1973, ,Mr. Calveit, as Comptroller of Public Accounts 

of the State, requested our opinion as td whether his department would 

have authority to withhold the salary of Mr. 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 by the Governor can be made, or do the District Judges have 

the power to appoint a District Attorney pro tern as 

they have done? ” 

We are advised that subsequently, on June 29, 1973, an order entitled “Order Re-appointing District Attorney Pro Tern” was entered by 

which it was ordered that Mr. Browning be appointed as District Attorney 

pro tern for the July term of the 30th District Court beginning on July 2, 

1973. 

p. 316 
The 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 no proceeding has been filed nor has there been any 

hearing in any 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 in the 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 of their 

post office address. I’ 

It is our opinion that the office of District Attorney is a constitutional 

office created by Article .5, $ 21 of the Constitution [Moore v. State, 57 Tex. 

307 (1882)]. Article 332 does no more 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 5 7 of Article 15 of the 

Constitution which says: 

“The Legislature shall provide by law for 

the trial and removal from office of all off=6 

of this State, the modes for which have not been 

provided in this Constitution. 

There is no other provision in the Constitution for removal of District 

p. 317 
The 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 100 of the civil statutes commencing with Article 5961. The first 

three statutes have to do with impeachment. (Articles 5961 to 5963, Vernon’s Texas Civil Statutes). Article 5964 has to do with the removal of 

certain specified judges and other state officers by address. Articles 

5965 through 5966 have to do with removal of various judges by the Supreme 

Court. 

Article 5966a creates the State Judicial Qualifications Commission. 

Article 5967 calls for removal of certain specified officers by the Covernor. Article 5968 provides. that convictions for various crimes shall work 

an immediate removal. Article 5969 provides that an appeal fromanorder 

of removal supercedes the judgment with some exceptions. 

We then come to Article 5970 which provides, in part: 

“All district and county attorneys, county 

judges . . . may be removed from office by the 

judge of the district court for, incompetency, official misconduct or beco~ming intoxicated bydrink- 

%ng ixitoticatirig ~liq~uor; as a beverage;. whether on 

duty or not; . . . .” (emphasis added) 

Article 5971 requires that in every case of removal named in Article 

5970 the cause shall be set forth in writing “and the truth of said cause or 

causes be found by a jury. ” Article 5972 as amended (A,cts 1971, 62nd Leg., 

p. 1110, Ch., 241) defines “incompetency” as used in Article 5970 as follows: 

“By ‘incompetency’ as used herein is meant 

gross ignorance of official duties, or gross carelessness in the discharge of them; or an officer may 

be found to be incompetent when, by reason of some 

serious physical or mental defect, not existing at 

the time of his election, he has become unfit or unable to discharge promptly and properly the duties 

of his office. ” 

pi 318 
The 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 of the office, wilful in its character, of any officer intrusted in any 

manner with the administration of justice, or the 

execution of the law; and includes any wilful or corrupt failure, refusal or neglect of an officer to perform any duty enjoined on him 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 in term time 

or vacation, by first filing a petition in the district 

court of the countywhere the officer resided, by 

a citizen of the State who has resided for six months 

in the 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 out the requisites of the petition; Article 5978 

requires that the case be. submitted under a proper charge to a jury; 

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 of the order for the citation required 

by Article 5979 the district judge may temporarily suspend the person 

from office and appoint for the time being some other person to discharge 

the duties of the 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. 319 
The Honorable Timothy D. Eyssen 

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

with the applicable statutes, he still is the District Attorney of the 30th 

Judicial District of Wichita County, we think. Whether under the statutes 

a cause exists for his removal is a question upon which we do not pass. 

It is our opinion, however, that until Mr. Phagan is removed from office 

in accordance with the statutory procedures, he remains the District A,ttorney. Compare In re Laughlin, 265 S. W. 2d 805 (Tex. 1954); Gordon 

v. State, 43 Tex. 330, 339 (1875). It is 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, the judge of the court in 

which he represents the state may appoint any 

competent attorney to perform the duties of the 

office during the absence or disqualification of 

the attorney for the state. ” 

In subparagraphs b and c it contemplates that another attorney for 

the state, defined as including county attorney, district attorney, or ctiim; 

inal district attorney, might be appointed. 

Article 2.02 provides, in part, that in the absence of the district 

attorney, the county attorney shall represent the state alone. 

Prior to the complete revision of the Code of Criminal Procedure 

in 1965, Article 26 of the code contained essentially the same provision 

which we have quoted above from Article 2.02. Article 31 contained the 

same provisions as are now contained in 2.07. In Attorney General Opinion No. O-2531(1940), it was said: 

p. 320 
The Honorable Limothy D. Eyssen 

The Honorable Robert S. Calvert, page 7 (H-72) 

“Article 26 and Article 31 must be construed 

together, and when so construed, it is clear that 

the Legislature has made it the duty, and it likewise 

the right, of the county attorney to represent the 

State in district court in the absence of the district 

attorney. In the absence of the 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. It is 

only when the district attorney and the county attorney are absent that the court is authorized to appoint 

a district attorney pro tern.. In a Letter Opinion addressed to the Honorable Cullen D. Vance, County 

Attorney, Edna, Texas, on February 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 of the 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 of the interpretation,~ made no change that would indicate a contrary intent, the administrative construction is entitled to great weight. Burroughs v. Lyles, 

181 S. W. 2d 570 (Tex. 1944); Heaton v. Bristol, ,317 S. W. 2d 86 (Tex. 

Civ. App. , Waco, 1958, err. ref). And see Calvert v. Kadane, 427 S. W. 

2d 605 (Tex. 1968). 

It is our interpretation of Articles 2.02 and 2.07, Texas Code of 

Criminal Procedure, that they apply only in the event of a temporary 

disqualification as in one case or absence for a terminable period of 

time. They do not apply to the removal of an officer and if the district 

attorney is removed in accordance with the Constitution and Title 100 of 

the statutes, the vacancy must be filled by the Governor in accordance 

with $12 of Article 4 of the Constitution. 

Therefore, to answer Mr. Eyssen’s questions,, we would state that, 

provided the county attorney was available at all times (a fact question 

which we do not answer), Article 2.02 of the Code of Criminal Procedure 

p. 321 
The Honorable Timothy D. Eyssen 

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

did not authorize the district judges or any one of them 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 of absence or disqualification and not for a term of court oi some other period. 

We answer Mr; Eyssen’s second question that under Article 2.02 

of the Code of Criminal Procedure, if the district attorney is absent or 

disqualified and the county attorney is available to serve, the duties of 

the district attorney devolve automatically upon the county attorney. 

The Comptroller’s question involves construction of Article 327 

of the Revised Civil Statutes: 

“When any district attorney shall fail to 

attend any term of the distrfct court of any 

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 failure his shown 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 11 did certify pursuant to that article.that Mr. 

Phagan “has failed to attend Court and represent the State of Texas in 

various criminal prosecutions now pending in the District Courts of 

Wichita County, Texas. ” Mr. Phagan has responded by a letter denying 

that he had failed to attend any term of the court up to the date thereof, 

June 18. We have heretofore cited that letter. . 

We believe it is up to the 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 a hearing, 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 of the district attorney for the time he has failed to attend but 

not for any other period, unless, of course, he is removed from office. 

p. 322 
The 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 of the district courts. If he is temporarily disqualified or absent and there is a qualified 

County Attorney in the county, then the County Attorney shall serve as District Attorney under A,rticle 

2.02 of the Code of Criminal Procedure. If he is 

permanently removed, then any replacement is to be 

appointed by the Governor. 

If the District Attorney absents himself without 

satisfactory reason, a fact to be’determined ~by the 

Comptroller under due process, then the Comptroller 

shall withhold his pay for the pekiod of time of his absence. 

DAVID M. KENDALL, Chairman 

Opinion Committee 

p. 323