# TheAttorney General ofTexas

December 4, 1981
MARK WHITE Attorney General

Supreme Court Building P.0. Box 12546 Austin, TX. 76711 5121475-2501 Telex 9101674.1367 Telecopier 51214750266

1607 Main St.,Suite 1400 Dallas, TX. 75201 21417428944

4624 Alberta Ave., Suite 160 ElPaso, TX. 79905 9151533.3464

1220 Dallas Ave.. Suite 202 Houston, TX. 77002 713/6500666

806 Broadway, Suite 312 Lubbock, TX. 79401 6061747-5236

4309 N.Tenth, Suite B McAHen, TX. 76501 5121662.4547

200 Main Plaza, Suite 400 SanAntonio, TX. 76205 512/225-4191

An Equal Opportunity/ Affirmative Action Employer Opinion No. NW-404

Re: Appointment ofprosecutor pro tempore Mr.Andy Shuval Executive Director Texas Prosecutors Coordinating Council 1414Colorado Austin, Texas 78711

DearMr. Shuval:

You have informed us that House Bill No. 649, passed in the last legislative session, contains language that raises questions regarding themanner andmeans by which a temporary prosecutor is appointed in certain situations where the elected prosecutor is unable to serve. Section 3 of House Bill No. 649 amends article 332d. V.T.C.S.. by adding section 10Awhich provides inpart:

(a) Aprosecuting attorney pro tempore shall be appointed by the body or person who has the authority to appoint the prosecuting attorney in the event ofavacancy.

Acts 1981, 67thLeg., ch. 709, 53,at 2651.

You askwhat legal effect, ifany, this statutory language has on theprior appointments ofacriminal district attorney pro ternwhowas appointed on a continuing basis by the judges of that county in accordance with article 2.07, Texas Code of Criminal Procedure. The elected criminal district attorney isunder suspension while appealing his disbarment.

The appointment of a prosecutor pro ternwas initially made in 1980. The same person was reappointed on August 24, 1981, by order signed by the judges of all the county courts of law and district courts for thecounty. Article 2.07provides, inpertinent part:

(a) Whenever an attorney for the state is disqualified to act inany 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 for the state, the judge of the court in

p. 1371Mr.Andy Shuval -Page 2 **(Mw-404)**

which he represents the state may appoint any competent attorney to perform the duties of the office during the absence or disqualification of theattorney for the state.
Specifically, you inquire:

(1) Whether the governor may or should appoint aprosecutor pro tempore on the effective date ofHouse Bill No. 649;
(2) Whether the judicial appointments of the prosecutor pro ternare cancelled when House Bill No. 649becomes effective;
(3) Whether the judicial appointments of the prosecutor pro ternare cancelled when thegovernor appoints another prosecutor pro tempore;
(4) Whether the judicial appointments of the prosecutor pro ternare cancelled when the removal action against the current elected district attorney iscompleted?
Article IV, section 12of theTexas Constitution and article 328, V.T.C.S., grant thegovernor power toappoint adistrict attorney when
avacancy occurs. Thus, you wish toknow whether House Bill No. 649 authorized the governor to appoint another prosecutor pro tempore to replace the individual serving on September 1, 1981, the effective date of theact.
Section 10ofarticle 332d, V.T.C.S., provides forthe suspension of a prosecuting attorney upon disbarment by a trial court and in subsection **(III)**states **that** "[ulpon disqualification or suspension ofa prosecuting attorney, **the** duties ofhis office shallbeperformed by a prosecuting attorney pro tempore asprovided by thisAct." Acts 1981, 67th Leg., ch. 709, §2, at 2651. The suspension of the elected prosecutor does not create a vacancy in his office; it prevents him from performing its duties pending final resolution of the disbarment action.
Prior to September 1, 1981, section 10(m) of article 332d, V.T.C.S., stated that "[ulpon disqualification of a prosecuting attorney, theduties ofhis office shallbeperformed by aprosecuting attorney pro ternas otherwise provided by law." Acts 1977, 65thLeg., ch. 345 at 917. (Emphasis added). In our opinion, this provision referred toarticle 2.07 of theCode ofCriminal Procedure. Thus, the judge's appointment of a prosecutor pro ternwas made pursuant to section 10(m)ofarticle 332d, aswell asarticle 2.07.

The amendment to article 332d, V.T.C.S., which became effective
on September 1, 1981 protides that the governor shall appoint a

p. 1372. . Mr.Andy Shuval -Page 3 (Mw-404)

prosecutor v-0 disqualified or tempore when the regular prosecutor has been suspended. Sets. 10(m), lOA( see also Tex. Const. art. IV, §12;V.T.C.S. art. 328. The governor's power of appointment under article 332d comes into effect only upon the occurrence of a specific event -- the disqualification or suspension of the regular prosecutor. In thepresent case, the significant event occurred prior to the time the governor had the power to appoint a prosecutor pro tempore. Thus,his appointment power couldnothave beenbrought into existence at that time. We donot believe that thegovernor acquired the power to replace the judicially appointed prosecutor pro ternon September 1, 1981. A statute isheld to operate prospectively only, unless it clearly states a legislative intent to operate retrospectively. See Freeman v. Terrell, 284 S.W. 946 (Tex. 1926). Thus, the enactment ofHouse Bill No. 649 does not terminate judicial appointments ofaprosecutor pro ternmade before theeffective date of the statute.

You specifically inquire when the judicial appointments of the prosecutor pro ternterminate. In our opinion, they will terminate when the suspension of the criminal district attorney is lifted, or when thedisbarment becomes final and thegovernor exercises his right to fill thevacancy.

Aprosecuting attorney issuspended when he isdisbarred, whether following trial or upon agreement, and a prosecutor pro tempore may then be appointed. V.T.C.S. art. 332d, 810(d),(m). See Green V. County Attorney of Anderson County, 592 S.W.Zd 69 (Tax.-". App. - Tyler 1979,nowrit). Theprosecuting attorney isremoved fromoffice upon final adjudication or conviction for any cause of action which
was the basis of his suspension. V.T.C.S. art. 332d, 510(e). A "final conviction" is a judgment of conviction from which defendant has exhausted his right to appeal. Adams V. State, 125 S.W.2d 583 (Tex. Crim. App. 1939); Allen V. Texas Department of Public Safety, 411 S.W.2d 644 (Tex. Civ. App. - Texarkana 1966, no writ). In our opinion, "final adjudication" of adisbarment action also occurs when the defendant has exhausted his right to appeal. Any other construction would render meaningless the provision for suspension of
a prosecutor following disbarment rather than outright removal. But cf. Oliphint V. Christy, 299 S.W.2d 933 (Tex. 1957) ("final adjudication" in article 7.14, section 23 of the Election Code means determination by judge on competent evidence). Although thecourt in Phagan v. State, 510 S.W.Zd 655 (Tex. Civ. App. - Fort Worth 1974, writ ref'd n.r.e.), held that a district attorney vacated his office upon the trial court's judgment of disbarment, that determination predated the enactment of article 332d. Acts 1977, 65th Leg., ch. 345, at 917. Procedures governing removal proceedings are established by statute. See Sullivan V. Berliner, 568 S.W.2d 844 (Tex. 1978).

- Thus, under article 332d,V.T.C.S., theprosecutor's office isvacated bydisbarment only upon final adjudication ofdisbarment.

If the highest court to which the disbarment is appealed overturns it, the district attorney's suspension from office is

P. 1373. .
Mr.Andy Shuval -Page 4 (MW-404)

lifted. V.T.C.S. art. 332d, 510(m), Acts 1981, 67th Leg., ch. 709, 42, at 2651. If the court upholds thedisbarment, he is removed from office. The governor is then entitled to appoint a replacement for the elected district attorney, to fill the vacancy created by his removal. Tex. Const. art. IV, 512;V.T.C.S. art. 328. The governor's appointment will continue only until the first general election thereafter. T.3. Const. art. IV, 912. If the governor does not exercise his power to appoint a successor immediately upon the district attorney's removal, the judges of the district court retain authority under article 2.07 of the Code of Criminal Procedure to appoint a prosecutor pro tern"in any instance where there is no attorney for the state." Under the facts presented, the prosecutor pro ternappointed by the judges may serveuntil thegovernor exercises his right to fill a vacancy created upon a final adjudication of disbarment.

SUMMARY

The appointment of a prosecutor pro tern pursuant to article 2.07 of the Code of Criminal Procedure did not terminate as of September 1, 1981, the effective date of amendments toarticle 332d, V.T.C.S., by House Bill No. 649 of the Sixty-seventh Legislature. This appointment will terminate when the suspension against thedistrict attorney is lifted, or in case the district attorney is permanently removed from office, when the governor exercises his right to fill the vacancy thereby created.
Very trulyyours,

MARK WHITE Attorney General ofTexas

JOHNW. FAINTER, JR. FirstAssistant Attorney General

RICHARD E.GRAY III Executive Assistant Attorney General
Prepared byJoe FoyJr. & Susan L.Garrison Assistant Attorneys General

APPROVED: OPINION COMMITTEE

SusanL.Garrison, Chairman Joe FoyJr. Rick Gilpin JimMoellinger

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