The Attorney General of Texas 

December 4, 1981 

MARK WHITE 

Attorney General 

Supreme Court Building 

P. 0. Box 12546 

Austin, TX. 76711 

5121475-2501 

Telex 9101674.1367 

Telecopier 51214750266 

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Dallas, TX. 75201 

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El Paso, TX. 79905 

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Houston, TX. 77002 

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Lubbock, TX. 79401 

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McAHen, TX. 76501 

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An Equal Opportunity/ 

Affirmative Action Employer 

Opinion No. NW-404 

Re: Appointment of prosecutor 

pro tempore 

Mr. Andy Shuval 

Executive Director 

Texas Prosecutors Coordinating 

Council 

1414 Colorado 

Austin, Texas 78711 

Dear Mr. Shuval: 

You have informed us that House Bill No. 649, passed in the last 

legislative session, contains language that raises questions regarding 

the manner and means 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 10A which provides in part: 

(a) A prosecuting attorney pro tempore shall 

be appointed by the body or person who has the 

authority to appoint the prosecuting attorney in 

the event of a vacancy. 

Acts 1981, 67th Leg., ch. 709, 53, at 2651. 

You ask what legal effect, if any, this statutory language has on 

the prior appointments of a criminal district attorney pro tern who was 

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 is under suspension while appealing 

his disbarment. 

The appointment of a prosecutor pro tern was 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 the county. Article 2.07 provides, in pertinent part: 

(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 perform the duties of his 

office, or in any instance where there is no 

attorney for the state, the judge of the court in 

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Mr. 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 

the attorney for the state. 

Specifically, you inquire: 

(1) Whether the governor may or should 

appoint a prosecutor pro tempore on the effective 

date of House Bill No. 649; 

(2) Whether the judicial appointments of the 

prosecutor pro tern are cancelled when House Bill 

No. 649 becomes effective; 

(3) Whether the judicial appointments of the 

prosecutor pro tern are cancelled when the governor 

appoints another prosecutor pro tempore; 

(4) Whether the judicial appointments of the 

prosecutor pro tern are cancelled when the removal 

action against the current elected district 

attorney is completed? 

Article IV, section 12 of the Texas Constitution and article 328, 

V.T.C.S., grant the governor power to appoint a district attorney when 

a vacancy occurs. Thus, you wish to know 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 the act. 

Section 10 of article 332d, V.T.C.S., provides for the suspension 

of a prosecuting attorney upon disbarment by a trial court and in 

subsection (III) states that "[ulpon disqualification or suspension of a 

prosecuting attorney, the duties of his office shall be performed by a 

prosecuting attorney pro tempore as provided by this Act." 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, the duties of his office shall be performed by a prosecuting 

attorney pro tern as otherwise provided by law." Acts 1977, 65th Leg., 

ch. 345 at 917. (Emphasis added). In our opinion, this provision 

referred to article 2.07 of the Code of Criminal Procedure. Thus, the 

judge's appointment of a prosecutor pro tern was made pursuant to 

section 10(m) of article 332d, as well as article 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 

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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 the present case, the significant event occurred prior 

to the time the governor had the power to appoint a prosecutor pro 

tempore. Thus, his appointment power could not have been brought into 

existence at that time. We do not believe that the governor acquired 

the power to replace the judicially appointed prosecutor pro tern on 

September 1, 1981. A statute is held 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 of House Bill No. 649 does not terminate judicial 

appointments of a prosecutor pro tern made before the effective date of 

the statute. 

You specifically inquire when the judicial appointments of the 

prosecutor pro tern terminate. In our opinion, they will terminate 

when the suspension of the criminal district attorney is lifted, or 

when the disbarment becomes final and the governor exercises his right 

to fill the vacancy. 

A prosecuting attorney is suspended when he is disbarred, 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, no writ). The prosecuting attorney is removed from office 

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 a disbarment 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 the court 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., the prosecutor's office is vacated 

by disbarment only upon final adjudication of disbarment. 

If the highest court to which the disbarment is appealed 

overturns it, the district attorney's suspension from office is 

P. 1373 
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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 the disbarment, 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 tern appointed by the judges may serve until the governor 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 to article 

332d, V.T.C.S., by House Bill No. 649 of the 

Sixty-seventh Legislature. This appointment will 

terminate when the suspension against the district 

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 truly yours, 

MARK WHITE 

Attorney General of Texas 

JOHN W. FAINTER, JR. 

First Assistant Attorney General 

RICHARD E. GRAY III 

Executive Assistant Attorney General 

Prepared by Joe Foy Jr. & 

Susan L. Garrison 

Assistant Attorneys General 

APPROVED: 

OPINION COMMITTEE 

Susan L. Garrison, Chairman 

Joe Foy Jr. 

Rick Gilpin 

Jim Moellinger 

p. 1374