## seOFFICZ OF THE ATTORNEY GE:NERAL OF TEXAS AU5TlN

IIonorabla George Fi.Sheppard Coqtrollsr of Publia ;iocou.nt.8 Austin, Texas
Dear air:

Article 3882, otatad Civil

stated qclestion rezds

“I will thank youto return this file with **your** r0Dlj.”
%I-,B. L, Teoigleton states In his letters of Septmber 14th andSapte~nber 20th, 1943, thst ha has bean appointed bg the District Judge as authorized by Article 31 of the Codeof Criainal Procedure.Honorable Cso. B. Shepprd, page 2 86 1

_

The order of the District Judge a>poieting Xkxr. Templeton reads aa follows:

“33 IT ~?;‘~~X

’SI~:IR%D That upon t&s oonvoning of the regular Se$%aber tsrs of this Colurt, it appearing andhtving bezn aId% ‘knownthat the regularly ;F;teftD;$rlot .itborney will be ab%%ntduring thti

therefore, the duty of this Court to a;lpoii*t a S~eoial District .;ttorney t3 perform all ti;e duties of the regularly elected Xstrict .-.ttorneg during his absence.

“It ia, therefore, ordered that B. L. Te.mplBton, aragularly licensed attorney of this District, be and he is hereby aspointed S~ofsl District Att:>nieg for this term of this Court, uponhis tsking the oath as prescribed by law.

of Tex-:s.v
In co~1plisnoe with the above mentioned order I&-. T%inal%tonafter his appointment by the District Judge took tha following oath:

“I, B. L. Templeton, do solemnly swear thAt I will faithfully exeaute the duties of the office OS Spsoial Distri,ct attornsy of the 32ndJudioisl Dietrict of Texls, and~1.1.1to the best of myability prenarva, protaot and defend the Constitution and law%of the United States and of this Stat%; and I furthermore aolemnlp swear that I have not direotly nor indirectly paid or offered or promised to pay, contributed nor promised to contribute anyaoney or valuabls thing a%a reward for being appointedto this office, 60 help ae God.

“B. L. Templeton

“- uSv;~~nto and subscribed before me, at Sweatwater, Texas, this the f3th day of Septe.*ber, A. De 1945. %?



# ---F tle Robertson

“Cler -EfYZiZ~~~XGurt of Nolan County, TeraJ.”

atiols 31, Vernon's Lnaotsted c0a-3 0r crhinal Procedtare, provides:
Whenever anyDistrict or County Attorney

rails to attend anyterm of the District, County or Justice Court, the Ju:fie or said Court or such Justice nay aspint somecompetent attornay to perform the duties of such District or County Attorney, **who** shall be allowed the saae compenastion for his services as ia allowed the District ;Ittornsy or CountyAttorney. Said a;point :ient shall not extaod beyond the term of the Court, at which it Is made, and shall be vacated upon the apgearance of the Distriat or County Xttorney.”
House Bill NO. 717, Acts OI tk 48th Legislature, aegul3.r &ssiOn, 1843, r%d.ds, in plrt, a3rOliCW3:

"Saction 1 T&t any person holding a State
or District ofhice in the Stste of Texas, whether as a meabeer of the executive cial departments, whencnlle d leglslitise or judiinto the military service of either the State or Uational Ooverrxnents, is hereby authorized to file with the Comptroller or Pub110 AoQounts or the St-lta, a statement OF certificdtc in writ&, to the effect that he waives the paynent of his salsry or pay or the emokaenta of hia said office during the neriod of his military service sod authorlting the seymdnt 0r such salary, payor emolunents of hi8 of-Honorabl,e Geo. 8. dheppard, p-~ge4

flus to any other person, who, ui?darthe provl- ~~02s **of** any lsw of this **State** is appointed or elaoted to temporarily fill auoh 0lVil **office** during the absence of such officer, elibh **Wailer** or agsignaent to t%rtinat% im’ediately **U~OU** th6 release op discharge of said officer lrora such 5liiitery service.

“SBO. 2. Such waiver OFassignment eb311 be sufficient authority for **the** Comptroller OPPub110Aoaounts of the Stste of Texas to Fame State rarrauta andto pay such person 80holding such oftioer’o position during hla abeenoe in military aervioe out of appropriations mU%by the Legislature for such offioe.

“Se,. 3. Thefiling with tie Comptroller oP Publio nocount% of the State of Tex,ss of soch waiver or assignneat provided for in this Act shall never bs oonstmed by x~y Court of this Stat+ to be aresi@Btion from his office by the p6S5On entering the ailitary sorvlce of the State. or Elation;i*

l,,Governs%nts OSthat hia office is vaoant y reason thereof.”

‘tiehaye carefully considered ;Irticlea 323snd 38S2, ?ernon*s Annotated Civil 3t:ltut*s, in coniieotion with your r%- quest and it is our opinion that these articks are riot applioable to the qu%stion presented in golurinquiry.

TheSu?re,m Court of thLs state in the ease of Fowler v. s, 3 S, W. 255 constmfng Adlcle 39 of the Code63Xtrfnal Prooadure, (nowArti0l.e 31, Vcrnoa~s **Anuota** ted Code of Criminal Procedure) mid;

“Artiole 39of the Code of Crizlfnal Trocedure authorizes the Distriot Judge, wheuever tha District and County Attorney fail to attend any term of the Court, to appoint ~0~10coqmtent **attOxa6y** to perform their duties during such tern,, S5ohappointee represents the state in all **matters** in which it my be interested that my arise during the tern.. ‘Thestate ie intsrea.ted In a quowerranto proceeding If& the pmsent, Andits representative la namd in the statute as the propur person t0 fil% the informtion; andtbia-Honcrirbls Gee, li. Sheppard, page S

infomatlon was tllcd during the term of the court at which Cheffee wasappointed, anddur13g the abaenoe of the district and ooimtg attorney. Theabova article does not require the a?polntee to give bond, as does artlole 244, Rev. St,, which provides for anappointaeat by **th8 qov_nIYIor**  **when the**  **office b8com?s**  **vuoazt,** &mover, Chaffes, whowas madedistrict attorney pro tea, in tha absence of tha regular attorney oi the **stats, Wa8**  reeogalzed a8 such by the oourt, and as the propar Off! c&cto file tIMa LlfsrTk~tion, andhe WC36 st least e deel’fecto distriot attormy, whose authority cmld not be attackad in this o~llatersl roamer.”
In **vi3w** of the foregoing authorities, werespectfully anmar the above stated quaation in the negntive.

Thefile which was attached to your inqairg is returned herewith.

Xsslstsnt bYYlEP Enol,