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 you to return this file with 

your r0Dlj.” 

%I-, B. L, Teoigleton states In his letters of Septmber 14th and Sapte~nber 20th, 1943, thst ha has bean appointed bg 

the District Judge as authorized by Article 31 of the Code of 

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 and htving bezn aId% ‘known that the regularly 

;F;teftD;$rlot .itborney will be ab%%nt during 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, 

a ragularly licensed attorney of this District, be 

and he is hereby aspointed S~ofsl District Att:>nieg 

for this term of this Court, upon his tsking the 

oath as prescribed by law. 

of Tex-:s .v 

In co~1plisnoe with the above mentioned order I&-. 

T%inal%ton after 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 32nd Judioisl Dietrict of Texls, and ~1.1.1 to the best of my ability 

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 any aoney 

or valuabls thing a% a reward for being appointed 
to this office, 60 help ae God. 

“B. L. Templeton “- 

uSv;~~n to 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 any District or County Attorney 

rails to attend any term of the District, County 

or Justice Court, the Ju:fie or said Court or such 

Justice nay aspint some competent 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 County Attorney. 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, a3 rOliCW3: 

"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, when cnlle 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, pay or emolunents of hi8 of- 
Honorabl,e Geo. 8. dheppard, p-~ge 4 

flus to any other person, who, ui?dar the 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 OF assignment eb311 be 

sufficient authority for the Comptroller OP Pub110 Aoaounts of the Stste of Texas to Fame State 

rarrauta and to pay such person 80 holding such 

oftioer’o position during hla abeenoe in military aervioe out of appropriations mU% by the 

Legislature for such offioe. 

“Se,. 3. The filing 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 a resi@Btion from his office by 

the p6S5On entering the ailitary sorvlce of the 

State. or Elation 

;i* 

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

‘tie haye carefully considered ;Irticlea 323 snd 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 golur inquiry. 

The Su?re,m Court of thLs state in the ease of 

Fowler v. s, 3 S, W. 255 constmfng Adlcle 39 of the 

Code63Xtrfnal Prooadure, ( now Arti0l.e 31, Vcrnoa~s Anuotated Code of Criminal Procedure) mid; 

“Artiole 39 of 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 ~0~10 coqmtent attOxa6y to perform 

their duties during such tern,, S5oh appointee represents the state in all matters in which it my be 

interested that my arise during the tern.. ‘The state 

ie intsrea.ted In a quo werranto proceeding If& the 

pmsent, And its representative la namd in the statute 

as the propur person t0 fil% the informtion; and tbia 
-Honcrirbls Gee, li. Sheppard, page S 

infomatlon was tllcd during the term of the court 

at which Cheffee was appointed, and dur13g the abaenoe 

of the district and ooimtg attorney. The abova article does not require the a?polntee to give bond, as 

does artlole 244, Rev. St,, which provides for an appointaeat by th8 qov_nIYIor when the office b8com?s vuoazt, 

&mover, Chaffes, who was made district attorney pro 

tea, in tha absence of tha regular attorney oi the stats, 

Wa8 reeogalzed a8 such by the oour t, and as the pro par 

Off! c&c to file tIMa LlfsrTk~tion, and he 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, we respectfully 

anmar the above stated quaation in the negnt ive. 

The file which was attached to your inqairg is returned herewith. 

Xsslstsnt 

bYYlEP 

Enol,