- 

IcAugust 6, 1987 

Honorable Gary A. Goff 

Hockley County Attorney 

Courthousa 

Levelland. Texas 79336 

Opinion No. JM-763 

Be: Whether a county attorney who 

is.appoiuted to serve as a special 

prosecutor for another county may 

be paid for his services 

Dear Mr. Goff: 

You ask whether au individual who contracts to serve as a special 

prosecutor may be paid for--his services under the following 

circumstances: 

A police lieutenant was charged with tampering 

with a government record. Hocklay County District 

Attorney Warren Tabor, Jr. was disqualified 

because he was a potential witness in the case. so 

the services of a special prosecutor was required. 

Dwayne pruitt. au attorney in Brownfield, Texas 

was contacted concerning the special prosecution. 

Mr. Pruitt has a private law practice, but also 

serves as a county attorney with felony prosecution powers for Terry County. He was not elected 

under the Professional Prosecutor Act. It was in 

his capacity as a private attorney that Mr. Pruitt 

“a8 approached about serving as the special 

prosecutor in this case. 

Subsequently, the liockley County Commissioners 

Court entered into a verbal agreement with Mr. 

Pruitt in his capacity as a private lawyer to 

represent Eockley County as a special prosecutor 

and he was appointed to the position by the 

district judge. 

Mr. Pruitt has discharged his duties as s 

special prosecutor for Hockley County, but a 

question has arisen concerning the applications of 

section 2.07(b) of the Code of Criminal Procedure. 

Does the statute prohibit Bockley County paying 

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Honorable Gary A. Goff - Page 2 (J&763) 

Mr. Pruitt for his services performed in his 

private capacity as contracted? 

Prom the facts you have related we will assume that trial was in 

Hockley County for an offense alleged to have occurred in that county. 

Your conclusions that the county attorney of Terry County has 

authority to perform the duties of district attorney in Terry County, 

and that the office he holds does not fall within the provisions of 

the Professional Prosecutors Act, are supported by sections 45.323 and 

46.002 of the Gove-nt Code. 

Your concern relative to the authority of the Hockley County 

Commissioners Court to pay the county attoruey of Terry County for his 

services as a special prosecutor in Hockley County is prompted by the 

prohibitions appearing in article 2.07 of the Code of Criminal 

Procedure. Article 2.07 provides: 

(a) Whericker an attorney for the state is 

disqualified to act in any case or proceeding, is 

absent for 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 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. 

(b) If the appointed attorney is also an 

attorney for the state, the duties of the 

appointed office are additional duties of his 

present office, and he is not entitled to 

additional compensation. 

(c) If the appointed attorney is not an 

attorney for the state, he is qualified to perform 

the duties of the office for the period of absence 

or disqualification of the attorney for the state 

on filing an oath with the clerk of the court. He 

shall receive compensation in the same amount and 

manuer as an attorney appointed to represent an 

indigent person. 

(d) In this article. 'attorney for the state' 

means a county attorney, a district attorney, or s 

criminal district attorney. (Emphasis added). 

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Eowrable Gary A. Goff - Page 3 (JM-763) 

Sections (b) and (c) of article 2.07 of the Code of Criminal 

Procedure establish two distinct classes from which the appointed 

attorney may be drawn. It contemplates that any one individual will 

be either an attorney for the state or not au attorney for the state. 

One persoa cannot be in both classes at the same time even if he 

maintains a private practice during his term as county attorney. 

Section 41.004 of the Government Code prohibits a county attorney 

from receiving compensation to prosecute any case that he is required 

by law to prosecute. See Hill Farm, Inc. v. Hill County, 425 S.W.2d 

44 (Tex. Civ. App. - Waco 1968). aff'd, 436 S.W.2d 320 (Tex. 1969); 

Jonas v. Veltmauu, 171 S.W. 287 (Tex. Civ. App. - San Antonio 1914, 

writ ref'd); Attorney General Opinion Mb'-483 (1982). In counties not 

subject to the Professional Prosecutors Act, a county attorney 

geuerally may receive compensation for performing services, whether 

for the county for whom he is au officer or for someoue else, where no 

duty to perform such services is imposed by law. See Lattixore v. 

Tartaut County. 124 S.W. 205 (Tex. Civ. App. 1909. nowrit); Browning 

v. Tarrant County. 111 S.W. 748 (Tex. Civ. App. 1908. no writ). The 

attoruey of one county is under no general legal obligation to act as 

attorney pro tom for mother county; therefore, absent some specific 

prohibition that acts as an exception to this general rule, a county 

attorney of oue county acting as attorney pro tern for another county 

would not be prohibited from receiving compensation for performing 

such services. Article 2.07 of the Code of Criminal Procedure acts as 

such an exeption. Under article 2.07, if the appointee is an attorney 

for the state, he will not receive additional compensation for serving 

a special prosecutor. If on the other hand, he is not au attorney for 

the state, he may receive compensation for his service. An "attorney 

for the state" includes a county attorney. Code Grim. Proc. art. 

2.07(d). Mr. Pruitt, the attorney for Terry County, is therefore au 

attorney for the state who is not entitled to additional compensation 

for service as a prosecutor. 

When the appointed attorney is su attorney for the state, article 

2.07(b) of the Code of Criminal Procedure sets out two legal cousequences: (1) the duties of the appointed office are additional 

duties of his present office; (2) he is not entitled to additional 

compensation for performing those additional duties. By enacting 

these conditions, the legislature may have intended to avoid possible 

violations of article XVI, section 40 of the Texas Constitution, which 

provides that: 

Ro person shall hold or exercise at the same time, 

more than oue civil office of emolument. . . . 

Tex. Const. art. XVI, 940. See Texas Turnpike Authority v. Shepperd. 

279 S.W.2d 302 (Tax. 1955) (provision naming highway commissioners as 

uncompensated ox-officio directors of toll road authority does not 

p. 3581 
, 

Eonorable Gary A. Goff - Page 4 (JM-763) 

violate article XVI, section 40 of the Texas Constitution). The 

prohibition on compensation found in article 2.07(b) may have been 

vieved by the legislature as absolutely essential to enable au 

attorney for the state to replace another attorney for the state under 

article 2.07(a). Article 2.07(b) of the Code of Criminal Procedure 

prohibits Eockley County from paying the county attorney of Terry 

County for his service as a special prosecutor pursuant to article 

2.07(a) of the Code of Criminal Procedure. 

SUMMARY 

Article 2.07(b) of the Code of Criminal Procedure 

prohibits Eockley County from paying the county 

attorney of Terry County for his service as a spectal 

prosecutor pursuant to article 2.07(a) of the Code of 

Criminal Procedure. 

JIM WATTOX 

Attorney General of Texas 

MARY XEUEF. 

Executive Assistant Attorney General 

JUDGE ZOLLIE STEAXLEY 

Special Assistant Attorney General 

RICX GILPIN 

Chairmen, Opinion Committee 

Prepared by Susan L. Garrison 

Aesistaut Attorney General 

p. 3582