-

**Ic** August 6, 1987

Honorable

Gary A. Goff HockleyCountyAttorney Courthousa Levelland.

Texas 79336 Opinion No. JM-763
Be: Whethera countyattorney who is.appoiuted

to serve as a special prosecutor

for another countymay be paid for his services
Dear Mr. Goff:
You ask whetherau individual who contracts

to serveas a special prosecutor may be paid for--his services under the following circumstances:

A police lieutenant was charged

with tampering with a government

record. HocklayCountyDistrict Attorney Warren Tabor, Jr. was disqualified because

he was a potential

witness in the case. so the services

of a special

prosecutor

was required. Dwaynepruitt.au attorneyin Brownfield, Texas was contacted

concerning

the special

prosecution. Mr. Pruitt has a private law practice,but also serves as a county attorney with felonyprosecution powers for Terry County. He was not elected under the Professional Prosecutor

Act. It was in his capacity

as a privateattorney thatMr. Pruitt **“a8** approached about serving as the special prosecutor

in this case. Subsequently,

the liockley

County Commissioners Court entered into a verbal agreementwith Mr. Pruitt in his capacity as a private lawyer to represent

Eockley County as a specialprosecutor and he was appointed to the position by the districtjudge.
Mr. Pruitt has discharged his duties as s special prosecutor for Hockley County, but a question

has arisenconcerning the applications

of section2.07(b)

of the Code of Criminal Procedure. Does the statute prohibit Bockley County paying

p. 3579Honorable Gary A. Goff - Page 2 (J&763)

Mr. Pruitt for his services performed in his privatecapacity

as contracted?
Prom the factsyou have related we will assume that trialwas in HockleyCounty for an offenseallegedto have occurredin that county.
Your conclusions

that the county attorney of Terry County has authority

to perform the duties of districtattorneyin Terry County, and that the office he holds does not fall within the provisions of the Professional

Prosecutors

Act, are supported by sections

45.323and 46.002of the Gove-nt Code.
Your concern relative to the authority of the Hockley County Commissioners

Court to pay the countyattoruey of Terry County for his services

as a specialprosecutor in HockleyCounty is prompted by the prohibitions appearing in article 2.07 of the Code of Criminal Procedure. Article 2.07 provides:

(a) Wherickeran attorney for the state is disqualified

to act in any case or proceeding, is absent for the countyor district, or is otherwise unable to performthe duties of his office, or in any instancewhere there is no attorney for the state, the judge of the court in which he represents the statemay appointany 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 attorneyfor the state, he is qualified

to perform the dutiesof the office for the periodof absence or disqualification of the attorneyfor the state on filingan oathwith the clerk of the court. He shall receivecompensation in the same amount and manuer as an attorney appointed to representan indigent

person. (d) In this article. 'attorney for the state' means a countyattorney, a district

attorney,

or s criminal

district

attorney. (Emphasis added).

p. 3580Eowrable 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 attorneyfor the state or not au attorneyfor the state. One persoa cannot be in both classes at the same time even if he maintains

a private

practice

duringhis term as countyattorney. Section41.004of the Government Code prohibits

a countyattorney 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);AttorneyGeneralOpinion Mb'-483

(1982). In counties not subject to the Professional Prosecutors Act, a county attorney geuerally

may receive compensation for performingservices, whether for the county for whom he is au officer or for someoueelse,where no duty to perform such services is imposed by law. See Lattixorev. TartautCounty. 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 generallegal obligation to act as attorney

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

that acts as an exception to this generalrule, a county attorneyof oue county acting as attorney pro tern

for anothercounty would not be prohibited from receiving compensation for performing such services. Article2.07 of the Code of Criminal Procedure

acts as such an exeption. Under article2.07, if the appointee is an attorney for the state,

he will not receiveadditional compensation

for serving a special

prosecutor. If on the otherhand, he is not au attorneyfor the state,he may receivecompensation for his service. An "attorney for the state" includes a county attorney. Code Grim. Proc. art. 2.07(d). Mr. Pruitt, the attorneyfor Terry County, is therefore au attorneyfor the statewho is not entitledto additional compensation for serviceas a prosecutor. When the appointed attorneyis su attorney for the state,article 2.07(b) of the Code of CriminalProcedure 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 compensationfor performing those additionalduties. By enacting these conditions,

the legislature

may have intendedto avoid possible violations

of article

XVI, section40 of the Texas Constitution, which providesthat:

Ro person shallhold or exercise at the same time, more than oue civil officeof emolument.
. . . Tex. Const. art. XVI, 940. See Texas Turnpike Authority

v. Shepperd. 279 S.W.2d 302 (Tax. 1955) (provision naminghighway commissioners as uncompensated

ox-officio

directors of toll road authoritydoes 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

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