, 

GERALD C. MANN Aun.vcarv 1'1. -!cr:x.zn 

-sy xxxxx 

Honorable R* E. Bibb 

County Judge 

Maverick County 

Eagle Pass, Texas 

Dear Sir: Opinion No. O-4979 

Re: vvhere a duly elected and 

qualified county attorney 

has been inducted into the 

Armed Fcrces cf' the United 

States and has taken no 

steps to dischar;e the 

duties of his office, what 

can the commissioners' 

court do relative to having the duties cf county 

attorney performed? 

lie acknowledge receipt of your request for an opinicn on the above question, including a letter dated January 

20, last, from Honorable David h. Hume, an attorney of your 

city, who states he is writing same at your request, Under 

the provisions of Article 4399 of the Revised Civil statutes 

of Texas, this department is prohibited from rendering 1e;al 

opinions to county judges, but, in view of the fact that 

your county is without the services of the county attorney 

at the present, we feel it not inappropriate to answer your 

questions. vile understand the facts relative to said matter 

to be as follows: 

Mr. Van Haile iicparland was i~nducted into the Armed 

Forces of the United States in October of last year. At that 

time he was county attorney of your county, was re-elected at 

the November electicn, has duly qualified by taking the oath 

of cffice and making bond, but he has not since returned and 

has taken no steps relative tc discharging his duties. 

In our Opinion No. O-3448, a copy of which is attached hereto, this department held that the office of county 

attorney did not become vacant upon the induction of the 
_’ 

. 

Honorable R. E. Bibb, page 2 O-4979 

incumbent into the Army. We also held that such officer was 

entitled to his salary during the term of his office, or until 

a vacancy was established. 

Article 331, Revised Civil Statutes, provides that 

county attorneys, by consent of the commissioners' court shall 

have power to appoint one or more assistants, and Article 3982 

also deals with the appointment of such assistants, but it is 

specifically provided in Article 3902 that the commissioners' 

court shall not attempt to influence the appointment of any 

person as an assjstant. Mr. McFarland being the present county attorney of your county, the appointment of someone by the 

commissioners' court to serve as county attorney could be 

nothing more than the appointment of' an assistant, which is 

clearly prohibited by the above statute. It is the opinion 

of this department, therefore, that the commissioners' court 

does not have authority to name another to act as county attorney during the time Mr. McFarland is in the Army. 

In this connection we take occasion to say the whole 

situation wculd be greatly clarified if the county attorney 

would, with the approval of the commissioners' court of your 

county, appoint an assistant, as has been done under the same 

circumstances in several counties of this State. 

We direct your attention to Article 334, Revised 

statutes, which reads as fol$ows: 

"The district and county attorneys, upon request, shall give an opinion or advice in writing 

to any county or precinct officer of their district or county, touching their official duties." 

The above quoted statute makes it the duty of your 

district attorney to advise your county and precinct officers 

in writing about a11 matters touching their respective official duties. We feel sure your district attorney will gladly 

and ably perform that duty. 

Article 339, Revised Statutes, reads as follows: 

When it shall come to the knowledge. of any 

district or county attorney that any officer in 

hiss district or county entrusted with the collection or safe keeping of any public Parids is in any 

manner whatsoever neglecting or abusj~n; the trust 

confided in him, or in any way failing to discharge his duties under the law, he shall institute 
Honorable R. E. Bibb, page 3 O-4979 

such proceedings as arc necessary to compel the 

performance of such duties by such officer and to 

preserve and protect the public interests." 

Article 27, Code of Criminal Procedure, is as follows: 

"It shall be the duty of the district or 

county attorney to present by information to the 

court hnving jurisdiction, any officer for neglect 

or failure of any duty enjoined upon such officer, 

when such neglect CL' :failure can be presentsd:by 

information, whenever it snal! come to the knowled,ge of said attorney that there has been a neglect cr failure of duty upon the part of said officer; and he shall bring to the notice of the 

grand jury any act of violation of law or neglect 

of failure of duty upon the part of any officer, 

when such violation, neglect or failure are not 

presented by information, and whenever the same 

may come to his knowledge.' 

The duties imposed by Article 339 pertain to civil 

actions while Article 27 has reference to crimi~nal proceeding 

which both county and district attorneys are required to insttute when warranted by the facts, 

With reference to other duties imposed and authority 

conferred upon hat-h county and district attorneys, you attention is directed to Articles 28, 29, and 30 of the Code of 

Criminal Procedure, which Articles read respectively as follows : 

Article 28, "Upon complaint being made before a district or county attorney that sn offense 

has been committed in his district or county, he 

shall reduce the complaint to writing and cause 

the same to be signed and sworn to by the complainant, 

attorney." 

and it shall be duly attested by said 

Article 29, "If the offense be a misdemeancr, 

the attorney shall forthwith prepare an information based upon such complaint and file the same 

in the cour~t baaing jurisdiction. If the offense 

be a felony, he shall forthwith f;ile the complaint 

with a magistrate of the county. 
. 

Honorable R. E. Bibb, vge 4 O-4.979 

Article 30. "For the purp ose mentioned in 

the two preceding articles, district and county 

attorneys are authorized to administer oaths." 

We also call your ,attention to Article 31, Code of 

Criminal Procedure, which reads as follows: 

"'Whenever any district or conrmty attorney 

fails to attend any term of the district, county 

of justice's court, the judge of said court or 

such justice may appoint some ccmpetent attorney 

to perform the duties of such district or county 

attorney,who shall be allowed the same compensation for his services as is allowed the district 

attorney or county attorney. Said appointment 

shall not extend beyond the term cf the court at 

which it is made, and shall be vacated upon thf: 

appearance of the district or county attorney. 

Under said Article 31, a county attorney pro' tern may 

,not be appointed when.county or justice court is in vacatn. 

Moore v. State, 119 S M(. 858. 

. 

A county attorney pro tern cannot be ap:.-tinted in term 

time unless both the county and district Pttorney are absent. 

This appears to be the eonstructicn placed upon this Article 

by the courts. Daniels v. State, 77 S. liJ. 215'; Butler v. 

State, 299 S' W. 420. As a matter of precaution, the order 

of the court appointing a ccunty attorney pro tom should show 

that neither the county attorney nor district attorney was 

present. Such as appcintment may be made to represent the 

State in all cases and matters coming before the court at the 

term at which the appointment is made or in a particular case 

only. The appointment cannot extend beyond the term, (State 

v. Manlove, 33 Tex. 798) but if a county attorney pro tern is 

appointed at one term cl? court to represent the St::Le ???-a 

case, and qualif!~ed i~nder cud;‘: aspcintme?t, he may prosecute 

the case7 at a subscquent~ t;r~ 8;~j.tho!~t rc-appointment. Narnoch 

V. StaLc, 7 Cr. 1~. 269. ,ihcn i; county attorney pro,tern is appointed, it appears that he must take the constitu,t?%al cath 

of office as county attorney pro tern. Marnoch v. State, supra. 

Such an attorney pro tern has all the powers and duties of the 

regular pr.osecuting attorney. State v. Lackey, 35 Tex. 357. 

They are evidently authorized to prepare and take acknowledgments to complaints, prepare and file informations. Article 

30, c: c. P. 
, 

Honorable R. E. Bibb, page 5 

Of course, no person should be appointed county attorney pro tern in a particular case where he is for my reason 

disqualified to represent the State. 

It will be noted that said Article 31 also applies 

to justice courts, and what has heretofore been said with 

reference to appointment of a county attorney pro tern by a 

county judge applies to a justice of the peace. We think it 

is also applicable to any judge who sits as an examining 

court o Article8 246, et seq, c. c. UP, 

A complaint may be acknowledged before a justice 

of the peace or any other officer authorized by law to take 

or administer oaths. Articles 8@ and 883, C, Co P, 

The statute (Article 28, C, C. P.) provides that 

upon a complaint being,made before a district or county attornex that an offense has been committed in his districtor 

county, he shall reduce the complaint ti writing and cause 

the same to be signed and sworn to by the complainant, and 

it shall be duly attested by him and the succeeding Article 

requires him, if the offense be a misdemeanor, to prepare an 

information based thereon and file the same in the court having jurisdiction and, if a felony, he shall forthwith file 

the ccmplaint with a magistrate of the county. In our opinicn, Article 28 is not exclusive as to who shall preoare complaints, and that where the county attorney is absent, the 

complaint may be prepared by a justice of the peace or any 

other officer or person, but, of course, the complaint must 

be sworn to by the complainant before some officer authorized 

to administer oaths, If the complaint charges a misdemeanor 

and the defendant is to be tried in the county court then an 

information based upon said complaint must be filed in that 

court. Where the county attorney is absent, the district attorney is authorized to prepare and file the information in 

the county court, Cody v, State, 47 S,W, (2d) 297- In this 

connection, we call your attention to the fact that when a 

complaint is filed in the county court the information based 

thereon may be filed at any time before,the offense is barred 

by limitation, Roberson v. ;jtate, 17 Tex. Ct, App., 317, 319; 

Gentry v0 State, 117 S. U. 696; Day v. State, 74 S, W, 6-19, 

700. Therefore, the district attorney or the county attorney 

ro tern will have an opportunity to file the information beF- ore the case is called for trial. 
Honorahlt R. E. Bibb, page 6 O-4979 

following 

In Texas Jurisprudence, Volume 11, page 575, the 

rule is stated: 

"The commissioners' court has power to emattorneys to assist the regularly constitutea officers of the county in the prosecution of 

its claims and suits, and to pay for such services out of the county funds. It seems, however, 

that the commissioners' court does not have the 

power to deprive, the county attorney of his 

rightful authority in this regard. Ths employment cf counsel is restricted to special cases 

where the'semrices of an attorney are required; 

nor has the court power to make an crder which 

will warrant the payment of county money to an 

nttorne 

formed. 

a for services neither required nor per- 

(Adams v. beagle??, 2.5'0 S. ;W. 413; Gibson 

v. ~PV~S, 236 S.W. 202; Terre11 v. Greene, 31 S. W. 

631; Grooms v. Atascosn County, (c)iv. App.) 32 

S.W. 188). 

It is our opinion that under the facts stated by 

you and the above rules of law, the commissioners' court would 

not have the authority to engage ccunsel to perform the duties 

of county attorney of your county, but that it would have authority to engage counsel tcm assist the ccunty attorney in the 

performance of the duties referred to in Article 339, provided 

it did not attempt to deprive the county attorney of his rightful authority in this regard. It would also have authority 

to engage counsel to advise said court, as it has been held 

that Article 334. was intended to impose a duty upon the county and district attorneys, and not as a restriction upon the 

commissioners' court in the employment of attorneys to advise 

and render services to the county in important matters coming 

before it for its consideration, Gibson, et al., v. Davis, 

et al., 236 S.W. 202. Such coumsel ,:tould not be required to 

take the oath of office. 

Trusting that this satisfactorily answers your inquiry, we we 

Very truly yours 

JWB:db--PAM 

ATTORNEY GENERAL OF TEXAS 

APPROVED FEB 24'1943 

GROVER SELLERS BY Jas* ;v. Bassett 

FIRST ASSISTANT Assistant 

ATTORNEY GENERAL 

APPROVED OPINION COMMITTEE 

BY BWB, CHAIRMAN