,

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: vvhereaduly elected and qualified county attorney has been inducted into the Armed Fcrces cf'theUnited States andhas taken no steps to dischar;e the duties ofhis office, what
can the commissioners' court do relative tohaving the duties cf county attorney performed?

lieacknowledge receipt ofyour request for an opinicn on the above question, including a letter dated January 20, last, from Honorable David h. Hume, an attorney ofyour city, who states he iswriting same atyour request, Under the provisions ofArticle 4399 of theRevised Civil statutes of Texas, this department isprohibited from rendering 1e;al opinions to county judges, but, inview of the fact that your county iswithout the services of the county attorney at the present, we feel itnot inappropriate to answer your questions. vile

understand the facts relative to saidmatter to be as follows:

Mr. Van Haile iicparlandwas i~nductedinto theArmed Forces of the United States in October of last year. At that time he was county attorney ofyour 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 tcdischarging his duties.

In our Opinion No. O-3448, a copy ofwhich is attached hereto, this department held that the office of county attorney didnot become vacant upon the induction of the_’

.

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

incumbent into the Army. We alsoheld that such officer was entitled to his salary during the term ofhis office, oruntil
avacancy was established.

Article 331, Revised Civil Statutes, provides that county attorneys, by consent of the commissioners' court shall have power to appoint one ormore assistants, andArticle 3982 also deals with the appointment of such assistants, but it is specifically provided inArticle 3902 that the commissioners' court shall not attempt to influence the appointment of any person as an assjstant. Mr. McFarland being thepresent county attorney ofyour 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 countyattorney during the time Mr. McFarland is inthe Army.

In this connection we take occasion to say thewhole situation wculd be greatly clarified if the county attorney would, with the approval of the commissioners' court ofyour county, appoint an assistant, ashas been done under the same circumstances in several counties of this State.

We direct your attention toArticle 334, Revised statutes, which reads as fol$ows:

"The district and county attorneys, upon request, shall give an opinion or advice inwriting to any county orprecinct officer of their district or county, touching their official duties."

The above quoted statute makes it the duty ofyour district attorney to advise your county andprecinct officers inwriting about a11 matters touching their respective official duties. We feel sureyour district attorney will gladly and ablyperform 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 hissdistrict or county entrusted with the collection or safe keeping of anypublic Paridsis in any manner whatsoever neglecting or abusj~n;thetrust confided inhim, or in anyway failing to discharge his duties under the law, he shall instituteHonorable R. E. Bibb, page 3 O-4979

such proceedings as arcnecessary to compel the performance of such duties by such officer and to preserve andprotect thepublic 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 forneglect
or failure of anyduty enjoined upon such officer, when such neglect CL':failure can be presentsd:by information, whenever it snal! come to theknowled,geof said attorney that there has been aneglect cr failure of duty upon the part of said officer; andhe shall bring to thenotice of the grand jury any act ofviolation of law or neglect of failure of duty upon thepart of any officer, when suchviolation, neglect or failure arenot presented by information, and whenever the same may come tohis knowledge.'

The duties imposed by Article 339 pertain to civil actionswhile Article 27has reference to crimi~nalproceeding 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-hcounty anddistrict attorneys, you attention isdirected 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 inhis district or county, he shall reduce the complaint towriting and cause the same to be signed and sworn toby the complainant, attorney."and it shall be duly attested by said

Article 29, "If the offense be amisdemeancr, the attorney shall forthwith prepare an information based upon such complaint and file the same in the cour~tbaaing jurisdiction. If the offense be a felony, he shall forthwith f;ilethe complaint with amagistrate of the county..

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

Article 30. "For the purposementioned in thetwo preceding articles, district and county attorneys are authorized to administer oaths."

We also call your ,attentiontoArticle 31, Code of Criminal Procedure, which reads as follows:

"'Wheneverany district or conrmtyattorney 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 toperform the duties of such district or county attorney,who shall be allowed the same compensation forhis services as is allowed the district attorney or county attorney. Said appointment shall not extend beyond the term cf the court at which it ismade, and shall be vacated upon thf: appearance of the district or county attorney.

Under said Article 31, acounty attorney pro' ternmay ,notbe appointed when.county or justice court is invacatn. Moore v. State, 119 S M(. 858.

. A county attorney pro terncannot be ap:.-tinted in term timeunless both the county anddistrict Pttorney are absent. This appears tobe the eonstructicn placed upon this Article by the courts. Daniels v. State, 77 S. liJ. 215';Butler v. State, 299 S' W. 420. As amatter ofprecaution, the order of the court appointing a ccunty attorney pro tom should show that neither thecounty attorney nor district attorney was present. Such as appcintment may be made to represent the State in all cases andmatters coming before the court at the term atwhich the appointment ismade or in aparticular case only. The appointment cannot extend beyond the term, (State
v. Manlove, 33 Tex. 798) but if a county attorney pro ternis appointed at one term cl?court to represent the St::Le???-a case, and qualif!~edi~ndercud;‘: aspcintme?t, he may prosecute the case7at a subscquent~t;r~ 8;~j.tho!~t rc-appointment. Narnoch

V. StaLc, 7 Cr. 1~.269. ,ihcni;county attorney pro,ternis appointed, it appears that hemust take the constitu,t?%al cath of office as county attorney pro tern. Marnoch v. State, supra. Such an attorney pro ternhas all thepowers and duties of the regular pr.osecutingattorney. State v. Lackey, 35 Tex. 357. They are evidently authorized toprepare 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 ternin aparticular casewhere he is for my reason disqualified to represent the State.

Itwill be noted that said Article 31 also applies to justice courts, andwhat hasheretofore been said with reference to appointment of acounty attorney pro ternby a county judge applies to a justice of thepeace. We think it is also applicable to any judge who sits as an examining courto 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 inhis districtor county, he shall reduce the complaint ti writing and cause the same tobe signed and sworn toby the complainant, and it shall be duly attested byhim and the succeeding Article requires him, if the offense be amisdemeanor, 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 amagistrate of the county. In our opinicn, Article 28 isnot exclusive as towho shall preoare complaints, and that where the county attorney is absent, the complaint may beprepared by a justice of thepeace or any other officer orperson, but, of course, the complaint must be sworn toby the complainant before some officer authorized to administer oaths, If the complaint charges amisdemeanor and thedefendant is tobe 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 toprepare 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 timebefore,the offense isbarred 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 ternwill have an opportunity to file the information beF- ore the case is called for trial.Honorahlt R. E. Bibb, page 6 O-4979

following InTexas 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 theprosecution of its claims and suits, and topay for such services out of the county funds. It seems, however, that the commissioners' court does not have the power todeprive, the county attorney ofhis rightful authority in this regard. Ths employment cf counsel isrestricted to special cases where the'semrices of an attorney are required;
nor has the court power tomake an crder which will warrant thepayment of county money to an nttorne formed.a for services neither required nor per-

(Adamsv. 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 oflaw, the commissioners' court would not have the authority to engage ccunsel to perform theduties of county attorney ofyour county, but that itwould have authority to engage counsel tcmassist the ccunty attorney in the performance of the duties referred to inArticle 339, provided it did not attempt to deprive the county attorney ofhis rightful authority in this regard. It would alsohave authority to engage counsel to advise said court, as ithas been held that Article 334.was intended to impose a dutyupon the county and district attorneys, andnot as arestriction upon the commissioners' court in the employment of attorneys toadvise 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