The Honorable Guy Hardin District Attorney 31st Judicial District P.O. Box 571 Shamrock, Texas

..~ Dear Mr. Hardin: June 11. 1974 Opinion No. H- 324

r Re: Authority of District Judge to

appoint attorney pro ternunder Art. 2.07, Vernon’s Code of Criminal Procedure, when District Attorney is ‘notdisqualified.

-Y&have requested **our** opinion on two separate questions. The first is whether a District Judge has authority, under Article 2.07 of the Texas Cod,e of.Criminal Procedure, to appoint an attorney pro tern to act for the District Attorney when the latter is neither ill, out of the district nor disqualified.

Article 2.07, V. T. C. C.P., as amended. in 1973 (Acts 1973, 63rd Leg., ch. 154, p. 356). provides: (a) Whenever an attorney for the state is disqualified to act in any case or proceeding, is absent from the county or district, or is otherwise unable to perform the duties ofhis office, or in any instance where there is no attorney for-the state, thejudge of the court in which he represents the state may appoint any competent attorney to perform the duties ofthe office during the absence or disqualifica’- tion of’-the attorney for thenstate. (b) Ifthe appointed attorney is also an attorney for the state, the duties of the appointed office are additional duties ofhisspresent office, and he is not entitled to

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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 onfiling an oath with the clerk of the court. He shall receive compensation in the same amount and manner as an attorney appointed to represent an indigent person. (d)Inthis article, “attorney for the state” means a county attorney, a district attorney, or a criminal district attorney. Also pertinent to the answer to your first question are the provisions ofArticle 2.02, V. T. C. C. P. : The county attorney shall attend the terms of court inhis county below the grade of district court, and shall represent the State in all criminal cases under examination or prosecution in said county: and in the absence of the district attorney, he shall represent the State alone and, when requested, shall aid the district attorney in the prosecution of any case in behalf of the State in the district court. (emphasis added) The office of District Attorney is a constitutional one created by Article 5, 521ofthe Texas Constitution, [See Moore v. State, 57 Tex. 307 (1882); Attorney General Opinion H-72 (1973)], which provides that he shall be elected. Vacancies in the office are to be filled by the Governor, with the advice and cons,ent of the Senate until the first general election. Texas Const. Art. 4, g12.

Reading Article 2.07 together with Article 2.02 of the Code of Criminal Procedure, as we are required to do by the rule that all statutes

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in pari materia will be read together (53 Tex. Jur.: 2d, **Statutes, 5** **186,** p. 280 and cases cited), we conclude that it is both the duty and the right of the county attorney, to represent the state in the absence of the district attorney and that it is only when both the district and county attorneys are unable to serve that.the district court may exercise.the-authority conferred on it byArticle .2.07, V..T. C. C.P., .and appoint an attorney pro tern to represent the,state. See Attorney General’s Opinion No.. O-2531 (1940) and H-72,(1973).

The four circumstances under which the district **court** may appoint an attorney pro tern to represent the state, as set **out** in Art. 2.07, are where the attorney, for theLetate (1)i-sdisqualified; (2) is absent from the county or..dist+ct;,.,~3) i,aotherwise unable ,to perform~the duties ofhis office, as for instance, ifhe is sick; and (4).“in anyinstance where there is no attorney for .thestate. ” This last, in our opinion, must relate to ~:thoz circumstances wher,e_theoffice is vaca,nt. :

You advise that,~in your district, thejudge appointed an attorney pro tern tohandle matters,, before a grand.,jury,. even though you were preseint”a;nd,-not,~disqualified. The judge,: onthe other~ha,nd, has advised us thatyou -were;abaent from the state and.made’n.o.lohjection to the appointmentor the:continuation-of;the:appointee..fo:.act **after~you** returned. We caqnnotresdlve:disput.ed~fact,i,ssues;,. -Ifyou, were absenttand there was no

,., :,:..y. .: . ..: qualified.conntyattorney available to fill yoursposit&n ,,,,,we believe thejudge had authority: toapp&nt:an attorney ‘pro tern.. **Othk&ise** he did not. I Your second question involves the propriety of the court questioning a~..witness in~..a.criminal:tria,l,.about the witness! s,prior convictions when the distsict’attorney had..decidedthat .such testimony would be.-inadmissible.

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. ~,,,1..!‘i ~.:,,.;~.c ~~ ,~ .:,‘~ .,‘I’ , i ;i .,, ,~.Y i:_ ::~Thk:gcneral; rule .:seems to-be that, a.lthough&he triaL,court ordinarily should refraip~fram_~aki~g.przrt in the questioning,of witnesi8es, @does have the right to satisfy itself upon questions subject to rulings. I:See, for example, Jackson v. State, 318S.W. 2d 98 (Tex. Grim. 1958); Milo v. State, 214S.W. 2d 618 (Tex. ~~CriIhiG 1948).:.’ ._ i.’ .,;, ,:

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Since the determination ofwhether error was committed is properly the function of an appellate court, we must decline to.answer your second question. SUMMARY Ifthe district attorney is present and is not otherwise disqualified, the district **court** lacks jurisdiction to appoint either the county attorney or an attorney pro tern to work with a grand jury. Very truly **your*,**

Attorney General of Texas

&a DAVID M. KENDALL, Chairman Opinion Committee

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