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 tern under 

Art. 2.07, Vernon’s Code of Criminal 

Procedure, when District Attorney 

is ‘not disqualified. 

-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 

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 disqualifica’- 

tion of’-the attorney for then state. 

(b) If the appointed attorney is also an attorney for 

the state, the duties of the appointed office are additional 

duties of hiss present office, and he is not entitled to 

p. 1498 
The Honorable Guy Hardin page 2 (H- 324) 

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 manner 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 

a criminal district attorney. 

Also pertinent to the answer to your first question are the provisions 

of Article 2.02, V. T. C. C. P. : 

The county attorney shall attend the terms of 

court in his 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, 5 21 of the 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 

p. 1499 
The Honorable Guy Hardin page, 3 (H-324) 

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 by Article .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-s disqualified; (2) is absent from the 

county or..dist+ct;,.,~3) i,a otherwise unable ,to perform~the duties of his 

office, as for instance, if he is sick; and (4).“in anyinstance where there 

is no attorney for .the state. ” This last, in our opinion, must relate to 

~: thoz circumstances wher,e _the office is vaca,nt. : 

You advise that,~ in your district, the judge appointed an attorney 

pro tern to handle matters,, before a grand.,jury,. even though you were 

preseint”a;nd,-not,~disqualified. The judge,: on the other~ha,nd, has advised 

us that you -were;abaent from the state and. made’n.o.lohjection to the appointmentor the:continuation-of;the:appointee..fo:.act after~you returned. We 

caqnnot resdlve:disput.ed~fact,i,ssues;,. -Ifyou, were absenttand there was no 

,., :,:..y. .: . ..: 

qualified.conntyattorney available to fill yours posit&n ,, ,,,we believe the judge 

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. 

. *. . 

~,,, 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, 318 S. W. 2d 98 (Tex. Grim. 1958); Milo v. State, 214 S. W. 

2d 618 (Tex. ~~CriIhiG 1948).:.’ ._ 

i.’ .,;, ,: 

pa 1500 
The Honorable Guy Hardin page 4 (H-324) 

Since the determination of whether error was committed is properly 

the function of an appellate court, we must decline to.answer your second 

question. 

SUMMARY 

If the 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 

p* 1501