Mr. Rick Dollahan Gaines CountyAuditor Post Office Box 847 Seminole, Texas 79360
Dear Mr. Dollahan: 

## KEN PAXTON ATTORNEY GENERAL OF TEXAS
January 18, 2017
OpinionNo. KP-0130 Re: Whether a county attorney who is appointed to serve as a special prosecutor may bepaidadditional compensation(RQ-0120-KP)

You ask whether a county attorney who is appointed by a district attorney to serve as a specialprosecutormaybepaidadditional compensation. 1 Youinformus thatyoureceived a letter from the District Attorney for the 106th Judicial District directing payment of$500 to the Gaines County Attorney for services rendered on July 1, 2016 as a "special prosecutor" representing the State in various Gaines County district court proceedings. Request Letter at 1. You further state that the district attorney, not the court, appointed the county attorney to serve as a special prosecutor. Id. You inform us that the county attorney believes that he is not entitled to the payment, butthe district attorney disagrees. Id. at 2. Article 2.02 ofthe Code ofCriminal Procedure sets forth duties ofa county attorney: The county attorney shall attend the terms of court in his county belowthe grade ofdistrict court, and shall represent the State in all criminal casesunderexaminationorprosecutionin saidcounty; and in the absence ofthe district attorney he shall represent the State alone and, when requested, shall aid the district attorney in the prosecution ofany case**i~** behalfofthe State inthe district court. TEX. CODE CRIM. PROC. art. 2.02. Article 2.02 imposes a duty on a county attorney to represent the State in criminal cases in district court, whether alone when the district attorney is absent, or in aid ofthe district attorney upon the district attorney's request. Id.; see also TEX. Gov'TCODE § 311.016(2) (statingtherule ofstatutoryconstructionthattheword "'shall' imposesa duty"unless context-necessarilyrequires otherwise). However, a district orcountyattorneymaynot "takefrom any person a fee, article ofvalue, compensation, reward, or gift
... to prosecute a case that he is required by law to prosecute." TEX. Gov'TCODE§ 41.004. Further, article III, section 53 ofthe Constitution prohibits the payment of "any extra compensation, fee or allowance to a public

'See Letter from Mr. Rick Dollahan, Gaines Cty. Auditor, to Honorable Ken Paxton, Tex. Att'y Gen. at I (July 2I,2016), https://www. texasattomeygeneral.gov/opinion/requests-for-opinion-rqs ("Request Letter").Mr. Rick Dollahan

- Page 2 (KP-0130)

officer, agent, servant or contractor, after service has been rendered." TEX. CONST. art. III, § 53. Thus, because a county attorney has a duty under article 2.02 ofthe Code ofCriminal Procedure to represent the State in the district court of the county, the county attorney may not receive additional compensation for doing so. Youreference article 2.07 ofthe Code ofCriminal Procedure. Request Letter at 2. Article 2.07 authorizes a court to appoint an attorney pro tern "[w]henever an attorney for the state is disqualified to act in any case orproceeding, is absent from the county or district, or is otherwise unable to performthe duties ofhis office." TEX. CODE CRIM. PROC. art. 2.07(a). However, "ifthe appointed attorney is also an attorney for the state," the appointed attorney "is not entitled to additional compensation." 

### Id. art. 2.07(b). Because a county attorney is an attorney for the State, a county attorney appointed under article 2.07(b) may not receive additional compensation for services as an attorney pro tern. 

### Id. art. 2.07(b), (d); 

### see also Tex. Att'y Gen. Op. No. JM-763 (1987) at4 (determining that article 2.07 prevents a county attorney from receiving compensation as an appointed attorney for the State). You also state that the district attorney specified that the county attorney should be compensated as a "special prosecutor." Request Letter at 1. The terms "attorney pro tern" and "special prosecutor" are sometimes used interchangeably, but the positions are fundamentally different. 

### Coleman v. State, 246 S.W.3d 76, 82 n.19 (Tex. Crim. App. 2008) (distinguishing an article 2.07 attorneypro tern from a specialprosecutor). While article 2.07 ofthe Code ofCriminal Procedure governs the appointment ofan attorney pro tern, a special prosecutor participates in a particular case at the request ofthe prosecuting attorney. Id. A district attorney possesses the authority to employ and compensate assistant prosecuting attorneys, but we are not aware ofany statute that would permit the district attorney to provide additional compensation to a county attorney for performing a duty required by article 2.02 ofthe Code ofCriminal Procedure. 

### See TEX. Gov'T CODE §§ 41.102, .106 (stating a district attorney's authority to employ and fix the compensationofassistantprosecuting attorneys). Accordingly, a county attorney is notentitledto receive extra compensation for representing the State in a criminal matter in the county's district court atthe request ofthe district attorney.

### Mr. Rick Dollahan

- Page 3 (KP-0130)



### SUMMARY A county attorney is not entitled to receive extra compensation for representing the State in a criminal matter in the county's district court at the request ofthe district attorney.

JEFFREY C. MATEER First Assistant Attorney General BRANTLEY STARR Deputy First Assistant Attorney General VIRGINIA K. HOELSCHER Chair, Opinion Committee WILLIAM A. 

### HILL Very truly yours,

KEN PAXTON Attorney General ofTexas

Assistant Attorney General, Opinion Committee