Mr. Rick Dollahan 

Gaines County Auditor 

Post Office Box 84 7 

Seminole, Texas 79360 

Dear Mr. Dollahan: 

KEN PAXTON 

ATTORNEY GENERAL OF TEXAS 

January 18, 2017 

Opinion No. KP-0130 

Re: Whether a county attorney who is 

appointed to serve as a special prosecutor may 

be paid additional compensation (RQ-0120-KP) 

You ask whether a county attorney who is appointed by a district attorney to serve as a 

special prosecutor may be paid additional compensation. 1 You inform us that you received 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, but the district attorney disagrees. Id. at 2. 

Article 2.02 of the Code of Criminal Procedure sets forth duties of a county attorney: 

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 i~ behalf of the State in the 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 of the district attorney upon the district attorney's request. Id.; see also TEX. Gov'T CODE 

§ 311.016(2) (stating the rule of statutory construction that the word "'shall' imposes a duty" unless 

context-necessarily requires otherwise). However, a district or county attorney may not "take from 

any person a fee, article of value, compensation, reward, or gift ... to prosecute a case that he is 

required by law to prosecute." TEX. Gov'T CODE§ 41.004. Further, article III, section 53 of the 

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 of the Code of Criminal Procedure 

to represent the State in the district court of the county, the county attorney may not receive 

additional compensation for doing so. 

You reference article 2.07 of the Code of Criminal 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 or proceeding, is absent from the county or district, or is otherwise 

unable to perform the duties of his 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) at 4 (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 attorney pro tern from a special prosecutor). While article 2.07 of the Code of Criminal 

Procedure governs the appointment of an attorney pro tern, a special prosecutor participates in a 

particular case at the request of the prosecuting attorney. Id. A district attorney possesses the 

authority to employ and compensate assistant prosecuting attorneys, but we are not aware of any 

statute that would permit the district attorney to provide additional compensation to a county 

attorney for performing a duty required by article 2.02 of the Code of Criminal Procedure. See 

TEX. Gov'T CODE §§ 41.102, .106 (stating a district attorney's authority to employ and fix the 

compensation of assistant prosecuting attorneys). Accordingly, 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 of the 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 of the 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 of Texas 

Assistant Attorney General, Opinion Committee