The Attorney General of Texas 

November 9, 1979 

MARK WHITE 

Attorney General 

Honorable Rene A. Guerra 

Criminal District Attorney Pro Tern 

Hidalgo County Courthouse 

Edinburg, Texas 78539 

Opinion No. MN- 8 0 

Re: Compensation of the District 

Attorney Pro Tern of Hidelgo 

County. 

Dear Mr. Guerra: 

You inform us that you have been appointed to be district attorney pro 

tern for Hidalgo County pursuant to article 2.07 of the Code of Criminal 

Procedure. At the time of your appointment you were an amistant district 

attorney for Hidalgo County. You are presently receiving the same salary 

you earned as assistant district attorney and wish to know what compensation, if any, you should receive as district attorney pro tern. The situation 

arose when the district attorney was disqualified and your question involves 

the salary paid the district attorney pro tern during the period of 

disqualification. See V.T.C.S. art. 332d, S 10. 

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Article 2.07 of the Code of Criminal Procedure provides as follows: 

(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 

disqualification of the attorney for the state. 

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

the state, the duties of the appointed office are 

additional duties of his present office, and he is not 

entitled to 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 

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Honorable Rene A. Guerra - Page Two (RW-80) 

clerk of the court. He shell 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. 

An attorney for the state who is appointed district attorney pro tern is not entitled 

to additional compensation. Sec. (b). “Attorney for the state” is defined in section (dl as 

“a county attorney, a district attorney, or a criminal district attorney.” We do not believe 

an assistant district attorney is an attorney for the state within the meaning of section 

2.07. Other statutes distinguish between the district attorney and his assistants. The 

district attorney is an elected official. V.T.C.S. art. 326k-1, S 1. The assistant district 

attorney is appointed by and subject to removal by the district attorney. V.T.C.S. art. 

332a, SS 1 - 4. The definition of “attorney for the state” applies to all of article 2.07 of 

the Code of Criminal Procedure. If “attorney for the state” included assistants, then 

article 2.07 would permit the court to appoint an assistant district attorney pro tern. The 

Court of Criminal Appeals has, however, stated that the predecessor of article 2.07 did 

not authorize the judge to appoint an assistant district attorney. Locklin v. State, 75 S.W. 

305 (Tex. Crim. App. 1903). Construing article 2.07 to authorize the appointment of an 

assistant district attorney would also bring it into conflict with article 332a, V.T.C.S., 

which permits the prosecuting attorney to choose his own assistants. We conclude that 

you should be compensated for your work as district attorney pro tern as provided in 

article 2.07(c). 

You next ask whether the State of Texas or Hidalgo County is responsible for paying 

your compensation as district attorney pro tern. Article 2.07 of the Code of Criminal 

Procedure provides for “compensation in the same amount and manner as an attorney 

appointed to represent an indigent person.” Article 26.05 of the Code of Criminal 

Procedure provides in part: 

Section 1. A counsel appointed to &fend a person accused of a 

felony or a misdemeanor punishable by imprisonment, or to 

represent an indigent in a habeas corpus hearing, shall be paid from 

the general fund of the county in which the prosecution was 

instituted cr habeas corpus hearing held, according to the following 

schedule: 

(a) For each day or a fractional part thereof in court 

representing the accused, a reasonable fee to be set by the court 

but in no event to be less than $50.. . . 

Other sections provide minimum fees for each day in court on specific kinds of suits and 

for prosecuting appeals. The statute requires the court to set a reasonable fee above a 

stated minimum, to be paid from the county general fund. See Attorney General Opinion 

H-544 (197 51. 

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Honorable Rene A. Guerra - Page Three (Mw-So) 

Article 332b-1, V.T.C.S., governs the payment of the criminal district attorney in 

Hidalgo County. It lists a number of counties, including Hidaigo, and then states as 

follows: 

in ail of which counties there is either the office of criminal 

district attorney or the office of county attorney performing the 

duties of a district attorney, the official performing such services 

shall be compensated for hi services by the State. . . . 

V.T.C.S. art. 332~1 (emphasis added). In our opinion, the underlined language refers to 

either the criminal district attorney or the county attorney who performs his duties. It 

does not require the state to compensate other persons who perform the duties of a 

district attorney such as a district attorney pro tern, or an assistant district attorney who 

is authorized “to perform all duties imposed by law on the prosecuting attorney.” V.T.C.S. 

art. 332a, S 3. 

SUMMARY 

An assistant district attorney who is appointed district attorney pro 

tern should be compensated for his work in that capacity pursuant 

to article 2.07(c) and 26.05 of the Code of Criminal Procedure. His 

compensation comes from the county general fund. 

&* 

Attorney General of Texas 

JOHN W. FAINTER, JR. 

First Assistant Attorney General 

TED L. HARTLEY 

Executive Assistant Attorney General 

Prepared by Susan Garrison 

Assistant Attorney General 

APPROVED: 

OPINION COMMITTEE 

C. Robert Heath, Chairman 

Jim Allison 

David B. Brooks 

Walter Davis 

Susan Garrison 

Rick Gilpin 

William G Reid 

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