# The Attorney General ofTexas

November 9, 1979 MARKWHITE AttorneyGeneral

Honorable Rene A.Guerra Criminal District Attorney Pro Tern Hidalgo County Courthouse Edinburg, Texas 78539 Opinion No. MN-80 Re: Compensation of the District Attorney Pro Tern of Hidelgo County.
Dear Mr.Guerra: You inform usthat you have been appointed tobe 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 asassistant district attorney and wishto know what compensation, ifany, 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. SeeV.T.C.S. art. 332d, S10.

- Article 2.07ofthe Code ofCriminal 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 isno attorney for thestate, 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 ofthe attorney for the state. (b)Ifthe appointed attorney isalso enattorney 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 isnot an attorney for the state, he isqualified to perform the duties of the office for the period ofabsence ordisqualification of the attorney for the state on filing an oath with the

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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, adistrict attorney, oracriminal district attorney. An attorney for the state who isappointed district attorney pro tern is not entitled to additional compensation. Sec. (b). “Attorney for the state” isdefined in section (dl as
“a county attorney, adistrict attorney, oracriminal district attorney.” Wedonot 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, S1. The assistant district attorney isappointed by and subject to removal by the district attorney. V.T.C.S. art. 332a, SS1- 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 anassistant 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, 75S.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. Weconclude 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 ofTexas orHidalgo County isresponsible 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 inpart:

Section 1. Acounsel appointed to &fend a person accused of a felony or a misdemeanor punishable by imprisonment, or to represent an indigent in ahabeas corpus hearing, shall bepaid 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 innoevent tobeless than $50..

.. Other sections provide minimum fees for each day in court on specific kinds ofsuits 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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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 bythe State.

... V.T.C.S. art. 332~1 (emphasis added). In ouropinion, the underlined language refers to either the criminal district attorney or the county attorney whoperforms 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 bylaw onthe prosecuting attorney.” V.T.C.S. art. 332a, S3. SUMMARY

Anassistant district attorney whoisappointed district attorney pro tern should be compensated for his work in that capacity pursuant to article 2.07(c) and 26.05of the Code ofCriminal Procedure. His compensation comes from the county general fund.
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Attorney General ofTexas JOHN W.FAINTER, JR. First Assistant Attorney General TED L.HARTLEY Executive Assistant Attorney General Prepared bySusan Garrison Assistant Attorney General APPROVED: OPINION COMMITTEE C.Robert Heath, Chairman Jim Allison David B.Brooks Walter Davis Susan Garrison Rick Gilpin William GReid

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