**June 1,**  **1977**

The Honorable Tom Curtis District Attorney 47th Judicial **District** Amarillo, Texas Opinion No. H-1006

Re: Representation of the state in county courtwhen the county attorney isdisqualified.

DearMr. Curtis:

you have requested our opinion regarding theprocedure tobe followed when the judge of a county court at lawhas disqualified himself inapending case and the county attorney isdisqualified from participating in the selection of a special judge.
Article 30.03 of the Code of Criminal Procedure provides, in section 1:

When the judge of the county court or county court at law, or of any county criminal court, is disqualified inany criminal case pending in the court of which he is judge, theparties may by consent agree upon a special judge to try such case. If they fail to agree upon a special judge to try such case, on or before the third day of the term atwhich such casemay be called for trial, the practicing attorneys of the court present may elect from among their number a special judgewho shall try the case. The election of the special judge shall be conducted inaccordance with theprovisions ofArticle 1887, et seq.,V.A.C.S.

In thepresent instance, one of the parties is the county attorney, who ishimself disqualified fromparticipating in the case. Article 2.07(a) of the Code of Criminal Procedure states that,The Honorable Tom Curtis -page 2 (H-10061

Whenever anattorney.for the state is disqualified to act inany case or proceeding

. . .the judge of the court in which he represents the statemay appoint any competent attorney toperform the duties of the office during the

. . . disqualification of the attorney for the state. Although article 2.02 requires the county attorney to represent the state in the absence of the district attorney, no statute authorizes thedistrict attorney todo so in the county attorney's absence.
The procedure described in section 1of article 30.03 for selecting aespecialjudge is,however, permissive only, and it is not the exclusive method prescribed. Section 2of that statute provides:

In the event a county judge or the regular judge of a county court at law created ina county is absent, or is for any cause disabled frompresiding, a special judge, who isan attorney, may be appointed by the commissioners court of the county. Clearly, a regular judgewho has disqualified himself from presiding inaparticular case is "for any cause disabled frompresiding" under the terms of section 2. Since the provisions of section 1are not operable because of the disqualification of the county attorney, we believe that section 2 states the appropriate method for selecting the special judge. Inour opinion, therefore, the commissioners court of the county should appoint "a special judgewho is an attorney" topreside while the regular judge isdisqualified. Under the terms of article 2.07(a), such special judge should then "appoint any competent,attorney toperform the duties of the office" of county attorney during thependency of the trial.
SUMMARY -. .- When the judge of a county .courtat law has disqualified himself from presiding inamisdemeanor case, and the county attorney ishimself disqualified from

p. 4164The Honorable Tom Curtis -page 3 (H-1006)

participating in the selection of a special judge, the county commissioners court should appoint a special judge to hear the case.

APPROVED: ~~ -zAttorney General

EiVID M. KENDALL, First Assistant

C. ROBERT HEATB, Chairman Opinion Committee
km1 of Texas

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