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 court when 

the county attorney is disqualified. 

Dear Mr. Curtis: 

you have requested our opinion regarding the procedure 

to be followed when the judge of a county court at law has 

disqualified himself in a pending case and the county attorney is disqualified 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 in any 

criminal case pending in the court of 

which he is judge, the parties 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 

at which such case may be called for 

trial, the practicing attorneys of the 

court present may elect from among 

their number a special judge who shall 

try the case. The election of the special judge shall be conducted in accordance with the provisions of Article 

1887, et seq., V.A.C.S. 

In the present instance, one of the parties is the county 

attorney, who is himself disqualified from participating in 

the case. Article 2.07(a) of the Code of Criminal Procedure 

states that, 
The Honorable Tom Curtis - page 2 (H-10061 

Whenever an attorney.for the state is 

disqualified to act in any case or proceeding . . . 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 . . . 

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 the district attorney to do so in the 

county attorney's absence. 

The procedure described in section 1 of article 30.03 

for selecting a especial judge is, however, permissive only, 

and it is not the exclusive method prescribed. Section 2 of 

that statute provides: 

In the event a county judge or the regular judge of a county court at law created 

in a county is absent, or is for any cause 

disabled from presiding, a special judge, 

who is an attorney, may be appointed by 

the commissioners court of the county. 

Clearly, a regular judge who has disqualified himself from 

presiding in a particular case is "for any cause disabled 

from presiding" under the terms of section 2. Since the provisions of section 1 are not operable because of the disqualification of the county attorney, we believe that section 

2 states the appropriate method for selecting the special 

judge. In our opinion, therefore, the commissioners court 

of the county should appoint "a special judge who is an 

attorney" to preside while the regular judge is disqualified. 

Under the terms of article 2.07(a), such special judge should 

then "appoint any competent,attorney to perform the duties of 

the office" of county attorney during the pendency of the 

trial. 

-. SUMMARY .- 

When the judge of a county .court at law 

has disqualified himself from presiding 

in a misdemeanor case, and the county 

attorney is himself disqualified from 

p. 4164 
The 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 

p. 4165