Untitled Texas Attorney General Opinion ( 1988 )

THE ATTORNEY GENERAL
OF TEXAS
June 28, 1988
Honorable Tim Rudolph Opinion No. JM-925
Somervell County Attorney
P. 0. BOX 647 Re: Powers and duties of a
Meridian, Texas 76665 county attorney pro tern under
article 2.07 of the Code of
Criminal Procedure (RQ-1355)
Dear Mr. Rudolph:
You advise that you are currently the county attorney
of Somervell County. The office of county attorney of
Bosgue County is Vacant. The two counties have entered into
an agreement pursuant to section 2.07 of the Code of
Criminal Procedure1 as amended by the 70th Legislature
1. Section 2.07 of the Code of Criminal Procedure was
amended by amending subsection (b) and adding subsection
(b-l) by Acts 1987, 70th Leg., ch. 918, section 2, at 6239,
effective August 31, 1987 to read as ,follows:
'(a) Whenever an attorney for the state is
disqualified to act in any case or proceed-
ing, 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) Extent as otherwise nrovided bv this
subsection, if the appointed attorney is also
an attorney for the state, the duties of the
appointed office are additional duties of his
present office, and he is not entitled to
(Footnote Continued)
p. 4639
Honorable Tim Rudolph - Page 2 (JM-925)
whereby Bosgue County will compensate Somervell County for
your performing the functions of county attorney for Bosgue
County.
You advise that the agreement between the two counties
has prompted the questions you have submitted. You have
furnished this office with copies of the agreement and an
information signed by you that are relevant to your
questions. You ask:
1. Do we need an information signed in
order to prosecute, or does article 2.05,
Code of Criminal Procedure, allow us to
prosecute on complaint only?
2. who is authorized to sign the in-
formation if one is needed? Article 21.21 of
the Code of Criminal Procedure states that
(Footnote Continued)
additional compensation. Nothing herein
shall vrevent a commissioners court of a
countv from contractina with another
commissioners court to vav exvenses and
reimburse comvensation vaid bv a countv to an
attornev for the state who is avvointed to
perform additional duties.
(b-l) An attornev for the state who is
not disoualified to act mav recuest the court
to vermit him to recuse himself in a case for
aood cause and uvon avvroval bv the court is
discualified.
(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 clerk of the court. He shall receive
compensation in the same amount and manner as
an
indi;:;;r;z;sonappointed to represent an
(d) In this article, 'attorney for the
statet means a county attorney, a district
attorney, or a criminal district attorney.
(Emphasis added to reflect changes made by
amendment.)
p. 4640
Honorable Tim Rudolph - Page 3 (JM-925)
the charging instrument must be signed by the
county or district attorney. May I sign as a
county attorney pro tern provided I list the
authority by which I sign?
3. If a county attorney pro tern cannot
sign an information and if an information is
needed to prosecute, can the district
attorney sign it? If the district attorney
does sign the information, who can prosecute?
4. If the district attorney is willing to
act as a prosecuting attorney in county
court, does this pre-empt the authority of
the county attorney pro tern?
5. Does the Judge under article 2.07 of
the Code of Criminal Procedure need to enter
an order of appointment in each case or is
the agreement at enclosure no. 1 sufficient
for all cases?
6. If the agreement is sufficient for all
cases, should it be renewed at each term of
court?
Your first question appears to relate to the provision
in article 2.05 of the Code of Criminal Procedure permitting
the trial of misdemeanors upon complaint in counties having
no county attorney. Article 2.05 provides in pertinent
part, as follows:
If the offense be a misdemeanor, the
attorney shall forthwith prepare an informa-
tion based upon such complaint and file the
same in the court having jurisdiction; pro-
vided, that in counties havina no countv
attornev. misdemeanor cases mav be tried unon
comnlaint alone. without an informa-
-.
tion . . . (Emphasis added.)
The answer to your inquiry as to whether a county
attorney pro tern may prosecute upon complaint in instances
where an information is normally required turns on whether
the county is considered as "having no county attorney." An
opinion in an 1872 Texas Supreme Court case, State v.
Lackey, 35 Tex. 357, held that an attorney pro tern has all
the powers and duties of the regular prosecuting attorney.
This holding appears to be consistent with the definition of
@'pro tern" and the language of the statute providing that the
p. 4641
Honorable Tim Rudolph - Page 4 (JM-925)
appointed attorney "perform the duties of the office during
the absence or disqualification for the state." Black's Law
Dictionary 1101 (5th ed. 1979) defines pro tern, as follows:
Abbreviation for 'pro ternpore' which means,
literally, for the time being. Hence, one
who acts as a substitute on a temporary basis
is said~to serve pro tern.
The foregoing definition provides a common thread
running through the cases, see, m, Scherff v. Missouri
Pac. Rv. Co., 17 S.W. 39 (1891), addressing the matter of an
official who serves on a pro tern basis. It appears that the
only limitation on the powers and duties of a county
attorney pro tern as contrasted with an attorney who serves
for a term is that the pro tern acts only "for the time
being.'* While the pro tern acts as the county attorney he is
required to fulfill the responsibilities imposed upon the
county attorney. Thus, the county attorney pro tern is not
relieved of the responsibility of filing an information
merely because his time of service in such position may be
somewhat more limited than that of a county attorney who
serves for a term.
You ask who is authorized to sign the information.
Article 21.21 of the 'Code of Criminal Procedure provides
that the information l'must be signed by the district or
county attorney, officially.1V The information must be
signed by the attorney and show on its face the authority
under which the attorney acts. Flores v. State, 264 S.W.2d
952 (Tex. Crim. App. 1954). The amendment to section (b)
allows the commissioners court of Bosgue County to reimburse
Somervell County. It does not abrogate the requirement of
section (a) that the judge in any case or proceeding in
which you represent the state appoint you to perform the
duties of county attorney. The information should be signed
by you as county attorney pro tern and reflect the fact that
the judge presiding in that court has appointed you to
represent the state.
Your third guestion.is rendered moot by our conclusion
that the county attorney pro tern may sign the information.
Your fourth question is predicated upon the district
attorney being "willing to act as prosecuting attorney
in county court." You ask whether the authority of the
county attorney pro tern is preempted under this scenario.
Article 2.01 of the Code of Criminal Procedure
delineates the responsibilities of the district attorney in
P. 4642
Honorable Tim Rudolph - Page 5 (JM-925)
representing the state. Article 2.01 provides in pertinent
part as follows:
Each district attorney shall represent the
State in all criminal cases in the district
courts of his district and in appeals
therefrom, except in cases where he has been,
before his election, employed adversely.
When any criminal proceeding is had before an
examining court in his district or before a
judge upon habeas corpus, and he is notified
of the same, and is at the time within his
district, he shall represent the State
therein, unless prevented by other official
duties.
Article 2.02 of the Code of Criminal Procedure sets
forth the duties of county attorneys, as follows:
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 in behalf of the
State in the district court. He shall
represent the State in cases he has pro-
secuted which are appealed.
The fact that the district attorney may be willing
to perform any duty imposed upon the county attorney by
article 2.02 does not preempt the authority of the county
attorney pro tern.
You ask if it is necessary for the judge to enter an
order of appointment for each case. The contract entered
into by the counties provides that you perform the duties
ordinarily associated with the office of county attorney in
Bosgue County and that such agreement exist until terminated
by any party to the contract. Article 2.07(a) provides that
"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
office during the absence. . . .I' The judge presiding in
the court in which you represent the state should enter an
order appointing you to represent the state in each case.
p. 4643
Honorable Tim Rudolph - Page 6 (JM-925)
In your final question you ask if it is necessary for
the agreement between the counties to be renewed at each
term of court. Nothing in article 2.07 places any term
limitation upon an agreement between counties. Since the
contract authorized by article 2.07 is not limited to a term
of court it is not necessary for the agreement to be renewed
at each term.
SUMMARY
The county attorney pro 'tern serving
pursuant to an agreement entered into by
Somervell and Bosgue Counties is not relieved
of the requirement to file an information
because his time of service may be somewhat
more limited than that of the county attorney
who serves for a term. A county attorney pro
tern may sign an information. The information
must reflect on its face the authority under
which the county attorney pro tern serves.
The fact that the district attorney may be
willing to perform any duty imposed upon the
county attorney by article 2.02 does not
preempt any authority of the county attorney
pro tern. The judge in the court in which the
county attorney pro tern represents the state
should enter an order in each case appointing
him to represent the state. It is not
necessary for the commissioners courts of
Somervell and Bosgue Counties to renew the
J-/h
contract at each term of court.~
Very truly yo : ,
.
JIM MATTOX
Attorney General of Texas
MARY KELLER
First Assistant Attorney General
LOUMCCREARY
Executive Assistant Attorney General
JUDGE ZOLLIE STEAELEY
Special Assistant Attorney General
p. 4644
Honorable Tim Rudolph - Page 7 (JM-925)
RICK GILPIN
Chairman, Opinion Committee
Prepared by Tom G. Davis
Assistant Attorney General
p. 4645