Untitled Texas Attorney General Opinion ( 1987 )

March 30, 1987
Eonorable Gary Garrison Opinion No. JR-661
Ector County Attorney
Room 218, Courthouse Re: Whether a commissioners court
Odessa, Texas 79761 may contract with outside counsel
to handle bond forfeitures
Dear Mr. Garrison:
You ask whether the Commissioners Court of Ector County, Texas,
has the authority to contract with outside counsel to handle bond
forfeitures. The bond forfeiture proceedings in question arise out of
criminal cases. You state that the felonies are handled by the
district attorney and the misdemeanors are handled by the county
attorney.
Article V, section 21. of the Texas Constitution provides in
pertinent part:
The county attorneys shall represent the state in
all cases in the district and inferior courts in
their respective counties; but If any county shall
be included in a district in which there shall be
a district attorney. the respective duties of
district attorneys and county attorneys shall in
such counties be regulated by the legislature.
Article 2.01 of the Texas Code of Criminal Procedure, "Duties of
district attorneys" provides 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. It shall be the primary duty of all
prosecuting attorneys, including any special
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Honorable Gary Garrison - Page 2 (JM-661)
prosecutors, not to convict, but to see that
justice is done. They shall not suppress facts or
secrete witnesses capable of establishing the
innocence of the accused.
Amended by Acts 1981, 67th Leg., p. 801, ch. 291.
698. off. Sept. 1, 1981.
Article 2.02 of the Code of Criminal Procedure, "Duties of county
attorneys" states:
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 prosecuted which are
appealed.
Amended by Acts 1981, 67th Leg., p. 801, ch. 291.
599, eff. Sept; 1, 1981.
Since Ector County has both a county attorney and district
attorney, you suggest that the foregoing provisions of the Code of
Criminal Procedure are applicable. You evidence some concern about
language in Blue v. State, 341 S.W.2d 917, 919 (Tex. Grim. App. 1960)
where, on the State's Motion for Rehearing, it was held:
A bond forfeiture is a criminal action, but after
the entry of judgment nisi all the proceedings,
unless otherwise provided, are governed by the
same rules as govern in civil causes; that is. by
the applicable Rules of Civil Procedure.
Your concern is directed to the court's holding that the Rules of
Civil Procedure apply after the entry of the judgments nisi. We
assume that you are concerned that the court's holdings in Blue and
Tinker have the effect of transforming what had been a xinal
proceeding into a civil proceeding and thereby removing the case from
the statutory jurisdiction of the district and county attorneys. In
the more recent case, Tinker v. State, 561 S.W.2d 200 (Tex. Grim. App.
1978), the court approved the above quoted language from Blue. It is
our opinion that the fact that civil rules are employed following the
entry of the judgment nisi does not result in a bond forfeiture
proceeding losing its identity as a criminal case within the meaning
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Honorable Gary Garrison - Page 3 (JM-661)
of articles 2.01 and 2.02 of the Code of Criminal Procedure. It
follows that the District Attorney and the County Attorney in Ector
County are responsible for representing the state In bond forfeiture
matters.
In Attorney General Opinion g-544 (1975) the question of the
employment of a private attorney to assist in the conduct of a court
of inquiry was addressed. We find the following language in that
opinion to be dispositive of your question.
Another expense about which each of you inquire
is compensation for a private attorney to assist
in the conduct of the court of inquiry.
There is no specific authorization for the
appointment of an attorney to participate in a
court of inquiry. There is no express authorisa-
tlon for any attorney to represent the state in a
court of inquiry, as there is in an examining
trial [Code Grim. Proc. art. 16.061; before the
grand jury [art. 20.031; in a habeas corpus
proceeding [arts. 11.07, 11.391; and an inquest
upon a dead body [art. 49.121; or in a fire
inquest [art. 50.021.
Bowever. it has been held that:
It has always been the principal duty of
the district and county attorneys to
investigate and prosecute the violation
of all criminal laws, including the
elections laws, and these duties cannot
be taken away from them by the Legisla-
ture and given to others. (Emphasis
added) Shepperd v. Alanis, 303 S.W.2d
846, 850 (Tex. Civ. App. - San Antonio
1957, no writ hist.).
. . . .
In regard to the exclusiveness of the authority
of the county attorney, district attorney. and
attorney general to represent the state, see
Garcia v. Laughlin, 285 S.W.2d 191 (Tex. SC
1955); Staples v. State ex rel. King, 245 S.W. 639
(Tex. Sup. 1922); Maud v. Terrell. 200 S.W. 374
(Tex. Sup. 1918); Brady v. Brooks. 89 S.W. 1052
(Tex. Sup. 1905); Earris County v. Stewart, 41
S.W. 650 (Tex. Sup. 1897).
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Honorable Gary Garrison - Page 4 (JM-661)
Since there is no statutory authorization for
the appointment and compensation of a private
attorney to represent the state in a court of
inquiry, and since the above authorities indicate
that it is within the general duty of the county
attorney and district attorney to investigate the
violation of criminal laws, it is our opinion that
if the magistrate conducting the court of inquiry
desires an attorney to represent the state in the
inquiry, the county or district attorney should be
called upon to perform that duty. If the county
or district attorney is disqualified, absent, or
otherwise unable to perform the duties of his
office. an attorney pro ternmay be appointed under
article 2.07, Code of Criminal Procedure, and
compensated as authorized under that article.
Article 2.07 of the Code of Criminal Procedure provides:
(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 other-
wise 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 an
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 clerk of the court. Re
shall 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.
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Acts 1965, 59th Leg., vol. 2, p. 317, ch. 722.
Amended by Acts 1967, 60th Leg., p. 1733, ch. 659,
54, eff. Aug. 28, 1967; Acts 1973, 63rd Leg., p.
356, ch. 154, $1, eff. May 23, 1973.
We find no specific authority which would authorize the
Commissioners Court of Ector County to employ outside counsel to
handle bond forfeitures. We agree with the suggestion you make in
your analysis that an attorney may be employed under article 2.07 of
the Code of Criminal Procedure "if the necessary prerequisites are
met."
SUMMARY
There is no specific authority for the
Conxlssioners Court of Ector County "to contract
with outside counsel to handle bond forfeitures."
If the county or district attorney is disqualified,
absent, or otherwise unable to perform the duties
of his office, anyattorney pro ternmay be appointed
under article 2.07 of the Code of Criminal
Procedure.
JIM MA
Attorney General of Texas
JACK RIGRTOWRR
First Assistant Attorney General
MARY KELLER
Executive Assistant Attorney General
RICK GILPIN
Chairman, Opinion Committee
Prepared by Tom G. Davis
Assistant Attorney General
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