Untitled Texas Attorney General Opinion ( 1981 )

The Attorney General of Texas
December 4, 1981
MARK WHITE
Attorney General
Mr. Andy Shuval Opinion No. NW-404
Supreme Court Building
Executive Director
P. 0. Box 12546
Austin, TX. 76711 Texas Prosecutors Coordinating Re: Appointment of prosecutor
5121475-2501 Council pro tempore
Telex 9101674.1367 1414 Colorado
Telecopier 51214750266 Austin, Texas 78711
1607 Main St., Suite 1400 Dear Mr. Shuval:
Dallas, TX. 75201
21417428944 You have informed us that House Bill No. 649, passed in the last
legislative session, contains language that raises questions regarding
the manner and means by which a temporary prosecutor is appointed in
4624 Alberta Ave., Suite 160
El Paso, TX. 79905
certain situations where the elected prosecutor is unable to serve.
9151533.3464 Section 3 of House Bill No. 649 amends article 332d. V.T.C.S.. by
adding section 10A which provides in part:
1220 Dallas Ave.. Suite 202
(a) A prosecuting attorney pro tempore shall
Houston, TX. 77002
713/6500666
be appointed by the body or person who has the
authority to appoint the prosecuting attorney in
the event of a vacancy.
806 Broadway, Suite 312
Lubbock, TX. 79401
Acts 1981, 67th Leg., ch. 709, 53, at 2651.
6061747-5236
You ask what legal effect, if any, this statutory language has on
4309 N. Tenth, Suite B the prior appointments of a criminal district attorney pro ternwho was
McAHen, TX. 76501 appointed on a continuing basis by the judges of that county in
5121662.4547
accordance with article 2.07, Texas Code of Criminal Procedure. The
elected criminal district attorney is under suspension while appealing
200 Main Plaza, Suite 400 his disbarment.
San Antonio, TX. 76205
512/225-4191 The appointment of a prosecutor pro tern was initially made in
1980. The same person was reappointed on August 24, 1981, by order
An Equal Opportunity/
signed by the judges of all the county courts of law and district
Affirmative Action Employer courts for the county. Article 2.07 provides, in pertinent part:
(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 is no
attorney for the state, the judge of the court in
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Mr. Andy Shuval - Page 2 (Mw-404)
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.
Specifically, you inquire:
(1) Whether the governor may or should
appoint a prosecutor pro tempore on the effective
date of House Bill No. 649;
(2) Whether the judicial appointments of the
prosecutor pro tern are cancelled when House Bill
No. 649 becomes effective;
(3) Whether the judicial appointments of the
prosecutor pro tern are cancelled when the governor
appoints another prosecutor pro tempore;
(4) Whether the judicial appointments of the
prosecutor pro tern are cancelled when the removal
action against the current elected district
attorney is completed?
Article IV, section 12 of the Texas Constitution and article 328,
V.T.C.S., grant the governor power to appoint a district attorney when
a vacancy occurs. Thus, you wish to know whether House Bill No. 649
authorized the governor to appoint another prosecutor pro tempore to
replace the individual serving on September 1, 1981, the effective
date of the act.
Section 10 of article 332d, V.T.C.S., provides for the suspension
of a prosecuting attorney upon disbarment by a trial court and in
subsection (III) states that "[ulpon disqualification or suspension of a
prosecuting attorney, the duties of his office shall be performed by a
prosecuting attorney pro tempore as provided by this Act." Acts 1981,
67th Leg., ch. 709, §2, at 2651. The suspension of the elected
prosecutor does not create a vacancy in his office; it prevents him
from performing its duties pending final resolution of the disbarment
action.
Prior to September 1, 1981, section 10(m) of article 332d,
V.T.C.S., stated that "[ulpon disqualification of a prosecuting
attorney, the duties of his office shall be performed by a prosecuting
attorney pro ternas otherwise provided by law." Acts 1977, 65th Leg.,
ch. 345 at 917. (Emphasis added). In our opinion, this provision
referred to article 2.07 of the Code of Criminal Procedure. Thus, the
judge's appointment of a prosecutor pro tern was made pursuant to
section 10(m) of article 332d, as well as article 2.07.
The amendment to article 332d, V.T.C.S., which became effective
on September 1, 1981 protides that the governor shall appoint a
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Mr. Andy Shuval - Page 3 (Mw-404)
prosecutor v-0 tempore when the regular prosecutor has been
disqualified or suspended. Sets. 10(m), lOA( see also Tex. Const.
art. IV, §12; V.T.C.S. art. 328. The governor's power of appointment
under article 332d comes into effect only upon the occurrence of a
specific event -- the disqualification or suspension of the regular
prosecutor. In the present case, the significant event occurred prior
to the time the governor had the power to appoint a prosecutor pro
tempore. Thus, his appointment power could not have been brought into
existence at that time. We do not believe that the governor acquired
the power to replace the judicially appointed prosecutor pro tern on
September 1, 1981. A statute is held to operate prospectively only,
unless it clearly states a legislative intent to operate
retrospectively. See Freeman v. Terrell, 284 S.W. 946 (Tex. 1926).
Thus, the enactment of House Bill No. 649 does not terminate judicial
appointments of a prosecutor pro ternmade before the effective date of
the statute.
You specifically inquire when the judicial appointments of the
prosecutor pro tern terminate. In our opinion, they will terminate
when the suspension of the criminal district attorney is lifted, or
when the disbarment becomes final and the governor exercises his right
to fill the vacancy.
A prosecuting attorney is suspended when he is disbarred, whether
following trial or upon agreement, and a prosecutor pro tempore may
then be appointed. V.T.C.S. art. 332d, 810(d),(m). See Green V.
County Attorney of Anderson County, 592 S.W.Zd 69 (Tax.-". App. -
Tyler 1979, no writ). The prosecuting attorney is removed from office
upon final adjudication or conviction for any cause of action which
was the basis of his suspension. V.T.C.S. art. 332d, 510(e). A
"final conviction" is a judgment of conviction from which defendant
has exhausted his right to appeal. Adams V. State, 125 S.W.2d 583
(Tex. Crim. App. 1939); Allen V. Texas Department of Public Safety,
411 S.W.2d 644 (Tex. Civ. App. - Texarkana 1966, no writ). In our
opinion, "final adjudication" of a disbarment action also occurs when
the defendant has exhausted his right to appeal. Any other
construction would render meaningless the provision for suspension of
a prosecutor following disbarment rather than outright removal. But
cf. Oliphint V. Christy, 299 S.W.2d 933 (Tex. 1957) ("final
adjudication" in article 7.14, section 23 of the Election Code means
determination by judge on competent evidence). Although the court in
Phagan v. State, 510 S.W.Zd 655 (Tex. Civ. App. - Fort Worth 1974,
writ ref'd n.r.e.), held that a district attorney vacated his office
upon the trial court's judgment of disbarment, that determination
predated the enactment of article 332d. Acts 1977, 65th Leg., ch.
345, at 917. Procedures governing removal proceedings are established
by statute. -See Sullivan V. Berliner, 568 S.W.2d 844 (Tex. 1978).
Thus, under article 332d, V.T.C.S., the prosecutor's office is vacated
by disbarment only upon final adjudication of disbarment.
If the highest court to which the disbarment is appealed
overturns it, the district attorney's suspension from office is
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Mr. Andy Shuval - Page 4 (MW-404)
lifted. V.T.C.S. art. 332d, 510(m), Acts 1981, 67th Leg., ch. 709,
42, at 2651. If the court upholds the disbarment, he is removed from
office. The governor is then entitled to appoint a replacement for
the elected district attorney, to fill the vacancy created by his
removal. Tex. Const. art. IV, 512; V.T.C.S. art. 328. The governor's
appointment will continue only until the first general election
thereafter. T.3. Const. art. IV, 912. If the governor does not
exercise his power to appoint a successor immediately upon the
district attorney's removal, the judges of the district court retain
authority under article 2.07 of the Code of Criminal Procedure to
appoint a prosecutor pro tern "in any instance where there is no
attorney for the state." Under the facts presented, the prosecutor
pro tern appointed by the judges may serve until the governor exercises
his right to fill a vacancy created upon a final adjudication of
disbarment.
SUMMARY
The appointment of a prosecutor pro tern
pursuant to article 2.07 of the Code of Criminal
Procedure did not terminate as of September 1,
1981, the effective date of amendments to article
332d, V.T.C.S., by House Bill No. 649 of the
Sixty-seventh Legislature. This appointment will
terminate when the suspension against the district
attorney is lifted, or in case the district
attorney is permanently removed from office, when
the governor exercises his right to fill the
vacancy thereby created.
Very truly yours,
MARK WHITE
Attorney General of Texas
JOHN W. FAINTER, JR.
First Assistant Attorney General
RICHARD E. GRAY III
Executive Assistant Attorney General
Prepared by Joe Foy Jr. &
Susan L. Garrison
Assistant Attorneys General
APPROVED:
OPINION COMMITTEE
Susan L. Garrison, Chairman
Joe Foy Jr.
Rick Gilpin
Jim Moellinger
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