Untitled Texas Attorney General Opinion ( 1944 )

I
OFFICE OF THE AllORNEY GENERAL OF TEXAS
AUSTIN
Roaorable W. 9. Barron, Judge
85th Judlaial Dlstriat
Bryan, Texas
Dear Sir:
Your letter of May 89 the opinion of
thie department on the quest in part, a8
:ollow~ :
n the follow-
ing matter: maa againat the
County Attorney y, before a regularly
organized Grand ary requested that I
to advise the Grand
I conaldered whether
etenta or appoint a
all the conditions to
mn County Bar ae County
Mr. John R. Grace 0r
lnted’to this place, nfter two
unty had refused assigning reasons
Graoe advised with the Grand Jury.
one ror bribery and the other theft.
:B dlmnlesed on the n&ion of the
Tern, and the Felony indictment went
to trial and consumed three daya and until mid-night
the third dey, when a Jury returned a terdlct of not
guilty.
wPleaae inform me ae tollowe:
“1. Doea Robertson Count7 have the authority to
Pay the County Attorney Pro Tern for hia. aerviaeal
“(a) Xi ao should a reasonable fee bb ,ilxed by
me and aertlfied to the Comalsalonsr~r Court, or
Honorable W. S. Barroll, page a
553
*(b)
Should an amount
be determined based on
the time given by tb Pm Tern In ths proparatlon
and trial of the oass. That 18, ii two week8 wera
oonaumad should It be an amount 8qual to one-half
oi a month’s salary paid the County Attorney. ***”
Am YOU kSOW, Of OOUBO, Art1010 4399, ~OIpILo~‘8hIIOta-
ted Ciril Statute8, doe8 not authorize thir department to render
nitton opinion for the Dlstriot Judge8 of this Statei however,
under the partloular olroumstanorr and raOt8, we maim an uoep-
tion in thir ill8taJlOIr A8 wo underrtand your rrqurrt, thr
County Attornoy was undrr lndlotmsnt by the Grand Jury of Robert-
aon County, and 8aId oounty doer not ha?8 a Dlstrlot Attorney.
Thsrerors, a8 heretororo otated, ws makr an sxoeptlon In answer-
ing your r8que8t.
Artlols 31, Vernon’8 Annatated Codr ot CrIainal FToosdure,
prorldes 1
‘Whsnevsr sny
dletriot or county attOrn rail8
to attend any term of the Diatriot, County or Justiar
Court, the Judg8 ot said Court or sush Justlor may ap-
pofnt 8oae oonpetrnt attorney to perform the dutier
or ruoh Dietriot or County Attorney, who shall be al-
lowed the same oompansation for his serrloes as 18 al-
lowed tha DIstrIot Attorney or County Attorney. Said
appolntnmnt shall not oxtend beyond the term of the
oourt at whloh it is madr, and ohall br taoated upon
th8 appearanor of ths Dlstrlot or County Attorneg,m
Artiole 3i3;. Vernon’8 Annotated Code oi CrImlnal Rooaduro,
reads as fOllOW8:
wDIatriot md oounty attorney8 shall not bs oi
oounsel adversely to the Stats in any sass, in any
oourt, nor shall they, after odes8 to b8 suoh otrioers,
be of oounsel advsraely to the State in any oaae In
whioh th8y haV8 been ot oounasl for the Stats,”
.r
r.
;:
1. 560
Honorable iY. 2. Barron, page 2
Bxeroislng hi8 statutory power, the Judge or Juatlae
may appoint any oompetent attorney or a8mber or the Bar to per-
r0r0 the dutier or District Attorney or County Attorney. Thla
power may be properly 8xeroised when there 8xIstr a vaoanoy In
the 0rri06 0r the District or County Attorney, where th8 Dlstrlot
or County Attorney is tmporarily dirrablrd to aot, or in shy par-
tIoular ease where there aay l Xi8t 8pOOIal r4a10118 why the Distriot
or County Attorney should not sot, It has baa held that a oompet-
ent attorney may be appoint46 to aot on behalf of the State or
a8 ah assistant 0r the State.8 04``841, in a runmary DrooedIning
for the removal of a osunty attorney or other .oounty oflioer. (Sea
*ia ?* Stat., 49 Ter. 645) B-&t vm State, 29 Tuar, 902; State
Y* &nZal48, 26 lb, 1998 Daniel8 v. State, 99 S. W. 216)
A8 the County Attorney was under IndIot&t by the Grand
Jury, he oould not repreeent the State in suoh prooeedinep, and a8
there wa8 no D1strIot .Attorney In ,aaId County to perform suah du-
tier, it Is olear that the Dirtriot Judge had authority to appoint
a oounty attorney pro +a~ to perform ouoh servioes.
We hata oareiully oonsldered th8 ease Uf~Voges v. Shepherd,
69 9. W. (Zid) 8&l, In oonneotlon with the questions under oonsldera-
tion and bsll~ve that this oase has no applioation to the question8
Presented.
We do not believe that Artiole 26, Vernonte Annotated Code
oi Criminal Rooedure, has any applioation to the questions under
Consideration, but that thr question8 presented In your Inquiry, are
6overned by the foreSoIng ltatuta8 and authorities. Artlole 31, supra,
4Ipresely provid88 that wherr a Oompetent attorney performs the duties
ot oounty attorney, suah attorney shall be allowed the ssme oompensa-
tion for his SeIvIOO8 as allowed to the oouuty attorney. The oounty
OtiIoials oil Robertson Oounty are compensated on aa annual salary
baris and the oounty pays the’ salaries of suoh ofiioia,)r. Therefore,
*e respeottully answer your rirst question In the afi:rmatlve.
We now ooneldrr your seoond and third questions. Although
etiole 31, supra, does not 8peoIfioally provide that the 8alary of
the oounty attorney pro ten shall be dstermlned by the number of days
he serves, we believe that the most praotloable way of oalaulatIn2
us oompensatlon Is to divide the annual salary of the oounty attor-
.’
5611
fbnorable W, 9. Barron, page 4
nay by three hundred and sixty-five and multiply the WOtl4nt by
the number of days aotually served by suoh county attornry Pro t4&
It ir noted that you state the oounty attorney served three days
in the aotual trial of the saae. It la not stated how much time
the oountg attorney pro tea rened with the Grand Jury Inveatiga-
ting the aasa involved. It is our opinion that the oounty attorney
pro tam la entitled to oompensatlon~ iron the county npoa the baa18
heretoron rtated for all the tine he served a8 oounty attorney ~0
tom before the Grand Jury and for the tIne aotually ongaged in the
trial or the oases It Is our further opinion that the oounty
attorney pro tern would not be entitled to any ooapensation for the
tfae rpent in the preparation oi the ease. In other worda, all
the oompenration to whioh he would be entitled would be ror the time
apent with the Grand Jmy and ror the time spent In the aotual trial
or th4 oase.
Wa believe that what has been said heretotore answers both
your aeoond and third question; therefore, It is unnecessary to dls-
0~88 ruoh que8tIona rurther.
Yours very truly
ATTCRNBY
GENHUL OF TEXAS
/-&4L?edL
BY
Ardell William8
Assistant