Untitled Texas Attorney General Opinion ( 1942 )

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GERALD C. MANN Aun.vcarv
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Honorable R* E. Bibb
County Judge
Maverick County
Eagle Pass, Texas
Dear Sir: Opinion No. O-4979
Re: vvhere a duly elected and
qualified county attorney
has been inducted into the
Armed Fcrces cf' the United
States and has taken no
steps to dischar;e the
duties of his office, what
can the commissioners'
court do relative to hav-
ing the duties cf county
attorney performed?
lie acknowledge receipt of your request for an opin-
icn on the above question, including a letter dated January
20, last, from Honorable David h. Hume, an attorney of your
city, who states he is writing same at your request, Under
the provisions of Article 4399 of the Revised Civil statutes
of Texas, this department is prohibited from rendering 1e;al
opinions to county judges, but, in view of the fact that
your county is without the services of the county attorney
at the present, we feel it not inappropriate to answer your
questions. vile
understand the facts relative to said matter
to be as follows:
Mr. Van Haile iicparland was i~nducted into the Armed
Forces of the United States in October of last year. At that
time he was county attorney of your county, was re-elected at
the November electicn, has duly qualified by taking the oath
of cffice and making bond, but he has not since returned and
has taken no steps relative tc discharging his duties.
In our Opinion No. O-3448, a copy of which is at-
tached hereto, this department held that the office of county
attorney did not become vacant upon the induction of the
_’
.
Honorable R. E. Bibb, page 2 O-4979
incumbent into the Army. We also held that such officer was
entitled to his salary during the term of his office, or until
a vacancy was established.
Article 331, Revised Civil Statutes, provides that
county attorneys, by consent of the commissioners' court shall
have power to appoint one or more assistants, and Article 3982
also deals with the appointment of such assistants, but it is
specifically provided in Article 3902 that the commissioners'
court shall not attempt to influence the appointment of any
person as an assjstant. Mr. McFarland being the present coun-
ty attorney of your county, the appointment of someone by the
commissioners' court to serve as county attorney could be
nothing more than the appointment of' an assistant, which is
clearly prohibited by the above statute. It is the opinion
of this department, therefore, that the commissioners' court
does not have authority to name another to act as county at-
torney during the time Mr. McFarland is in the Army.
In this connection we take occasion to say the whole
situation wculd be greatly clarified if the county attorney
would, with the approval of the commissioners' court of your
county, appoint an assistant, as has been done under the same
circumstances in several counties of this State.
We direct your attention to Article 334, Revised
statutes, which reads as fol$ows:
"The district and county attorneys, upon re-
quest, shall give an opinion or advice in writing
to any county or precinct officer of their dis-
trict or county, touching their official duties."
The above quoted statute makes it the duty of your
district attorney to advise your county and precinct officers
in writing about a11 matters touching their respective offi-
cial duties. We feel sure your district attorney will gladly
and ably perform that duty.
Article 339, Revised Statutes, reads as follows:
When it shall come to the knowledge. of any
district or county attorney that any officer in
hiss district or county entrusted with the collec-
tion or safe keeping of any public Parids is in any
manner whatsoever neglecting or abusj~n; the trust
confided in him, or in any way failing to dis-
charge his duties under the law, he shall institute
Honorable R. E. Bibb, page 3 O-4979
such proceedings as arc necessary to compel the
performance of such duties by such officer and to
preserve and protect the public interests."
Article 27, Code of Criminal Procedure, is as follows:
"It shall be the duty of the district or
county attorney to present by information to the
court hnving jurisdiction, any officer for neglect
or failure of any duty enjoined upon such officer,
when such neglect CL' :failure can be presentsd:by
information, whenever it snal! come to the knowl-
ed,ge of said attorney that there has been a neg-
lect cr failure of duty upon the part of said of-
ficer; and he shall bring to the notice of the
grand jury any act of violation of law or neglect
of failure of duty upon the part of any officer,
when such violation, neglect or failure are not
presented by information, and whenever the same
may come to his knowledge.'
The duties imposed by Article 339 pertain to civil
actions while Article 27 has reference to crimi~nal proceeding
which both county and district attorneys are required to inst-
tute when warranted by the facts,
With reference to other duties imposed and authority
conferred upon hat-h county and district attorneys, you atten-
tion is directed to Articles 28, 29, and 30 of the Code of
Criminal Procedure, which Articles read respectively as fol-
lows :
Article 28, "Upon complaint being made be-
fore a district or county attorney that sn offense
has been committed in his district or county, he
shall reduce the complaint to writing and cause
the same to be signed and sworn to by the com-
plainant, and it shall be duly attested by said
attorney."
Article 29, "If the offense be a misdemeancr,
the attorney shall forthwith prepare an informa-
tion based upon such complaint and file the same
in the cour~tbaaing jurisdiction. If the offense
be a felony, he shall forthwith f;ile the complaint
with a magistrate of the county.
.
Honorable R. E. Bibb, vge 4 O-4.979
Article 30. "For the purp ose mentioned in
the two preceding articles, district and county
attorneys are authorized to administer oaths."
We also call your ,attention to Article 31, Code of
Criminal Procedure, which reads as follows:
"'Whenever any district or conrmty attorney
fails to attend any term of the district, county
of justice's court, the judge of said court or
such justice may appoint some ccmpetent attorney
to perform the duties of such district or county
attorney,who shall be allowed the same compensa-
tion for his services as is allowed the district
attorney or county attorney. Said appointment
shall not extend beyond the term cf the court at
which it is made, and shall be vacated upon thf:
appearance of the district or county attorney.
Under said Article 31, a county attorney pro' ternmay
,not be appointed when.county or justice court is in vacatn.
Moore v. State, 119 S M(. 858.
.
A county attorney pro tern cannot be ap:.-tintedin term
time unless both the county and district Pttorney are absent.
This appears to be the eonstructicn placed upon this Article
by the courts. Daniels v. State, 77 S. liJ. 215'; Butler v.
State, 299 S' W. 420. As a matter of precaution, the order
of the court appointing a ccunty attorney pro tom should show
that neither the county attorney nor district attorney was
present. Such as appcintment may be made to represent the
State in all cases and matters coming before the court at the
term at which the appointment is made or in a particular case
only. The appointment cannot extend beyond the term, (State
v. Manlove, 33 Tex. 798) but if a county attorney pro tern is
appointed at one term cl? court to represent the St::Le ???-a
case, and qualif!~ed i~nder cud;‘:aspcintme?t, he may prosecute
the case7 at a subscquent~ t;r~ 8;~j.tho!~t
rc-appointment. Narnoch
V. StaLc, 7 Cr. 1~. 269. ,ihcn i;county attorney pro,tern is ap-
pointed, it appears that he must take the constitu,t?%al cath
of office as county attorney pro tern. Marnoch v. State, supra.
Such an attorney pro ternhas all the powers and duties of the
regular pr.osecuting attorney. State v. Lackey, 35 Tex. 357.
They are evidently authorized to prepare and take acknowledg-
ments to complaints, prepare and file informations. Article
30, c: c. P.
,
Honorable R. E. Bibb, page 5
Of course, no person should be appointed county at-
torney pro tern in a particular case where he is for my reason
disqualified to represent the State.
It will be noted that said Article 31 also applies
to justice courts, and what has heretofore been said with
reference to appointment of a county attorney pro tern by a
county judge applies to a justice of the peace. We think it
is also applicable to any judge who sits as an examining
court o Article8 246, et seq, c. c. UP,
A complaint may be acknowledged before a justice
of the peace or any other officer authorized by law to take
or administer oaths. Articles 8@ and 883, C, Co P,
The statute (Article 28, C, C. P.) provides that
upon a complaint being,made before a district or county at-
tornex that an offense has been committed in his districtor
county, he shall reduce the complaint ti writing and cause
the same to be signed and sworn to by the complainant, and
it shall be duly attested by him and the succeeding Article
requires him, if the offense be a misdemeanor, to prepare an
information based thereon and file the same in the court hav-
ing jurisdiction and, if a felony, he shall forthwith file
the ccmplaint with a magistrate of the county. In our opin-
icn, Article 28 is not exclusive as to who shall preoare com-
plaints, and that where the county attorney is absent, the
complaint may be prepared by a justice of the peace or any
other officer or person, but, of course, the complaint must
be sworn to by the complainant before some officer authorized
to administer oaths, If the complaint charges a misdemeanor
and the defendant is to be tried in the county court then an
information based upon said complaint must be filed in that
court. Where the county attorney is absent, the district at-
torney is authorized to prepare and file the information in
the county court, Cody v, State, 47 S,W, (2d) 297- In this
connection, we call your attention to the fact that when a
complaint is filed in the county court the information based
thereon may be filed at any time before,the offense is barred
by limitation, Roberson v. ;jtate, 17 Tex. Ct, App., 317, 319;
Gentry v0 State, 117 S. U. 696; Day v. State, 74 S, W, 6-19,
700. Therefore, the district attorney or the county attorney
ro tern will have an opportunity to file the information be-
F-ore the case is called for trial.
Honorahlt R. E. Bibb, page 6 O-4979
In Texas Jurisprudence, Volume 11, page 575, the
following rule is stated:
"The commissioners' court has power to em-
attorneys to assist the regularly constitut-
ea officers of the county in the prosecution of
its claims and suits, and to pay for such servi-
ces out of the county funds. It seems, however,
that the commissioners' court does not have the
power to deprive, the county attorney of his
rightful authority in this regard. Ths employ-
ment cf counsel is restricted to special cases
where the'semrices of an attorney are required;
nor has the court power to make an crder which
will warrant the payment of county money to an
nttorne a for services neither required nor per-
formed. S. ;W.413; Gibson
(Adams v. beagle??, 2.5'0
v. ~PV~S, 236 S.W. 202; Terre11 v. Greene, 31 S.W.
631; Grooms v. Atascosn County, (c)iv.App.) 32
S.W. 188).
It is our opinion that under the facts stated by
you and the above rules of law, the commissioners' court would
not have the authority to engage ccunsel to perform the duties
of county attorney of your county, but that it would have au-
thority to engage counsel tcm assist the ccunty attorney in the
performance of the duties referred to in Article 339, provided
it did not attempt to deprive the county attorney of his right-
ful authority in this regard. It would also have authority
to engage counsel to advise said court, as it has been held
that Article 334. was intended to impose a duty upon the coun-
ty and district attorneys, and not as a restriction upon the
commissioners' court in the employment of attorneys to advise
and render services to the county in important matters coming
before it for its consideration, Gibson, et al., v. Davis,
et al., 236 S.W. 202. Such coumsel ,:touldnot be required to
take the oath of office.
Trusting that this satisfactorily answers your in-
quiry, we we
Very truly yours
JWB:db--PAM
ATTORNEY GENERAL OF TEXAS
APPROVED FEB 24'1943
GROVER SELLERS BY Jas* ;v.Bassett
FIRST ASSISTANT Assistant
ATTORNEY GENERAL
APPROVED OPINION COMMITTEE
BY BWB, CHAIRMAN