                                         July 27,    1973


 The Honorable   Timothy D. Eyssen                          Opinion    No.   H- 72
 County Attorney
 Wichita Falls,  Texas 76301                                Re:   Interpretation of Arti-
                                                                  cles 2.01 and 2.07,   Code
                                                                  of Criminal Pr,ocedure
                                                                  RQ 246
 The Honorable Robert       S. Calvert
~‘Comptroller   of Public   Accounts                              Reduction of salary for
 Austin,   Texas 78744                                            the District Attorney
                                                                  of the 30th Judicial District
 Gentlemen:                                                       RQ 246A

        Each of you have submitted         a question       to us growing     out,f:   t&e
 same   basic ‘fact situation.

        At soni8 time prior to May of 1973, Jimmy                 R.   Phagan was elected
 District Attorney of Wichita County, Texas.

        On May 11, 1973, Cause No. 93,47Oa,        styled The State of Texas
 v. Jimmy R. Phagan, in the 30th District Court of Wichita County,
 Texas,   commenced     to trial resulting in a verdict of the jury finding,
 in the words of the judgment,      that, “The Defendant,  Jimmy R. Phagan,
 is guilty of a series of woeful, illegal acts amounting to professional
 misconduct,    any one of which acts would justify and warrant the disbar-
 ment of the defendant from the further practice of law. ” It is our under-
 standing that the acts did not, however,      involve Mr, Phagan’s perform-
 ance of his duties as District Attorney.       The judgment of the court entered
 on that date was that Jimmy R. Phagan be disbarred as an attorney-at-law
 and may thereafter    exercise   none of the privileges  and prerogatives   of the
 office of an attorney-at-law.

       On the 11th day of June, 1973, the three judges of the District Courts
 of Wichita County signed what is denominated~.an Order Appointing a Dis-




                                          p.   315
The Honorable   Timothy D. Eyssen
The Honorable   Robert S. Calvert,       page 2   (H-72)



trict Attorney Pro Tern.     It recites that “on the 11th day of June, 1973,
the district attorney of the 30th Judicial District failed to attend court
and represent the state in various criminal prosecutions       . . . .‘I It
ordered,    ostensibly under the authority of Article   2.07 of the Code of
Criminal Procedure,     that WilIiamV.    Browning be appointed District
Attorney pro tern of the 30th Judicial District.     “This appointment
shall not extend beyond the present term of the district courts of With-
ita County. I’

       Mr. Phagan filed on the same date his “motion excepting to court
order” asserting    that he had not failed to attend any term of court and
for the .further reason that he was not notified of the action prior to the
time it was signed.     He prayed that the filing of the~order be denied
until such time as a hearing could be.held to determine the truth of the
matters therein asserted.

       On June 15, 1973, ,Mr. Calveit, as Comptroller  of Public Accounts
of the State, requested our opinion as td whether his department would
have authority to withhold the salary of Mr. Phagan.

      On June 19, Mr.    Eyssen,   as County Attorney,     asked two questions:

                    “1. Would Judge Murray’s    ‘rendering judg-
             ment’ by the above referred to letter effectively
             ‘absent’ the district attorney under Article  2.02
             Code of Criminal Procedure;    and,if so,

                   “2. Do the duties of’the District Attorney
            in such a case autamatically   devolve to.the County
            Attorney until a permanent appointment by the Gov-
            ernor can be made, or do the District Judges have
            the power to appoint a District Attorney pro tern as
            they have done? ”

       We are advised that subsequently,    on June 29, 1973, an order en-
titled “Order Re-appointing   District Attorney Pro Tern” was entered by
which it was ordered that Mr. Browning be appointed as District Attorney
pro tern for the July term of the 30th District Court beginning on July 2,
1973.




                                    p.    316
The Honorable         Timothy D. Eyssen
The Honorable         Robert S. Calvert. page 3         (H-72)




    We understand that Mr. Phagan is appealing from the order of dis-
barment and that no proceeding  has been filed nor has there been any
hearing in any proceeding to remove him from office as the District
Attorney.

    Article    332,    V. T. C. S.,   enacted    in 1876,   reads:

             “No person who is not a duly licensed
        attorney at law shall be eligible to the office
        of district or county attorney.    District and
        county attorneys    shall reside in the district
        and county. respectively,     for which they were
        elected; and they shall, as soon as practicable
       .after their election and qualification,    notify
        the Attorney General and Comptroller        of their
        post office address. I’

     It is our opinion that the office of District Attorney is a constitutional
office created by Article .5, $ 21 of the Constitution [Moore v. State, 57 Tex.
307 (1882)].    Article  332 does no more than state qualifications  for election
to the office of District Attorney.    It does not provide for removal of a
District Attorney who creases to be “duly licensed. ”

    Removal     of District Attorneys       is governed      by 5 7 of Article     15 of the
Constitution    which says:

            “The Legislature   shall provide by law for
        the trial and removal from office of all off=6
        of this State, the modes for which have not been
        provided in this Constitution.

    There     is no other provision      in the Constitution         for removal   of District




                                            p.    317
The Honorable     Timothy D. Eyssen
The Honorable     Robert S. Calvert,     page 4   (H-72)



Attorneys.     As for County Attorneys     and other county officers,    see Arti-
cle 5, $ 24.

       The basic legislative   provisions  for removal of. officers are found
in Title 100 of the civil statutes commencing     with Article 5961.    The first
three statutes have to do with impeachment.       (Articles  5961 to 5963, Ver-
non’s Texas Civil Statutes).     Article  5964 has to do with the removal of
certain specified judges and other state officers by address.        Articles
5965 through 5966 have to do with removal of various judges by the Supreme
Court.

        Article 5966a creates the State Judicial Qualifications  Commission.
Article   5967 calls for removal of certain specified officers by the Cover-
nor.    Article 5968 provides. that convictions  for various crimes shall work
an immediate    removal.    Article  5969 provides that an appeal fromanorder
of removal supercedes     the judgment with some exceptions.

      We then come      to Article   5970 which provides,   in part:

                      “All district and county attorneys,     county
               judges . . . may be removed from office by the
               judge of the district court for, incompetency,     of-
               ficial misconduct     or beco~ming intoxicated bydrink-
               %ng ixitoticatirig ~liq~uor; as a beverage;. whether on
               duty or not; . . . .” (emphasis added)

      Article 5971 requires that in every case of removal named           in Article
5970 the cause shall be set forth in writing “and the truth of said        cause or
causes be found by a jury. ” Article    5972 as amended (A,cts 1971,       62nd Leg.,
p. 1110, Ch., 241) defines “incompetency”   as used in Article 5970       as follows:

                      “By ‘incompetency’    as used herein is meant
               gross ignorance of official duties, or gross care-
               lessness   in the discharge  of them; or an officer may
               be found to be incompetent when, by reason of some
               serious physical or mental defect, not existing at
               the time of his election,   he has become unfit or un-
               able to discharge    promptly and properly the duties
               of his office. ”




                                       pi 318
The Honorable      Timothy D. Eyssen
The Honorable      Robert S. Calvert. ,page 5            (H-72)



      Article     5973 defines     official   misconduct   as follows:

                       “By ‘official misconduct,    ’ as used herein with
                reference   to county officers,   is meant any unlawful
                behavior in relation to the duties of the office,    wil-
                ful in its character,   of any officer intrusted in any
                manner with the administration       of justice, or the
                execution of the law; and includes any wilful or cor-
                rupt failure,   refusal or neglect of an officer to per-
                form any duty enjoined on him by law. ”

      Article 5975 provides that officers who~‘are required to give official
bonds may be removed from office for failing to give them.

      Article     5976 provides:

                        “The proceedings     for the removal of said
                officers   may be commenced,        either in term time
                or vacation,   by first filing a petition in the district
                court of the countywhere       the officer resided,  by
                a citizen of the State who has resided for six months
                in the said county where he proposes to file such pe-
                tition, and who is not himself at the time under in-
                dictment in said county. ”        ;

        Article   5977 sets out the requisites   of the petition; Article 5978
 requires that the case be. submitted under a proper charge to a jury;
particle 5979 requires citation; Article      5980 provides for an answer;
Article   5981 provides how the trial shall,be conducted.        Article’ 5982
 provides that, after the issuance of the order for the citation required
 by Article    5979 the district judge may temporarily      suspend the person
 from office and appoint for the time being some other person to discharge
 the duties of the office.

        Article 5970, therefore,    governs the removal of district attorneys;
Article   332*does not. Also see Articles     5984, 5986. Because there has
been no removal proceeding       brought against Mr. Phagan in accordance        ’




                                              p.   319
The Honorable   Timothy D. Eyssen
The Honorable   Robert S. Calvert,    page 6    (H-72)



with the applicable   statutes,  he still is the District Attorney of the 30th
Judicial District of Wichita County, we think. Whether under the statutes
a cause exists for his removal is a question upon which we do not pass.
It is our opinion, however,     that until Mr. Phagan is removed from office
in accordance   with the statutory procedures,      he remains the District A,t-
torney.   Compare In re Laughlin,       265 S. W. 2d 805 (Tex. 1954); Gordon
v. State, 43 Tex. 330, 339 (1875).       It is our opinion furthermore  that the
order disbarring    Mr. Phagan is not sufficient by itself to warrant the ap-
pointment of somebody to replace him.

       The Code of ,Crimiual ~Procedure: in~its Chapter,‘2’~outlinesthe duties of
vaiious officers including district attorneys.   Sec. 2.07 as amended by
Acts 1973, 63rd Leg.,    ch. 154, p. 356, 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
             otherwise unable to pe~rform the duties of his
             office,, or in any instance where there is no at-
             torney 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. ”

       In subparagraphs  b and c it contemplates     that another attorney for
the state, defined as including county attorney,      district attorney, or ctiim;
inal district attorney, might be appointed.

       Article  2.02 provides, in part, that in the absence of the district
attorney,   the county attorney shall represent the state alone.

       Prior to the complete revision of the Code of Criminal Procedure
in 1965, Article  26 of the code contained essentially    the same provision
which we have quoted above from Article     2.02.    Article  31 contained the
same provisions    as are now contained in 2.07.    In Attorney General Opi-
nion No. O-2531(1940),   it was said:




                                     p.   320
The Honorable    Limothy D. Eyssen
The Honorable    Robert S. Calvert,       page 7 (H-72)


                     “Article   26 and Article    31 must be construed
             together,    and when so construed,      it is clear that
             the Legislature     has made it the duty, and it likewise
             the right, of the county attorney to represent the
             State in district court in the absence of the district
             attorney.     In the absence of the district attorney,
             the duty and the authority to represent the state in
             the district court is conferred by the statutes upon
             the county attorney,      and it is not contemplated,    nor
             is it necessary,     that the court should designate the
             county attorney as district attorney pro tern.         It is
             only when the district attorney and the county attor-
             ney are absent that the court is authorized to appoint
             a district attorney pro tern.. In a Letter Opinion ad-
             dressed to the Honorable Cullen D. Vance,           County
             Attorney,    Edna, Texas,     on February 12, 1935, this
             Department      ruled that a district judge is without
             authority to appoint an attorney pro tern to repre-
             sent the state when either the distritit attorney or
             the county attorney is present.         We are of the opinion
             that this ruling correctly      states the law upon this sub-
             ject. ”

        Where a statute has been administratively      construed for a long
time and the Legislature,   though presumably       aware of the interpreta-
tion,~ made no change that would indicate a contrary intent, the admin-
istrative  construction is entitled to great weight.     Burroughs v. Lyles,
181 S. W. 2d 570 (Tex. 1944); Heaton v.    Bristol,   ,317 S. W. 2d 86 (Tex.
Civ. App. , Waco, 1958, err. ref).    And see Calvert v. Kadane, 427 S. W.
2d 605 (Tex. 1968).

       It is our interpretation   of Articles  2.02 and 2.07,   Texas Code of
Criminal Procedure,       that they apply only in the event of a temporary
disqualification    as in one case or absence for a terminable     period of
time.    They do not apply to the removal of an officer and if the district
attorney is removed in accordance        with the Constitution and Title 100 of
the statutes,    the vacancy must be filled by the Governor in accordance
with $12 of Article 4 of the Constitution.

       Therefore, to answer Mr. Eyssen’s    questions,, we would state that,
provided the county attorney was available at all times (a fact question
which we do not answer),   Article 2.02 of the Code of Criminal Procedure




                                     p.    321
The Honorable   Timothy D. Eyssen
The Honorable   Robert S. Calvert,     page 8    (H-72)



did not authorize the district judges or any one of them to appoint a dis-
trict attorney pro tern and, further,   any temporary appointment made
pursuant to Article   2.07 could validly be made only for the period of ab-
sence or disqualification  and not for a term of court oi some other period.

       We answer Mr; Eyssen’s     second question that under Article     2.02
of the Code of Criminal Procedure,     if the district attorney is absent or
disqualified and the county attorney is available to serve,    the duties of
the district attorney devolve automatically    upon the county attorney.

       The Comptroller’s   question   involves   construction   of Article   327
of the Revised Civil Statutes:

                   “When any district attorney shall fail to
            attend any term of the distrfct court of any
            county in his district,   the district clerk of such
            county shall certify the fact of ‘such failure un-
            der his official seal to the Comptroller,     and
            unless some satisfactory     reason for such fail-
            ure his shown to the Comptroller,      such district
            attorney shall receive no salary for the time
            that he has.,60 failed/to attend. ”

The district clerk on June 11 did certify pursuant to that article.that Mr.
Phagan “has failed to attend Court and represent the State of Texas in
various criminal prosecutions     now pending in the District Courts of
Wichita County, Texas. ” Mr. Phagan has responded by a letter denying
that he had failed to attend any term of the court up to the date thereof,
June 18. We have heretofore     cited that letter. .

       We believe it is up to the Comptroller    to determine the facts under
a procedure according     Mr. Phagan.due process,      i.e., he should have
notice and an opportunity to present evidence to confront the district clerk.
Should the Comptroller,    after such a hearing,    determine that the district
attorney had failed to attend any term of court without a satisfactory      rea-
son for such faailure, then the Comptroller     would have authority to withhold
the salary of the district attorney for the time he has failed to attend but
not for any other period,    unless, of course,   he is removed from office.




                                      p.   322
The Honorable   Timothy D. Eyssen
The Honorable   Robert S. Calve&     page 9    (H-72)



                               SUMMARY

                  A District A,ttorney is subject to removal from
           office only pursuant to the statutes for     removal and
           may not be summarily      removed and replaced by an
           ex parte order of the district courts.    If he is tempo-
           rarily disqualified  or absent and there is a qualified
           County Attorney in the county, then the County Attor-
           ney shall serve as District Attorney under A,rticle
           2.02 of the Code of Criminal Procedure.        If he is
           permanently    removed,   then any replacement     is to be
           appointed by the Governor.

                   If the District Attorney absents himself without
           satisfactory    reason,  a fact to be’determined  ~by the
           Comptroller     under due process,     then the Comptroller
           shall withhold his pay for the pekiod of time of his ab-
           sence.




DAVID M. KENDALL,       Chairman
Opinion Committee




                                    p.   323
