               THE    ATTORNEY       GENERAL
                         OF  TEXAS


                         June 28, 1988




Honorable   Tim Rudolph         Opinion No.    JM-925
Somervell   County Attorney
P. 0. BOX   647                 Re: Powers and duties of a
Meridian,   Texas 76665         county attorney pro tern under
                                article 2.07 of the Code of
                                Criminal Procedure  (RQ-1355)

Dear Mr. Rudolph:

     You advise that you are currently the county attorney
of Somervell  County.    The office of county attorney   of
Bosgue County is Vacant. The two counties have entered into
an agreement  pursuant   to section 2.07 of the Code of
Criminal Procedure1   as amended by the 70th Legislature



     1. Section 2.07 of the Code of Criminal Procedure  was
amended by amending subsection   (b) and adding subsection
(b-l) by Acts 1987, 70th Leg., ch. 918, section 2, at 6239,
effective August 31, 1987 to read as ,follows:

           '(a) Whenever an attorney for the state is
        disqualified to act in any case or proceed-
        ing, 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 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) Extent as otherwise nrovided bv this
        subsection, 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
                                         (Footnote Continued)




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Honorable Tim Rudolph - Page 2   (JM-925)




whereby Bosgue County will compensate Somervell County  for
your performing the functions of county attorney for Bosgue
County.
     You advise that the agreement between the two counties
has prompted   the questions you have submitted.   You have
furnished this office with copies of the agreement and an
information   signed by you that are relevant      to  your
questions.   You ask:

           1. Do    we need an information signed  in
        order to    prosecute,  or does article 2.05,
        Code of     Criminal Procedure,  allow us to
        prosecute   on complaint only?

           2. who is authorized    to sign the in-
        formation if one is needed? Article 21.21 of
        the Code of Criminal Procedure states that


(Footnote Continued)
        additional   compensation.   Nothing   herein
        shall vrevent   a commissioners  court of a
        countv    from   contractina  with    another
        commissioners   court to vav exvenses     and
        reimburse comvensation vaid bv a countv to an
        attornev for the state who is avvointed    to
        perform additional duties.

           (b-l) An attornev   for the state who   is
        not disoualified to act mav recuest the court
        to vermit him to recuse himself in a case for
        aood cause and uvon avvroval bv the court  is
        discualified.

            (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. He shall receive
        compensation in the same amount and manner as
        an
        indi;:;;r;z;sonappointed  to    represent  an


           (d) In this article, 'attorney for the
        statet means a county attorney, a district
        attorney, or a criminal district  attorney.
        (Emphasis added to reflect changes made by
        amendment.)




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Honorable Tim Rudolph - Page 3   (JM-925)




        the charging instrument must be signed by the
        county or district attorney. May I sign as a
        county attorney pro tern provided I list the
        authority by which I sign?

           3. If a county attorney pro tern cannot
        sign an information and if an information   is
        needed to    prosecute,  can   the   district
        attorney sign it?   If the district  attorney
        does sign the information, who can prosecute?

           4. If the district attorney is willing to
        act as a prosecuting     attorney in county
        court, does this pre-empt the authority   of
        the county attorney pro tern?

           5. Does the Judge under article 2.07 of
        the Code of Criminal Procedure need to enter
        an order of appointment in each case or is
        the agreement at enclosure no. 1 sufficient
        for all cases?

           6. If the agreement is sufficient for all
        cases, should it be renewed at each term of
        court?

     Your first question appears to relate to the provision
in article 2.05 of the Code of Criminal Procedure permitting
the trial of misdemeanors upon complaint in counties  having
no county attorney.     Article 2.05 provides  in pertinent
part, as follows:
           If the offense be a misdemeanor,       the
        attorney shall forthwith prepare an informa-
        tion based upon such complaint and file the
        same in the court having jurisdiction;   pro-
        vided, that in counties havina no countv
        attornev. misdemeanor cases mav be tried unon
        comnlaint   alone.   without   an    informa-
        -.
        tion   . . . (Emphasis added.)

      The answer to your inquiry as to whether       a county
attorney pro tern may prosecute upon complaint in instances
where an information is normally required turns on whether
the county is considered as "having no county attorney."    An
opinion in an 1872 Texas Supreme Court case, State v.
Lackey, 35 Tex. 357, held that an attorney pro tern has all
the powers and duties of the regular prosecuting     attorney.
This holding appears to be consistent with the definition of
@'pro tern" and the language of the statute providing that the




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Honorable Tim Rudolph - Page 4   (JM-925)




appointed attorney "perform the duties of the office during
the absence or disqualification for the state."   Black's Law
Dictionary 1101 (5th ed. 1979) defines pro tern, as follows:

        Abbreviation for 'pro ternpore' which means,
        literally, for the time being. Hence,     one
        who acts as a substitute on a temporary basis
        is said~to serve pro tern.

     The foregoing definition      provides   a common thread
running through the cases,   see,  m,     Scherff  v. Missouri
Pac. Rv. Co., 17 S.W. 39 (1891), addressing the matter of an
official who serves on a pro tern basis.    It appears that the
only limitation   on the powers and duties        of a county
attorney pro tern as contrasted   with an attorney who serves
for a term is that the pro tern acts only "for the time
being.'* While the pro tern acts as the county attorney he is
required to fulfill the responsibilities      imposed upon the
county attorney.   Thus, the county attorney pro tern is not
relieved of the responsibility of filing an information
merely because his time of service in such position may be
somewhat more limited than that of a county attorney        who
serves for a term.

     You ask who is authorized      to sign the information.
Article 21.21 of the 'Code of     Criminal  Procedure  provides
that the information l'must be signed      by the  district   or
county attorney,    officially.1V   The information    must be
signed by the attorney and show on its face the authority
under which the attorney acts. Flores v. State, 264 S.W.2d
952 (Tex. Crim. App. 1954). The amendment to section         (b)
allows the commissioners court of Bosgue County to reimburse
Somervell County.   It does not abrogate the requirement      of
section (a) that the judge in any case or proceeding          in
which you represent   the state appoint you to perform      the
duties of county attorney.   The information should be signed
by you as county attorney pro tern and reflect the fact that
the judge presiding    in that court has appointed      you to
represent the state.

     Your third guestion.is rendered moot by our conclusion
that the county attorney pro tern may sign the information.

     Your fourth question   is predicated  upon the district
attorney being  "willing to act as prosecuting       attorney
in county court."   You ask whether    the authority  of the
county attorney pro tern is preempted under this scenario.

     Article  2.01 of the      Code of Criminal    Procedure
delineates the responsibilities of the district attorney   in



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Honorable Tim Rudolph - Page 5 (JM-925)




representing the state.   Article 2.01 provides in   pertinent
part 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.

     Article 2.02 of the Code of Criminal Procedure        sets
forth the duties of county attorneys, as follows:

           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 pro-
        secuted which are appealed.

     The fact that the district attorney may be willing
to perform any duty imposed upon the county attorney by
article 2.02 does not preempt the authority of the county
attorney pro tern.

     You ask if it is necessary for the judge to enter an
order of appointment  for each case.   The contract  entered
into by the counties provides that you perform the duties
ordinarily associated with the office of county attorney  in
Bosgue County and that such agreement exist until terminated
by any party to the contract. Article 2.07(a) provides that
"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
office during the absence. . . .I' The judge presiding     in
the court in which you represent the state should enter an
order appointing you to represent the state in each case.




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Honorable Tim Rudolph - Page 6    (JM-925)




     In your final question you ask if it is necessary   for
the agreement between the counties to be renewed at each
term of court. Nothing    in article  2.07 places  any term
limitation upon an agreement between   counties.  Since the
contract authorized by article 2.07 is not limited to a term
of court it is not necessary for the agreement to be renewed
at each term.

                        SUMMARY

           The county attorney      pro 'tern serving
        pursuant to an agreement      entered   into by
        Somervell and Bosgue Counties is not relieved
        of the requirement    to file an information
        because his time of service may be somewhat
        more limited than that of the county attorney
        who serves for a term. A county attorney pro
        tern may sign an information.   The information
        must reflect on its face the authority     under
        which the county attorney pro tern serves.
        The fact that the district     attorney may be
        willing to perform any duty imposed upon the
        county attorney by article      2.02 does not
        preempt any authority of the county attorney
        pro tern. The judge in the court in which the
        county attorney pro tern represents the state
        should enter an order in each case appointing
        him to represent     the state.     It is not
        necessary for the commissioners       courts  of
        Somervell and Bosgue Counties to renew the




                                   J-/h
        contract at each term of court.~

                                      Very truly yo   : ,
                                            .


                                      JIM     MATTOX
                                      Attorney General of Texas

MARY KELLER
First Assistant Attorney General

LOUMCCREARY
Executive Assistant Attorney General

JUDGE ZOLLIE STEAELEY
Special Assistant Attorney General




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Honorable Tim Rudolph - Page 7    (JM-925)




RICK GILPIN
Chairman, Opinion Committee

Prepared by Tom G. Davis
Assistant Attorney General




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