                                 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




                                                          p. 1371
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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