                      The Attorney General of Texas
                                          November     9,    1979
MARK WHITE
Attorney General


                   Honorable Rene A. Guerra                   Opinion No. MN- 8 0
                   Criminal District Attorney Pro Tern
                   Hidalgo County Courthouse                  Re: Compensation of the District
                   Edinburg, Texas 78539                      Attorney Pro Tern of Hidelgo
                                                              County.

                   Dear Mr. Guerra:

                          You inform us that you have been appointed to be district attorney pro
                   tern for Hidalgo County pursuant to article 2.07 of the Code of Criminal
                   Procedure.      At the time of your appointment you were an amistant district
                   attorney for Hidalgo County. You are presently receiving the same salary
                   you earned as assistant district attorney and wish to know what compensa-
                   tion, if any, you should receive as district attorney pro tern. The situation
                   arose when the district attorney was disqualified and your question involves
                   the salary paid the district          attorney pro tern during the period of
                   disqualification.    -See V.T.C.S. art. 332d, S 10.
                         Article 2.07 of the Code of Criminal Procedure provides as follows:

                                 (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 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) If the appointed attorney is also en attorney for
                               the state, the duties of the appointed office are
                               additional duties of his present office, and he is not
                               entitled to additional compensation.

                                  (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




                                                  P.   243
Honorable Rene A. Guerra      -   Page Two        (RW-80)



           clerk of the court.     He shell receive compensation in the same
           amount and manner       as an attorney appointed to represent   an
           indigent person.

               (d) In this article,    ‘attorney for the state’ means a county
            attorney, a district attorney, or a criminal district attorney.

        An attorney for the state who is appointed district attorney pro tern is not entitled
to additional compensation.    Sec. (b). “Attorney for the state” is defined in section (dl as
“a county attorney, a district attorney, or a criminal district attorney.” We do not believe
an assistant district attorney is an attorney for the state within the meaning of section
2.07. Other statutes distinguish between the district attorney and his assistants.           The
district attorney is an elected official.      V.T.C.S. art. 326k-1, S 1. The assistant district
attorney is appointed by and subject to removal by the district attorney.          V.T.C.S. art.
332a, SS 1 - 4. The definition of “attorney for the state” applies to all of article 2.07 of
the Code of Criminal Procedure.         If “attorney for the state” included assistants, then
article 2.07 would permit the court to appoint an assistant district attorney pro tern. The
Court of Criminal Appeals has, however, stated that the predecessor of article 2.07 did
not authorize the judge to appoint an assistant district attorney. Locklin v. State, 75 S.W.
 305 (Tex. Crim. App. 1903). Construing article 2.07 to authorize the appointment of an
assistant district attorney would also bring it into conflict with article 332a, V.T.C.S.,
 which permits the prosecuting attorney to choose his own assistants.         We conclude that
you should be compensated for your work as district attorney pro tern as provided in
article 2.07(c).

      You next ask whether the State of Texas or Hidalgo County is responsible for paying
your compensation as district attorney pro tern. Article 2.07 of the Code of Criminal
Procedure provides for “compensation in the same amount and manner as an attorney
appointed to represent an indigent person.”     Article 26.05 of the Code of Criminal
Procedure provides in part:

                Section 1. A counsel appointed to &fend a person accused of a
             felony or a misdemeanor        punishable by imprisonment,     or to
             represent an indigent in a habeas corpus hearing, shall be paid from
            the general fund of the county in which the prosecution           was
             instituted cr habeas corpus hearing held, according to the following
             schedule:
                (a) For each day or a fractional         part thereof    in court
             representing the accused, a reasonable fee to be set by the court
             but in no event to be less than $50.. . .

Other sections provide minimum fees for each day in court         on specific kinds of suits and
for prosecuting appeals. The statute requires the court to       set a reasonable fee above a
stated minimum, to be paid from the county general fund.        -See Attorney General Opinion
H-544 (19751.




                                             P.     244
Honorable Rene A. Guerra         -     Page Three          (Mw-So)



      Article 332b-1, V.T.C.S., governs the payment of the criminal district attorney     in
Hidalgo County.    It lists a number of counties, including Hidaigo, and then states      as
follows:

           in ail of which counties there is either the office of criminal
           district attorney or the office of county attorney performing the
           duties of a district attorney, the official performing such services
           shall be compensated for hi services by the State. . . .

V.T.C.S. art. 332~1 (emphasis added). In our opinion, the underlined language refers to
either the criminal district attorney or the county attorney who performs his duties. It
does not require the state to compensate other persons who perform the duties of a
district attorney such as a district attorney pro tern, or an assistant district attorney who
is authorized “to perform all duties imposed by law on the prosecuting attorney.” V.T.C.S.
art. 332a, S 3.

                                               SUMMARY

            An assistant district attorney who is appointed district attorney pro
            tern should be compensated for his work in that capacity pursuant
            to article 2.07(c) and 26.05 of the Code of Criminal Procedure. His
            compensation comes from the county general fund.

                                                &*



                                                          Attorney   General of Texas

JOHN W. FAINTER, JR.
First Assistant Attorney General

TED L. HARTLEY
Executive Assistant   Attorney       General

 Prepared by Susan Garrison
 Assistant Attorney General

 APPROVED:
 OPINION COMMITTEE

 C. Robert Heath, Chairman
 Jim Allison
 David B. Brooks
 Walter Davis
 Susan Garrison
 Rick Gilpin
 William G Reid



                                                     P.    245
