                                                  R-555




Hon. W. C. Hancock.           a-
                             Opinion No. V-272
County Attorney,  *
Camp County,                 He: Compensationof Coun-
Eittsburg,Texas                  ty Attorney when as-
                                 sisting the District
                                 Attorney in the prose-
                                 cution of case8 in the
Dear Sir:                        District Court,.
            We refer to your~letterof June 4, 1947,
which reads in part as follows:
           "Artiols 26 of the Cede of Criminal
     Frooedure provides, $&spart: 'The County
     Attorne &all attend the terms of all
     courts f n hie county below the grade of
     District Court, and shall represent the
     State in all criminal oases under o&d
     nation for pxosooution in mold oounty and
     in the absence of the District Attorney
     he shall represent the State alone, or
     when requested shall aid the District At-
     torney in the prosecution of any case in
     behalf of the State in the District Court,
     and in such cases he shall receive all or
     one-half of the fees allowed by law to
     Distriot Attorneys, aooording as he acted
     alone &r c)*lntly:'
           mIhasmuch as the dietriot attorney
     in this district does not receive fees
     and instead is paid a salary I would like
     to know whether or not I could bo requuired,
     as county attorney, to assist in tha press-
     cution of cases in the district court, aha
     if so what compensationI would be entitled
     to receive therefor."
            The 76th Judicial Distriot oonsietr of-,
following counties: Titus, Franklin, Camp, Morris, and
Marion, There is a duly'elected,qualified,and acting
District Attorney in said District.
Hona W, C. Hancock - Page 2


            The remainder of Article 26, C. C. P., not
quoted by you, reads as follows:
     n    e In such oases he shall receive all
     0; &e-half of the fees allowed by law to
     the district attorney whose duties he per-
     forms, or assists in parforming,but shall
     receive no part of the constitutionalsah
     ary allowed to such district attorneyiac-
     cording aa he acted alone or jointly; pro-
     vided that fees 00u0Ot0a by the oounty
     attarmsy from the State for such services
     shall be deducted by the Comptrolleror
     Public Accounts from the fees which other-
     wise would have been paid to the district
     attorney had he represented the Stata a-
     long; provided further this articla shall
     not be construedas inhibiting any county
     attorney from voluntarilyiwith the oon-
     srnt of the district attorneys,assisting
     the district attornay in.the performance
     of hisrespective duties, without oompen-
     aatian."
            Section 21 or &tic10 V of the State Consti-
tution is in'part as follows;
           1)
            . . ,The county attorneys shall rep-
     resent the State in all oama in the dis-
     trict and infrrior oourts in their rrspeo-
     tive counties; but if~any county shall be
     included in a district~inwhich there shall
     be a distritt attorney) the respeotivedu-
     ties of district attcmeys and oounty.attor-
     neye shall in such counties be regulatedby
     the Legislaturr, The Legislaturamay pro-
     vida for the election of distriot attorneys
     in such districta,as may be deemed neoes-
           and make provisions for the compensa-
     t?Z'of district attorneys and county at-
     torasys; provided, aistrici attorneys shall
     reoeive an annual aalary of five hundred
     dollars, to be paid by the Btate, and suoh
     rees, commissionsand parquisitesas ma be
     provided by law* County attornays shal9 re-
     oeive as compensationonly such faas, oom-
     fya;&-zi and perquisitas as may ba prescribed
Hon. VI.C, tfancock- Page 3


             In the case of Voges vr Sheppard, 123 TexL
96, 67 S. Xi. 2d 856, under similar faots as involved
here, the Commission of Appeals had this to say:
            “It is at once apparent that a pur-
      pose of Artiole 1025 was to respond to
      the call of Article 26 for compensation
      to the county attorney for the services
      prescribed by the latter statute as a
      subject for aompeneation. There is lit-
      tle doubt that in naming that officer,
      along with the district attorney, as a
      beneficiary of tke fees prescribed in
      ::rticle1::25,thr Ugislature haa in im-
      mediate contemolationthe orovisions of
      the other artic1.eregarding the compen-
      sation sf the county attorney in felony
      trials:,ai.:i
                  \;l-.ich,
                         in express terms
      limit such compensationto ‘fees al ow-
      ea by law to 'lstrictat%orney5.vIt is
      thus seen that the ri?ht of the relator
      to fees in cases of felony conviction,
      as prescribe& in Article 1025, depends
      on whether such fees are allowed to the
      district attorney of the district which
      embrroos Wilson County. That said ais-
      trict attorney is not allowed said fees
      is plainly disclosed by the provisions
      of Article 1021; for the last-armed ar-
      ticle provicies,in substance,that a
      district attorney, in a district com-
      posed of two or more counties, shall re-
      ceive a per diem compensation,depend-
      ing upon his attendanceupon the sessirn
      of the court in the necessary performancs
      of his 0Pf10i81 duty. c *” (Emphasis
      added)
              The Court thereupon held that a county attrr-
aey was not entitled to a r?anaamus  against the Comptrol-
ler to compel him to issue a warrant in favor of the coun-
ty attorney for servioes performed at the request of the
district attmsny in assisting him la felony oases, and
for representingthe State in habeas corpus oases involv-
ing felrnies.
           Therefore, in view of Article 26 supra, you
are respectfullyadvised that it is tke opinion of this
                                                            .

Hon. 5'1.
        C. Hancock - Page 4


Department that the County httormey of Camp County is
required to asaiat in the proseoutionof cases in the
District Court, when request& by the District Attorney;
and rurther, since District Attorneys are no leyer barn-
pensated on a fee basis.,bgt by the payment of an annual
salary, and the Legielaturehas made 50 provision for
compensatingthe County Attorney who assists  the District
Attorney in the proeseutlonbf cases in the DistrictCourt
by apportioningto him a.part of the salary to be paid
to the Distriot Attorney, it follows that the County At-
torney is not entitled to compensationror such services
rendered.


           The County Attorney of Camp County is
     required to assist the District Attorney in
     the prosecutionof cases in the District
     Courtwhen requested, and further the County
     Attorney is not entitled to compensationfor
     such servioes rendered, since there is no
     statutory provision for the same. Art. 26,
     c. c. P.:  Voges v. Shep)ard, 67 S. 3. 26
     856.
                                  Pours very truly, 1,
                              ATTORN"EYGENERAL
                                             OFTEXAS




BA:erc:WB
                              By
                               &1*Assistant


                              AmwED
                              jE&dh?d,
                              ATTORNEY GENERAL
