          OFFICE      OF    THE   A’TI’ORNEY     GENERAL   OF    TEXAS
                                        AUSTIN




    Ecmorable Lfllton Tatum
    Dietriot Attorney
    Dal&at,  Texae                       v                    ,
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    Dear Sir:                         Opinion No. O-2328    ‘\     ‘,,




                me   have   reoeivs                        rein you request
    the opinion oi thls depar                              t4 etated ques-
    tions. Your 14ttsr r




                                            44ding;s had In
                                            411 at3 Jud~4
                                            tdot Attorney
                                   diotnent ma returned
                                    4 oa64 In the preoebing



I                       therspoon contemplates an
                        nohee with 8onm other MB-
        trlot Jwlg4   In the Panhandle In the neer
        future in order that a number of oaaee
        pending on ths doolcst in whloh lndlotmente
        were returned   durlx his term of Dietriot
        Attorney may ba legally dispotmd of lnolud-
        lnr: thle mrdor   oaee. :
    Honorable Lilton ':ntum, 2%~   2



              "The questions I deslru to propound to
         you In regard to this murder case crc; the
         followln(;:

                          "!luostlon 1.

              "Co@.d a Dlstrlot Judge appoint a Dls-
         trlot Attorney pro tein or ~ppeclcl Dlstrlct
         Attorney to try this oase, and if so vauld
         thla Dlstrlot Attorney  aot and be entitled
         to oompenaatlon only du.rlne the aotusl trial
         of the owe?

                          V.uostlon 2.

             "Some of the Interested parties desire
        to have some attorney appointed In advanoe
        and permit Mm to spend, say two woeka ln-
        v4stl~atlng the oat34 on the theory that he
        could add this time to the actual trial of
        the ease and colleot fbr It off of the State
        and thereby naka him a reasonable fee for
        hls aemrloee.

             *Could the State legally pay under theee
        oondltlona oompensation for a District Attor-
        ney pro ten whll4 lnveatlgatlq  a case ln addl-
        tlon to t& aotual time ooneutx?d In the trial?
            3,.
                         *Questio'n 3.

             "The only authority I ilnd for the ap int-
        mat  of a Dietriot Attorney  pro tan le Artr 014
        31 of the Code 02 Criminal Proo4dur4, protidlng
        wh4nev4r all7 Dietrlot or County Attorney falls
        to attend any &nrm of the Dlstrlot, County or
        Juatioe Court the Judge of said Court or suoh
        Juatloe may appoint Borne competent attorney to
        perform suoh dutld;s of suoh District or County
        Attorney, who shall be allowed the same oompensa-
        tlon for his s4rvlo4 as Is allowed the District
        Attorney or County Attorney.    ald appointment
        shell not c&end beyond the term of the oourt
        to whloh it Is made and shall be vacated u n
        the appearanoe of the Dlstriot or County AP tar-
        ney.
-             *Doeaf;Rls a@&$X_e..ln fnct authorize   a Dis-
IBnorable Mllton Toturn, Page 3



     trlot Juke to appoint a Dlstriot Attorney pro
     ternmrely because I happen to be disquallilcd
     in a Given ~144, but I am present and in at-
     tendance upon oolrrt?

                         “Question 4.

          *In any event If authotity exists for the
     ag?olntmant of a Dletrlot Attorney pro tern and
     on4 should be appointed who ccts durl&y the
     actual trlsl or perhap in ndvance thereof,
     will any oompensatlon to XhIch he Is ontltlod
     have to be deducted from my salary?"

           Article 25 of the Code of Criminal Procedure reads,
In part:

          "Each dlstrlot attorney shall reprosent
     the State in all orlmlnal oases In the dls-
     trlot oourts of his d%strIot, except in oases
     where he haa been, b,tfor,zhis oleotion, em-
     ployed adversely.

           Art1014 31 of the Code of Criminal. Prooedure pro-
vides:

           "Yihenever any dlstriot or county attorney
     rail6to   attend any term or tho district, ooun-
     ty orpustloe*s    court, the judge of eald court
     or suoh juetioe may appoint competent attorney
     to perform the   dutlms of 6uoh dlstriot or ooun-
     ty attommy, who shall be allowed the IXUW oom-
     pentaatlon for hla servloea aa Is allowed ths
     dletrlot attorney or oounty attorney.    Said ap-
     pointment shall not extend beyond the term of
     the oourt at whloh It Is made, and shall b4
     vacated upon the appearanoa of the distriot or
     oountg attorn4y..

           W4   quote from 15 Tex. Sur., p. 389:

            wExaroleing       his statutory power, the jtiGe
     may appoint any oompetent attorney or member of
     the bar to perform the duties of dlstrlot attor-
     ney or oounty attorney.          This power mnjr be prop-
     erly exercised whero there exists a vocan~y In
     the office         of district attorney, i>lhcrctho dls-
                                                                      .,.,’




Honorable hlflton Tatum, Page I



     trlot attorney Is temporarily disabled to
     aot, or in any partloular case where there
     may exlat spsolal reaaona why hn should not
     aot. !Th4 6tatut4 Ooniera full power on the
     Dlstrlot Court to appoint, without any llm-
     It as to ths tlms durlw.whioh  inaumbenoy
     0r office shall oontinue, exoeptlw that
     th4 eppointment may not extend beyond the
     term of oourt or the appearance of the regu-
     lar officer, and may be terminated at the
     pleaeuro or tha OOurtl*~

~llso 444 State VS. Oonzalee,   26 Tex, 197.
          It was helb In the case of Bennett vs. State, 27
Tex. 702, that in the absenoe of good oause for refuslnl; an
appolntnent, ths Dlstrlot Judge.nmy snforao Its appointment
02 a district attorney pro tem',by lmposiw an adequate pudeh-
Pent ior the refusal.

           Although the etatut%s 4r4 vague on the subjeot, part
of the duties of a dletrlot attorney In representln$ the State
in a criminal eas4 ia to lnvsstlgato and thorou@ly     fsmlllarlz4
himself with the faote, in order that he oan properly reprceent
the stat4 In oourt.    It oan hardly be said that a dlstrlot at-
torney oould be erpeoted to walk Into court end enter into the
trial of the oaae without flr.st haviq   studied and Investigated
lmme.
          &
              vlsrr of th4 foregoing authorltlolr, you are’respeot-
fully advlao6 that   It I# the oplnlon of this departnsnt, in an-
5wec to your flrti an& waolvl questlone, that a dlmtrlot jtige
may appoint a dlstrlot attorney pro tern to dlopose of a orlmlnal
oao4 in whloh tha regularly 4leoted dlstrlot attommy Is die-
qual.lrled~ that such appointment may be ~a44 eufflclently in
advenoo of the trial to give him an opportunity to lnveatlgah
and ramiliarlze hlme4l.t with the faots of the ease; and that
suoh dlstrlat attorney pro tern is entitled to oomponsotlon em-
1~ the entire period of! suoh appointment.

          The anenar to your first and seoond questions pre-
cludes the neoesslty of an anmer to your third question.

          hrtlole 31, 00de of Criminal Prooedure, aupra, pro-
vides that a dletrlot or oounty attorney pro ten shell be al-
lowed the same compensation for his ner-.~loosss is !;llowsd th4
dlstrlot or oou!ltj'attorney,
         Honorable Kilton Tatum, Page 5



                   Artiole 38&f,      Vernon's Civil Statutos, ,reade,ln
         part, a8 follow81

                    "s40.. 1. From and after January 1, 1936,
               in all Judlolal Distrlota of this Stat4 the
               Dietriot Attorney  in eaoh such District shall
               receive from tha State as pay for his services
               tho sum of Four Thousend Dollars ($&,OOO! per
               year, whloh eald Four Thoussnd Dollars (+OOO)
               ohall lnolude the Fly4 Hunbrad pollara (,igOCl
               salary per par now allowed such Dlstrl~t*A~tor-
               ney by the Goastltutlon or this State;

                       "SOO. 2. All monlss hareteforc approprlat-
               ed    by the Leglelature to pay fees, s4hrlee  and
               per    diem aooounts of the officers named In this
               Aot    are hereby reappropriated for the purpoas
               of    paylng the salarles fired by this Aot.*

                   Althou&  the statutes quoted do not spoclfloelly
         provide that the salary of the dlstrlot attorney pro t&m
         ehall be determlaed by the number of days he serve&j, w4 be-
         lieve that the Imet praotioal way of oaloulatlfig his oompensa-
         tlon 1s to divide tlm annual salary of the dlstrlat attorney
,... :   by 365 and multiply the quotient by the number of days aotual-
         ly served by euoh district attorney pro tom.

                     In our Opinion No. O-1529, a oopy of whioh 1s enolos-
                       for your information, It Is held that the regular
          ed herewl y),..
,.,.~     Ealary of    oouatf /&go Is mt to be reduoed by the amount
  ..     .that,lo pala  to E spoolal     Jaalge.  We we m reason why the
          aam rule should not apply in ln5t5no44        wh4re it 15 neoeaaary
          to appoiat a dlatrlot    attorney    pro ten or special diotrlot
          attorney;
                                ;'
                     Th4reior4; in anmr4r to your iburt&      question, it Is
          the opinion of this dopartzunt that the regular dlstrlot attor-
          ney*s salary Is xnt ta be reduoed by th4 esount that Is pald
          to the district attorney pro tern..

                   Truetl~     that tho forreeolnC fully aumrs   your in-
         quiry, we renain
