                                                                839



           OFFtCE OF THE ATTORNEY    GENERAL   OF TEXAS
                            AUSTIN




Ilonorable Oeaa 8. Tumor
District    Attorney
Clobwne, Toxas
mar Lx-.Turnor




                                               ks the advise




                                          ~rminato at the
                                     the appointment vas

                                     pointal be rsquirad to
                                     file the bond requirfxl


                         Ode OS Criminal Procedure, provides:
                         district or oounty attorney
                          term of the dietrict, county
                   court, tha Judge of sald court or
      euch justice nzayappoint come competent attorney
      to perform the dutiee OS such district or county
      attornay, vho shall be allovod the same compen-
      sation for his serviaoe as is allovod the dls-
      trlot attorney tr oounty attorney. Said appoint-
      ment &all not extend beyond the term ~3 the
      oourt at vkLch it is mask?,aud &al1 be vaoated
      upon the appearance OS the district or eouutg
      attorney,*
                                                                840'
ihnorable aeanD~ Turner- page 3




           Since the Artiole authorizes the appointment OS
an attorney to perform the duties of the regular Mstriot
Attorney only ia the instawe whore there is an incumbent
OS the office OS Distrlet Attorney vho Sails to attend a
term  of the District Court, iS the OSSioo of Distriot At-
tommy ie vooatod by your entry into tbe niwal service of
the United  ftatea, the appointmentwould not be authorized.
In such oaae there vould ezlst a rimamy in the office of
M&riot Attorney    to be tilled by apwintfm.It of the Govern-
orb Glover I* Albrecht, (4%. App,) lv3 8. 1. WI.
          Ye assume that you are prepar%ng to accept and
quallSy for an offbe In one OS the RoseIW3 forces OS the
United States Davy.
          Article lf3,section l3, of our Gonstitutionpro-
vides1
          *So merabsrot Congress, nor person holding
     or exerolsingany ofiice OS proS%t or trust, un-
     dex theUnitedStatee,or either OS thom,orun-
     der auy foreign powor, shall be eligible as a
     member of the U?gislatuFe, or bold or exeroiae
     any orsioe OS profit or trust under this State.'
          We have heretofore Conetrued the recent dooiaion
OS our supreue Court in the case of Oraver t. Qlegvati,
167    8.1.  (2)    147, as holding that tho exoaption to
XlZT$ration   of XTTZO    16, Se&ion 12, proviaod in Arti-
a10 18, section 40, eubraaed all those oivil offY.oereOS
tNe State vho acquire an office in any OS the ndl.%taryor
naval forces oP the'united 8tatce, exoeat $&regulsr_ I&&&-
tars Or navul establishments. (See.our Upinlon No. O-M)3ff,
hcroto attcmhed).
          In vlev OS romnt dovelopvmte, our lnterprota-
tion of the court's opinion eeems OS doubtf'ulvalidity. A
fov veelxsago tho District Attormy of Hueoee County made
appllcatfonto the Supreme Court for leave to file in that
oourt an orl.gLnalquo warrant0 prooeadina to test the right
of a spooial Mstrict Judge elootod by the bar to hold and
exercise the oSSioe, alleging that there vas no 8UthOtitp
Sor his election, because the regular Distriot Judge had
vaoated his offioe by accepting aud qualifyingfor an OS-
flee in the #aval Reticrve. The court granted leave to pile,
thou ctiamissed,-
                not upon w-
                         the uerits, but upon the ground
Eonorable Gean BO TWWr   - page 3
                                                             841




that the Mstriot  Attorney had no authority to represent
the State in such au aetion in the Supreme Court,
          'ibis aation on the part of the court indicates
that it does not regard the Cramer decision as deoidiug
the question vhether the proviso nppeuded to Article 13,
Seat&on 40, ‘extends to those who enter naval reserve or-
I;3nie3tions.We have flldd a motion to reinstate the
Nuecea County action, requesting that thim be done to al-
loa the Attorney General to oxemise his constitutional
right to represent the state ixathe 3upreme Court, to the
end that the matter may be determined upon the merits.
Upon this motion the oourt has not yet aotod.
             In viev of this eltuatlonwo are unable to ad-
vise you whether an appointmoatmay be mda under Article
31, Code OS Criminal Frooedure, after you aooept and
qualiSy Sor au office in the Nay&l neseme Soroos of the
uaited states.
          xf such an appciutmeut‘canbe made, hovover, under
the Saots in your 0888~ it vi11 not, under the express terms
of Artiols 31, extend beyond the term of tho court at vNOh
it is inside*House Bill 717, 43th Logielaturo,does not at-
tempt to authorize appointmentsto be mado to praviaa persons
to disaharge the duties of those officers who are In the am-
ed earPic0e of the Unit&I states. It simply authoriaes pay-
meht OS the aompolzsationattaohed to the prinoipnl office,
under ocrtain airouvstanees,sto any other person who, under
$& provisions Op x     &I Op t&&q &&f,   is appointed oi;--
elected to temporarilyfill such civil offioc during the
absence of sucdaofficer. + * O..
          Armvering pour tNird question,if an appointment
under the facts OS your ease ash be trade,the appointee ssmt
take the oath of office, but is not requireiito give bond.
The person appoint&l under Article 31, Code of Criminal Pro-
ocduro, is an Officer of this State. Ml OfSioere of this
State, perSoro0 0P Article 16, Sea,tion1, 0P the Cunetitu-
tlon, as veil a8 Article lb, Berised Civil Statutes, are r*
quired to take the oath presoribalby the Constitution,Arti-
al0 16, section 1. As to the bond, vhile the statute re-
quires the District Attorney to &Are bond, there is no stat-
ute requiring a bond of one appointed under Article 31 to
discharge the duties of tho District Attorney. Such person
lionOraW~ Gean B. Tumor - page 4




do08 not hold the otfioe of District Attornq, but a
epoaia1 statutory 0ffioe.




                          very   truly   yotlrs

                      ABTTOJW3X
                             WJiJtRAl,,
                                     OP Tm



                                  a. 61 Fairohild
                                        Assistant
