              OFFICZ    OF    THE   ATTORNEY    GE:NERAL     OF   TEXAS
                                       AU5TlN




      IIonorabla George Fi. Sheppard
      Coqtrollsr   of Publia ;iocou.nt.8
      Austin, Texas

      Dear air:




                                                             Article 3882,
                                                             otatad Civil


                                                       stated         qclestion   rezds




                    “I will    thank you to return    this     file     with
             your   r0Dlj.”

                   %I-, B. L, Teoigleton states In his letters  of Septm-
      ber 14th and Sapte~nber 20th, 1943, thst ha has bean appointed bg
      the District  Judge as authorized by Article    31 of the Code of
      Criainal Procedure.




se-
                                                                              86

                                                                              1_
Honorable     Cso.    B. Shepprd,     page 2




            The order of the District            Judge a>poieting     Xkxr.
Templeton reads aa follows:




                “33    IT                  That upon t&s oonvoning
                            ~?;‘~~X’SI~:IR%D                         of
            the regular Se$%aber tsrs of this Colurt, it appear-
            ing and htving bezn aId% ‘known that the regularly
            ;F;teftD;$rlot      .itborney   will be ab%%nt during thti
                           therefore,     the duty of this Court to
            a;lpoii*t a S~eoial District     .;ttorney t3 perform all
            ti;e duties of the regularly       elected Xstrict   .-.ttorneg
            during his absence.

                 “It ia, therefore,   ordered that B. L. Te.mplBton,
            a ragularly  licensed   attorney of this District,    be
            and he is hereby aspointed     S~ofsl  District  Att:>nieg
            for this term of this Court, upon his tsking the
            oath as prescribed    by law.


                                       of Tex-:s .v

             In co~1plisnoe with the above mentioned order I&-.
 T%inal%ton after his appointment by the District   Judge took tha
 following  oath:

                  “I, B. L. Templeton, do solemnly swear thAt I
            will faithfully     exeaute  the duties of the office     OS
            Spsoial Distri,ct    attornsy of the 32nd Judioisl     Die-
            trict    of Texls, and ~1.1.1 to the best of my ability
            prenarva, protaot     and defend the Constitution     and
            law% of the United States and of this Stat%; and I
            furthermore aolemnlp swear that I have not direotly
            nor indirectly     paid or offered or promised to pay,
            contributed    nor promised to contribute   any aoney
            or valuabls thing a% a reward for being appointed
         to this      office,        60 help ae God.
                                                “B. L. Templeton
                                                            “-
              uSv;~~n to and subscribed before me, at Sweat-
         water, Texas, this the f3th day of Septe.*ber, A.
         De 1945.
                                                 %? tle Robertson
                                               ---F
                                             “Cler -EfYZiZ~~~XGurt
                                              of Nolan County, TeraJ.”


             atiols       31, Vernon's       Lnaotsted   c0a-3   0r   crhinal   Proced-
tare, provides:

               Whenever any District   or County Attorney
         rails to attend any term of the District,     County
         or Justice Court, the Ju:fie or said Court or such
         Justice nay aspint    some competent attornay to
         perform the duties of such District    or County
         Attorney, who shall be allowed the saae compenas-
         tion for his services   as ia allowed the District
         ;Ittornsy or County Attorney.    Said a;point :ient
         shall not extaod beyond the term of the Court,
         at which it Is made, and shall be vacated upon
         the apgearance of the Distriat    or County Xttor-
         ney.”

             House Bill             NO. 717, Acts OI tk 48th Legislature,
aegul3.r &ssiOn,  1843,             r%d.ds, in plrt, a3 rOliCW3:

               "Saction         1     T&t
                                      any person holding a State
         or District     ofhice    in the Stste    of Texas, whether
         as a meabeer of the executive          leglslitise      or judi-
         cial departments, when cnlle d into the military
         service     of either the State or Uational Ooverrxnents,
         is hereby authorized to file with the Comptroller
         or Pub110 AoQounts        or the St-lta, a statement OF
         certificdtc     in writ&,       to the effect      that he
         waives    the paynent     of his salsry or pay or the
         emokaenta of hia said office          during the neriod
         of his military       service sod authorlting        the sey-
         mdnt 0r such salary,        pay or emolunents of hi8 of-
Honorabl,e Geo. 8. dheppard,      p-~ge 4




      flus to any other person, who, ui?dar the provl-
      ~~02s of any lsw of this State    is appointed or
      elaoted to temporarily   fill auoh 0lVil office
      during the absence of such officer,    elibh Wailer
      or agsignaent to t%rtinat% im’ediately     U~OU th6
      release   op discharge of said officer  lrora such
      5liiitery  service.

               “SBO. 2.   Such waiver OF assignment eb311 be
      sufficient    authority  for the Comptroller OP Pub-
      110 Aoaounts of the Stste of Texas to Fame State
      rarrauta and to pay such person 80 holding such
      oftioer’o   position during hla abeenoe in mili-
      tary aervioe out of appropriations   mU% by the
      Legislature   for such offioe.
             “Se,.   3. The filing    with tie Comptroller
      oP Publio nocount% of the State of Tex,ss of soch
      waiver or assignneat     provided for in this Act
      shall never bs oonstmed by x~y Court of this
      Stat+ to be a resi@Btion       from his office  by
      the p6S5On  entering the ailitary      sorvlce of the
      State. or Elation l,,Governs%nts OS that hia of-
      fice is vaoant ;i*y reason thereof.”

            ‘tie haye carefully considered ;Irticlea   323 snd 38S2,
?ernon*s Annotated Civil 3t:ltut*s,   in coniieotion with your r%-
quest and it is our opinion that these articks       are riot appli-
oable to the qu%stion presented in golur inquiry.
              The Su?re,m Court of thLs state in the ease of
Fowler v. s,       3 S, W. 255   constmfng   Adlcle  39 of the
Code63Xtrfnal      Prooadure, ( now Arti0l.e 31, Vcrnoa~s Anuota-
ted Code of Criminal Procedure)    mid;

              “Artiole   39 of the Code of Crizlfnal Trocedure
      authorizes    the Distriot     Judge, wheuever tha District
      and County Attorney fail to attend any term of the
      Court, to appoint ~0~10 coqmtent           attOxa6y    to perform
      their duties     during such tern,,       S5oh appointee repre-
      sents the state      in all   matters    in which it my be
      interested    that my arise during the tern..            ‘The state
      ie intsrea.ted    In a quo werranto proceeding If& the
      pmsent,    And its representative         la namd in the statute
      as the propur     person    t0 fil%   the  informtion;     and tbia
-Honcrirbls   Gee, li. Sheppard,   page S




         infomatlon     was tllcd    during the term of the court
         at which Cheffee was appointed,          and dur13g the abaenoe
         of the district     and ooimtg attorney.       The abova arti-
         cle does not require the a?polntee to give bond, as
         does artlole    244, Rev. St,, which provides for an appoint-
         aeat by th8 qov_nIYIor    when   the office   b8com?s   vuoazt,
         &mover,      Chaffes, who was made district        attorney pro
         tea, in tha absence of tha regular attorney oi the stats,
         Wa8 reeogalzed     a8 such by the oour t, and as the pro par
         Off! c&c to file tIMa LlfsrTk~tion, and he WC36st least
         e deel’fecto distriot    attormy,    whose authority      cmld not
         be attackad in this o~llatersl         roamer.”

              In vi3w of the foregoing authorities,   we respectfully
 anmar    the above stated quaation in the negnt ive.

            The file     which was attached    to your inqairg     is re-
 turned herewith.




                                                                 Xsslstsnt
 bYYlEP

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