                      November 14, 1990


Honorable Bill M. Reimer      Opinion NO. JM-1246
District Attorney
Coma1 County, Texas           Re: Authority of a dietrtct
150 N. Seguin, Suite 307      judge to appoint a dietrrzt
New Braunfele, Texas 78130    attorney pro ternunder
                              cle 2.07 of     the Code of
                              Criminal    Procedure  where
                              there is an assistant diet-
                              rict attorney in place
                              (RQ-2141)
Dear Mr. Reimer:
     you have requested our opinion regarding the authority
of a district judge to appoint a district attorney "pro
tern,"pursuant to article 2.07 of the Code of Criminal
Procedure. The statute provides:
          (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 dieguali-
       fication of the attorney for the state.
          (b) Except as otherwise provided by this
       subsection, if the appointed attorney is also
       an 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. Nothing herein shall
       prevent a commissioners court of a county from
       contracting with another commissioners court
       to pay expenses and reimburse compensation
       paid by a county to an attorney for the state
       who is appointed to perform additional duties.
          (b-l) Au attorney for the state who is not
       disqualified to act may request the court to


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Honorable Bill M. Reimer - Page 2   (J&1246)




       permit him to recuee himself in a case for
       good cause and upon approval by the court is
       disqualified.
          (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 clerk of the court.     He shall 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.
     You indicate that the elected district attorney    "has
been called to active duty because of the Middle        East
eituation."
     You first ask whether the term "attorney for the state"
as defined in section (d) includes an assistant district
attorney. By its very terms, the statute does not apply to
anyone except ea county attorney, a district attorney, or a
criminal district attorney." In Attorney General Opinion
BB-80 (1979), this office declared:
      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. . . .   The assistant die-
      trict attorney is appointed by and subject to
      removal by the district attorney. . . .    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. u                  75 S.W. 305 (Tex.
      Grim. App. 1903). Conetrui~g article 2.07 to
      authorize the appointment of an assistant
      district attorney would also bring it into



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Honorable Bill M. Reimer - Page 3 '(JM-1246)




       conflict with article 332a, V.T.C.S., which
       permits the prosecuting attorney to choose his
       own aeeietante.
We agree with this analysis. In our opinion, "attorney    for
the state" as used in section (d) does not include         an
assistant district attorney.
     You next ask whether article 2.07 precludes a judge
from making an appointment thereunder if "an assistant
district attorney is in place." Since, as ve have indicat-
ed, an assistant district attorney is not an "attorney for
the state" within the meaning of the statute, a district
judge is permitted by the terms of section (a) to make ;zz
requisite appointment in the situation you pose.
elected district attorney*6 absence from the country neces-
sarily means that that official "ia absent from the county
or di8trict.e The presence of an assistant district attor-
ney makes no difference for purposes of article 2.07.
     you also ask about the appointive power of a district
judge under article 2.07 as it relates to the Governor's
authority to appoint a district attorney.        Article 4,
section 12, of the Texas Constitution grants to the Governor
the power to fill a vacancv in the office of district
attorney. Article 2.07 does not address the situation of a
vacancy. It refers only to those instances in which a
district attorney is temporarily unable to perform the
duties of his office. Were it to be construed otherwise,
article 2.07 would clearly be an unconstitutional usurpation
of the Governor's authority to fill vacancies under article
4, section 12.

                       SUMMARY
          A district judge is authorized to appoint a
       district attorney pro ternpursuant to article
       2.07 of the Code of Criminal Procedure, even
       though there is an assistant district attorney
       in place.




                                   JIM     MATTOX
                                   Attorney General of Texas
RARYRRLLRR
First Assistant Attorney General



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Honorable Bill M. Reinter    - Page 4    (~~-1246)




Lou   MCCREARY
Executive Assistant Attorney    General
JUDGEZOLLIESTBAKLEY
Special Aeeietant Attorney     General
REHEA HICXS
Special Aeeietant Attorney     General
RICK GILPIN
Chairman, Opinion   Committee
Prepared by Rick Gilpin
Aeeietant Attorney General




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