                              August 6, 1987




      HonorableGary A. Goff            OpinionNo. JM-763
      HockleyCountyAttorney
      Courthousa                       Be: Whether a countyattorneywho
      Levelland.Texas 79336            is.appoiutedto serve as a special
                                       prosecutorfor another county may
                                       be paid for his services

      Dear Mr. Goff:

          You ask whetherau individualwho contractsto serve as a special
      prosecutor may be paid for--his services under the following
      circumstances:

                  A police lieutenantwas chargedwith tampering
               with a governmentrecord. HocklayCountyDistrict
-              Attorney Warren Tabor, Jr. was disqualified
               becausehe was a potentialwitness in the case. so
               the servicesof a specialprosecutorwas required.

                   Dwayne pruitt. au attorneyin Brownfield,Texas
               was contactedconcerningthe specialprosecution.
               Mr. Pruitt has a private law practice,but also
               serves as a county attorneywith felony prosecu-
               tion powers for Terry County. He was not elected
               under the ProfessionalProsecutorAct. It was in
               his capacityas a privateattorneythat Mr. Pruitt
               “a8   approached about serving as the special
               prosecutorin this case.

                  Subsequently,the liockleyCounty Commissioners
               Court entered into a verbal agreement with Mr.
               Pruitt in his capacity as a private lawyer to
               representEockley County as a special prosecutor
               and he was appointed to the position by the
               districtjudge.

                  Mr. Pruitt has discharged his duties as s
               special prosecutor for Hockley County, but a
               questionhas arisen concerningthe applicationsof
               section2.07(b)of the Code of CriminalProcedure.
Ic-
               Does the statute prohibit Bockley County paying




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HonorableGary A. Goff -   Page   2   (J&763)




         Mr. Pruitt for his services performed in his
         private capacityas contracted?

    Prom the facts you have relatedwe will assume that trial was in
Hockley County for an offenseallegedto have occurredin that county.

     Your conclusionsthat the county attorney of Terry County has
authorityto perform the duties of districtattorneyin Terry County,
and that the office he holds does not fall within the provisionsof
the ProfessionalProsecutorsAct, are supportedby sections45.323 and
46.002 of the Gove-nt   Code.

    Your concern relative to the authority of the Hockley County
CommissionersCourt to pay the countyattorueyof Terry County for his
servicesas a specialprosecutorin Hockley County is promptedby the
prohibitions appearing in article 2.07 of the Code of Criminal
Procedure. Article 2.07 provides:

             (a) Whericker an attorney for the state    is
         disqualifiedto act in any case or proceeding,is
         absent for the county or district,or is otherwise
         unable to perform the duties of his office, or in
         any instancewhere there is no attorney   for the
         state, the judge of the court in which he repre-
         sents the state may appointany competentattorney
         to perform the duties of the office during the
         absence or disqualificationof the attorney for
         the state.

            (b) 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
         additionalcompensation.

            (c) If the appointed attorney is not an
         attorneyfor the state,he is qualifiedto perform
         the duties of the office for the period of absence
         or disqualification of the attorneyfor the state
         on filingan oath with the clerk of the court. He
         shall receive compensationin the same amount and
         manuer as an attorney appointed to represent an
         indigentperson.

            (d) In this article. 'attorneyfor the state'
         means a county attorney,a districtattorney,or s
         criminaldistrictattorney. (Emphasisadded).




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Eowrable Gary A. Goff - Page 3   (JM-763)




     Sections (b) and (c) of article 2.07 of the Code of Criminal
Procedure establish two distinct classes from which the appointed
attorneymay be drawn. It contemplatesthat any one individualwill
be either an attorneyfor the state or not au attorneyfor the state.
One persoa cannot be in both classes at the same time even if he
maintainsa privatepracticeduring his term as countyattorney.

     Section41.004 of the GovernmentCode prohibitsa county attorney
from receivingcompensationto prosecuteany case that he is required
by law to prosecute. See Hill Farm, Inc. v. Hill County, 425 S.W.2d
44 (Tex. Civ. App. - Waco 1968). aff'd, 436 S.W.2d 320 (Tex. 1969);
Jonas v. Veltmauu, 171 S.W. 287 (Tex. Civ. App. - San Antonio 1914,
writ ref'd);AttorneyGeneralOpinionMb'-483(1982). In countiesnot
subject to the Professional Prosecutors Act, a county attorney
geuerallymay receive compensationfor performingservices,whether
for the county for whom he is au officeror for someoueelse, where no
duty to perform such services is imposed by law. See Lattixorev.
TartautCounty. 124 S.W. 205 (Tex. Civ. App. 1909. nowrit); Browning
v. Tarrant County. 111 S.W. 748 (Tex. Civ. App. 1908. no writ). The
attorueyof one county is under no generallegal obligationto act as
attorneypro tom for mother county; therefore,absent some specific
prohibitionthat acts as an exceptionto this general rule, a county
attorneyof oue county acting as attorneypro ternfor another county
would not be prohibited from receiving compensationfor performing
such services. Article 2.07 of the Code of CriminalProcedureacts as
such an exeption. Under article2.07, if the appointeeis an attorney
for the state,he will not receiveadditionalcompensationfor serving
a specialprosecutor. If on the other hand, he is not au attorneyfor
the state, he may receive compensationfor his service. An "attorney
for the state" includes a county attorney. Code Grim. Proc. art.
2.07(d). Mr. Pruitt, the attorneyfor Terry County, is thereforeau
attorneyfor the state who is not entitledto additionalcompensation
for serviceas a prosecutor.

    When the appointedattorneyis su attorneyfor the state,article
2.07(b) of the Code of Criminal Procedure sets out two legal cou-
sequences: (1) the duties of the appointed office are additional
duties of his present office; (2) he is not entitled to additional
compensationfor performing those additional duties. By enacting
these conditions,the legislaturemay have intendedto avoid possible
violationsof articleXVI, section40 of the Texas Constitution,which
providesthat:

         Ro person shall hold or exerciseat the same time,
         more than oue civil office of emolument.. . .

Tex. Const. art. XVI, 940.  See Texas TurnpikeAuthorityv. Shepperd.
279 S.W.2d 302 (Tax. 1955) (provisionnaming highway commissionersas
uncompensatedox-officiodirectors of toll road authority does not




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                                                                         ,
Eonorable Gary A. Goff - Page 4      (JM-763)




violate article XVI, section 40 of the Texas Constitution). The
prohibition on compensation found in article 2.07(b) may have been
vieved by the legislature as absolutely essential to enable au
attorney for the state to replace another attorney for the state under
article 2.07(a). Article   2.07(b) of the Code of Criminal Procedure
prohibits Eockley County from paying the county attorney of Terry
County for his service as a special prosecutor pursuant to article
2.07(a) of the Code of Criminal Procedure.

                              SUMMARY

              Article 2.07(b) of the Code of Criminal Procedure
         prohibits Eockley County from paying the county
         attorney of Terry County for his service as a spectal
         prosecutor pursuant to article 2.07(a) of the Code of
         Criminal Procedure.




                                          JIM        WATTOX
                                          Attorney    General of Texas

MARY XEUEF.
Executive Assistant Attorney General

JUDGE ZOLLIE STEAXLEY
Special Assistant Attorney General

RICX GILPIN
Chairmen, Opinion Committee

Prepared by Susan L. Garrison
Aesistaut Attorney General




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