                      June   1,   1977




The Honorable Tom Curtis                 Opinion No. H-1006
District Attorney
47th Judicial District                   Re: Representation of the
Amarillo, Texas                          state in county court when
                                         the county attorney is dis-
                                         qualified.

Dear Mr. Curtis:

     you have requested our opinion regarding the procedure
to be followed when the judge of a county court at law has
disqualified himself in a pending case and the county attor-
ney is disqualified from participating in the selection of a
special judge.

     Article 30.03 of the Code of Criminal Procedure provides,
in section 1:

          When the judge of the county court or
          county court at law, or of any county
          criminal court, is disqualified in any
          criminal case pending in the court of
          which he is judge, the parties may by
          consent agree upon a special judge to
          try such case. If they fail to agree
          upon a special judge to try such case,
          on or before the third day of the term
          at which such case may be called for
          trial, the practicing attorneys of the
          court present may elect from among
          their number a special judge who shall
          try the case. The election of the spec-
          ial judge shall be conducted in accor-
          dance with the provisions of Article
          1887, et seq., V.A.C.S.

In the present instance, one of the parties is the county
attorney, who is himself disqualified from participating in
the case. Article 2.07(a) of the Code of Criminal Procedure
states that,
The Honorable Tom Curtis - page 2 (H-10061



          Whenever an attorney.for the state is
          disqualified to act in any case or pro-
          ceeding . . . the judge of the court in
          which he represents the state may ap-
          point any competent attorney to perform
          the duties of the office during the . . .
          disqualification of the attorney for
          the state.

Although article 2.02 requires the county attorney to repre-
sent the state in the absence of the district attorney, no
statute authorizes the district attorney to do so in the
county attorney's absence.

     The procedure described in section 1 of article 30.03
for selecting a especial judge is, however, permissive only,
and it is not the exclusive method prescribed.   Section 2 of
that statute provides:

          In the event a county judge or the regu-
          lar judge of a county court at law created
          in a county is absent, or is for any cause
          disabled from presiding, a special judge,
          who is an attorney, may be appointed by
          the commissioners court of the county.

Clearly, a regular judge who has disqualified himself from
presiding in a particular case is "for any cause disabled
from presiding" under the terms of section 2. Since the pro-
visions of section 1 are not operable because of the dis-
qualification of the county attorney, we believe that section
2 states the appropriate method for selecting the special
judge. In our opinion, therefore, the commissioners court
of the county should appoint "a special judge who is an
attorney" to preside while the regular judge is disqualified.
Under the terms of article 2.07(a), such special judge should
then "appoint any competent,attorney to perform the duties of
the office" of county attorney during the pendency of the
trial.

                        SUMMARY .-
                        -.
          When the judge of a county .court at law
          has disqualified himself from presiding
          in a misdemeanor case, and the county
          attorney is himself disqualified from




                           p. 4164
     The Honorable Tom Curtis - page 3     (H-1006)



                 participating in the selection of a spe-
                 cial judge, the county commissioners
                 court should appoint a special judge
                 to hear the case.




~~                          -zAttorney        General of Texas

     APPROVED:




     EiVID M. KENDALL, First Assistant




     C. ROBERT HEATB, Chairman
     Opinion Committee

     km1




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