                                       June 11.          1974


The Honorable Guy Hardin                                  Opinion   No.   H-   324
District Attorney
31st Judicial District                                    Re: Authority of District Judge to
P.O.    Box 571                                           appoint attorney pro tern under
Shamrock,    Texas                                        Art. 2.07,    Vernon’s  Code of Criminal
                                                          Procedure,     when District Attorney
                                                          is ‘not disqualified.
                                        r
             ..~
Dear Mr.     Hardin:

        -Y&have    requested our opinion on two separate questions.     The first
is whether a District Judge has authority,   under Article  2.07 of the Texas
Cod,e of .Criminal Procedure,   to appoint an attorney pro tern to act for the
District Attorney when the latter is neither ill, out of the district nor
disqualified.

          Article 2.07,   V. T. C. C. P.,        as amended. in 1973 (Acts      1973,   63rd Leg.,
ch.   154, p. 356). 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 disqualifica’-
                   tion of’-the attorney for then state.

                       (b) If the appointed attorney is also an attorney for
                   the state, the duties of the appointed office are additional
                   duties of hiss present office, and he is not entitled to




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The Honorable   Guy Hardin      page 2       (H- 324)




                additional   compensation.

                     (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 disquali-
                fication 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.

         Also pertinent to the answer      to your first   question   are the provisions
of Article   2.02, V. T. C. C. P. :

                     The county attorney shall attend the terms of
                court in his county below the grade of district court,
                and shall represent   the State in all criminal cases
                under examination or prosecution      in said county: and
                in the absence of the district attorney, he shall represent
                the State alone and, when requested,      shall aid the
                district attorney in the prosecution    of any case in
                behalf of the State in the district court.    (emphasis added)

        The office of District Attorney is a constitutional   one created by
Article 5, 5 21 of the Texas Constitution,   [See Moore v. State, 57 Tex.
307 (1882); Attorney General Opinion H-72 (1973)], which provides that he
shall be elected.   Vacancies  in the office are to be filled by the Governor,
with the advice and cons,ent of the Senate until the first general election.
Texas Const. Art. 4, g12.

        Reading Article   2.07 together with Article 2.02 of the Code of
Criminal Procedure,     as we are required to do by the rule that all statutes




                                      p.   1499
 The Honorable         Guy Hardin         page, 3      (H-324)




 in pari materia will be read together (53 Tex. Jur.: 2d, Statutes,     5 186,
 p. 280 and cases cited), we conclude that it is both the duty and the right
 of the county attorney, to represent the state in the absence of the district
 attorney and that it is only when both the district and county attorneys are
 unable to serve that.the district court may exercise.the-authority     conferred
 on it by Article .2.07,  V..T. C. C. P., .and appoint an attorney pro tern to
 represent   the, state. See Attorney General’s    Opinion No.. O-2531 (1940)
 and H-72,(1973).

            The four circumstances       under which the district court may appoint
  an attorney pro tern to represent        the state, as set out in Art. 2.07,   are
  where the attorney, for theLetate (1) i-s disqualified;      (2) is absent from the
  county or..dist+ct;,.,~3)  i,a otherwise    unable ,to perform~the duties of his
  office,   as for instance,    if he is sick; and (4).“in anyinstance     where there
  is no attorney for .the state. ” This last, in our opinion, must relate to
~:thoz    circumstances     wher,e _the office is vaca,nt. :

               You advise that,~ in your district,               the judge appointed an attorney
 pro tern to handle matters,, before a grand.,jury,. even though you were
 preseint”a;nd,-not,~disqualified.                The judge,: on the other~ha,nd, has advised
 us that you -were;abaent from the state and. made’n.o.lohjection                              to the appoint-
 mentor         the:continuation-of;the:appointee..fo:.act              after~you        returned.    We
  caqnnot resdlve:disput.ed~fact,i,ssues;,.
                     ,., :,:..y. .: . ..:                 -Ifyou, were absenttand there was no
 qualified.conntyattorney                 available to fill yours posit&n     ,, ,,,we      believe the judge
 had authority: toapp&nt:an                   attorney ‘pro tern.. Othk&ise            he did not.
                                               I
               Your second question involves the propriety of the court questioning
 a~..witness in~..a.criminal:tria,l,.about              the witness! s ,prior convictions            when the
  distsict’attorney            had..decidedthat
                                   .   *..            .such   testimony    would       be.-inadmissible.
 ~,,, 1 ..!‘i    ~.:, ,. ;~. c ~~ ,~ .: ,‘~.,‘I’ ,                       i ; i .,,
   ,~.Yi :_ ::~Thk :gcneral; rule .:seems to- be that, a.lthough&he triaL,court ordinarily
  should refraip~fram_~aki~g.przrt                  in the questioning,of       witnesi8es,       @does   have
  the right to satisfy itself upon questions subject to rulings. I:See, for example,
  Jackson v. State, 318 S. W. 2d 98 (Tex. Grim. 1958); Milo v. State,                                  214 S. W.
  2d 618 (Tex. ~~CriIhiG1948).:.’                           ._
                                  i.’                                             .,;,        ,:




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The Honorable   Guy Hardin     page 4   (H-324)




          Since the determination of whether error was committed is properly
the function of an appellate court, we must decline to.answer your second
question.

                                    SUMMARY

                     If the district attorney is present and is
                not otherwise disqualified,    the district court
                lacks jurisdiction   to appoint either the county
                attorney or an attorney pro tern to work with
                a grand jury.

                                                  Very   truly your*,




                                                  Attorney   General    of Texas




                              &a
DAVID M. KENDALL,        Chairman
Opinion Committee




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