                                                                           I




            OFFICE    OF THE     AllORNEY       GENERAL    OF TEXAS
                                       AUSTIN




Roaorable W. 9. Barron,        Judge
85th Judlaial  Dlstriat
Bryan, Texas


Dear Sir:




           Your letter of May 89                               the opinion  of
thie department on the quest                                     in part,  a8
:ollow~ :


                                                     n the follow-
     ing matter:   maa                                againat    the
     County Attorney                         y, before    a regularly
     organized   Grand                       ary requested      that I
                                             to advise the Grand
                                                I conaldered     whether
                                             etenta   or appoint a
                                         all the conditions        to
                                        mn County Bar ae County
                                         Mr. John R. Grace           0r
                               lnted’to   this   place,   nfter two
                              unty had refused       assigning    reasons
                                Graoe advised with the Grand Jury.
                             one ror bribery      and the other theft.
                           :B dlmnlesed     on the n&ion      of the
                           Tern, and the Felony indictment          went
      to trial  and consumed three daya and until        mid-night
      the third  dey, when a Jury returned      a terdlct    of not
      guilty.

            wPleaae   inform    me ae tollowe:

            “1. Doea Robertson         Count7 have the authority      to
      Pay the County Attorney          Pro Tern for hia. aerviaeal

          “(a)  Xi ao     should a reasonable   fee bb ,ilxed         by
     me and aertlfied     to the Comalsalonsr~r    Court,  or
Honorable       W. S.     Barroll,    page   a
                                                                                              553




                 *(b)
                   Should an             amount
                                     be determined  based on
        the time given by tb    Pm Tern In ths proparatlon
        and trial  of the oass.   That 18, ii two week8 wera
        oonaumad should It be an amount 8qual to one-half
        oi a month’s  salary  paid the County Attorney.   ***”


                 Am YOU kSOW, Of OOUBO, Art1010 4399, ~OIpILo~‘8hIIOta-
 ted Ciril   Statute8,    doe8 not authorize thir department to render
 nitton    opinion  for            the Dlstriot     Judge8    of   this   Statei   however,
 under the partloular    olroumstanorr and raOt8, we maim an uoep-
tion in thir ill8taJlOIr     A8 wo underrtand your rrqurrt,    thr
County Attornoy was undrr lndlotmsnt      by the Grand Jury of Robert-
aon County, and 8aId oounty doer not ha?8 a Dlstrlot       Attorney.
Thsrerors,  a8 heretororo     otated, ws makr an sxoeptlon  In answer-
ing your r8que8t.


                Artlols      31,     Vernon’8     Annatated Codr ot CrIainal          FToosdure,
prorldes    1



                 ‘Whsnevsr      sny
                             dletriot    or county attOrn                     rail8
        to attend any term of the Diatriot,        County or Justiar
        Court, the Judg8 ot said Court or sush Justlor          may ap-
        pofnt 8oae oonpetrnt    attorney    to perform the dutier
        or ruoh Dietriot   or County Attorney,      who shall   be al-
        lowed the same oompansation      for his serrloes     as 18 al-
        lowed tha DIstrIot   Attorney or County Attorney.         Said
        appolntnmnt  shall  not oxtend beyond the term of the
        oourt at whloh it is madr, and ohall br taoated          upon
        th8 appearanor   of ths Dlstrlot     or County Attorneg,m



             Artiole         3i3;. Vernon’8       Annotated    Code oi    CrImlnal    Rooaduro,
reads    as fOllOW8:


              wDIatriot  md oounty attorney8    shall  not bs oi
         oounsel  adversely  to the Stats   in any sass,  in any
         oourt, nor shall   they,  after  odes8 to b8 suoh otrioers,
         be of oounsel advsraely    to the State in any oaae In
         whioh th8y haV8 been ot oounasl for the Stats,”




                                                                                                    .r
                                                                             r.
                                                                              ;:
                                                                                   1.   560
Honorable   iY. 2.   Barron,   page   2




            Bxeroislng     hi8 statutory     power, the Judge or Juatlae
may appoint any oompetent attorney           or a8mber or the Bar to per-
r0r0   the dutier    or  District   Attorney     or County Attorney.     Thla
power may be properly 8xeroised          when there 8xIstr     a vaoanoy In
the 0rri06 0r      the District    or County Attorney,      where th8 Dlstrlot
or County Attorney       is tmporarily      dirrablrd to aot, or in shy par-
tIoular   ease where there aay l       Xi8t 8pOOIal r4a10118 why the Distriot
or County Attorney       should not sot,       It has baa held that a oompet-
ent attorney may be appoint46          to aot on behalf     of the State     or
a8 ah assistant      0r  the State.8    04~~841,    in a runmary DrooedIning
for the removal of a osunty attorney             or other .oounty oflioer.    (Sea
*ia     ?* Stat.,    49 Ter. 645) B-&t          vm State,   29 Tuar,   902; State
Y* &nZal48,       26 lb,   1998 Daniel8    v. State,     99 S. W. 216)


          A8 the County Attorney was under IndIot&t          by the Grand
Jury, he oould not repreeent     the State   in suoh prooeedinep,  and a8
there wa8 no D1strIot  .Attorney   In ,aaId County to perform suah du-
tier, it Is olear that the Dirtriot      Judge had authority to appoint
a oounty attorney  pro +a~ to perform ouoh servioes.

            We hata     oareiully  oonsldered   th8 ease Uf~Voges v. Shepherd,
69 9. W. (Zid) 8&l,      In oonneotlon   with the questions   under oonsldera-
tion and bsll~ve      that this oase has no applioation     to the question8
Presented.


            We do not believe      that Artiole     26, Vernonte Annotated       Code
oi Criminal     Rooedure,    has any applioation      to the questions      under
Consideration,     but that thr question8       presented    In your Inquiry,      are
6overned by the foreSoIng       ltatuta8 and authorities.          Artlole   31, supra,
4Ipresely   provid88    that wherr a Oompetent attorney         performs the duties
ot oounty attorney,       suah attorney   shall   be allowed the ssme oompensa-
tion for his SeIvIOO8 as allowed        to the oouuty attorney.            The oounty
OtiIoials   oil Robertson    Oounty are compensated on aa annual salary
baris and the oounty pays the’ salaries          of suoh ofiioia,)r.       Therefore,
*e respeottully     answer your rirst question         In the afi:rmatlve.


             We now ooneldrr    your seoond and third      questions.   Although
etiole    31, supra,    does not 8peoIfioally    provide    that the 8alary   of
the oounty attorney      pro ten shall   be dstermlned     by the number of days
he serves,    we believe   that the most praotloable       way of oalaulatIn2
us oompensatlon      Is to divide   the annual salary      of the oounty attor-
                                                                        .’


                                                                               5611
fbnorable   W, 9.   Barron,   page 4




nay by three     hundred and sixty-five     and multiply   the WOtl4nt    by
the number of days aotually        served by suoh county attornry      Pro t4&
It ir noted that you state the oounty attorney           served three days
in the aotual trial       of the saae.    It la not stated    how much time
the oountg attorney       pro tea  rened   with the Grand Jury Inveatiga-
ting   the aasa involved.       It is our opinion   that the oounty attorney
pro tam la entitled       to oompensatlon~ iron the county npoa the baa18
heretoron      rtated  for all the tine he served      a8 oounty attorney    ~0
tom   before the Grand Jury and for the tIne aotually          ongaged in the
trial   or the oases        It Is our further opinion that the oounty
attorney    pro tern would not be entitled     to any ooapensation     for the
tfae   rpent in the preparation       oi the ease.     In other worda, all
the oompenration      to whioh he would be entitled      would be ror the time
apent with the Grand Jmy and ror the time spent In the aotual               trial
or   th4 oase.


            Wa believe   that   what has been said heretotore   answers        both
your   aeoond and third    question;  therefore,  It is unnecessary  to        dls-
0~88   ruoh que8tIona   rurther.

                                                     Yours very truly

                                               ATTCRNBY
                                                      GENHUL OF TEXAS

                                                    /-&4L?edL
                                               BY
                                                          Ardell   William8
                                                                   Assistant
