Attorney General Opinion JM-0763

- Ic- August 6, 1987 Honorable Gary A. Goff Hockley County Attorney Courthousa Levelland. Texas 79336 Opinion No. JM-763 Be: Whether a county attorney who is.appoiuted to serve as a special prosecutor for another county may be paid for his services Dear Mr. Goff: You ask whether au individual who contracts to serve as a special prosecutor may be paid for--his services under the following circumstances: A police lieutenant was charged with tampering with a government record. Hocklay County District Attorney Warren Tabor, Jr. was disqualified because he was a potential witness in the case. so the services of a special prosecutor was required. Dwayne pruitt. au attorney in Brownfield, Texas was contacted concerning the special prosecution. Mr. Pruitt has a private law practice, but also serves as a county attorney with felony prosecu- tion powers for Terry County. He was not elected under the Professional Prosecutor Act. It was in his capacity as a private attorney that Mr. Pruitt “a8 approached about serving as the special prosecutor in this case. Subsequently, the liockley County Commissioners Court entered into a verbal agreement with Mr. Pruitt in his capacity as a private lawyer to represent Eockley County as a special prosecutor and he was appointed to the position by the district judge. Mr. Pruitt has discharged his duties as s special prosecutor for Hockley County, but a question has arisen concerning the applications of section 2.07(b) of the Code of Criminal Procedure. Does the statute prohibit Bockley County paying p. 3579 Honorable Gary A. Goff - Page 2 (J&763) Mr. Pruitt for his services performed in his private capacity as contracted? Prom the facts you have related we will assume that trial was in Hockley County for an offense alleged to have occurred in that county. Your conclusions that the county attorney of Terry County has authority to perform the duties of district attorney in Terry County, and that the office he holds does not fall within the provisions of the Professional Prosecutors Act, are supported by sections 45.323 and 46.002 of the Gove-nt Code. Your concern relative to the authority of the Hockley County Commissioners Court to pay the county attoruey of Terry County for his services as a special prosecutor in Hockley County is prompted by 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 disqualified to 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 instance where there is no attorney for the state, the judge of the court in which he repre- sents the state may appoint any competent attorney to perform the duties of the office during the absence or disqualification of 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 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 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 manuer 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 s criminal district attorney. (Emphasis added). p. 3580 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 attorney may be drawn. It contemplates that any one individual will be either an attorney for the state or not au attorney for the state. One persoa cannot be in both classes at the same time even if he maintains a private practice during his term as county attorney. Section 41.004 of the Government Code prohibits a county attorney from receiving compensation to prosecute any 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); Attorney General Opinion Mb'-483 (1982). In counties not subject to the Professional Prosecutors Act, a county attorney geuerally may receive compensation for performing services, whether for the county for whom he is au officer or for someoue else, where no duty to perform such services is imposed by law. See Lattixore v. Tartaut County. 124 S.W. 205 (Tex. Civ. App. 1909. nowrit); Browning v. Tarrant County. 111 S.W. 748 (Tex. Civ. App. 1908. no writ). The attoruey of one county is under no general legal obligation to act as attorney pro tom for mother county; therefore, absent some specific prohibition that acts as an exception to this general rule, a county attorney of oue county acting as attorney pro tern for another county would not be prohibited from receiving compensation for performing such services. Article 2.07 of the Code of Criminal Procedure acts as such an exeption. Under article 2.07, if the appointee is an attorney for the state, he will not receive additional compensation for serving a special prosecutor. If on the other hand, he is not au attorney for the state, he may receive compensation for his service. An "attorney for the state" includes a county attorney. Code Grim. Proc. art. 2.07(d). Mr. Pruitt, the attorney for Terry County, is therefore au attorney for the state who is not entitled to additional compensation for service as a prosecutor. When the appointed attorney is su attorney for 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 compensation for performing those additional duties. By enacting these conditions, the legislature may have intended to avoid possible violations of article XVI, section 40 of the Texas Constitution, which provides that: Ro person shall hold or exercise at the same time, more than oue civil office of emolument. . . . Tex. Const. art. XVI, 940. See Texas Turnpike Authority v. Shepperd. 279 S.W.2d 302 (Tax. 1955) (provision naming highway commissioners as uncompensated ox-officio directors of toll road authority does not p. 3581 , 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 p. 3582