Can a Texas judge appoint a temporary district attorney if the office already has an assistant district attorney?

Texas AG Opinion JM-1246: Can a Judge Appoint a District Attorney Pro Tem When an Assistant DA Is Already in Place?

Plain-English summary

The district attorney of Comal County wrote to the Attorney General with a practical problem. The elected district attorney had been called to active military duty because of the Middle East situation, and the question was who could prosecute in his absence. Article 2.07 of the Code of Criminal Procedure lets the judge of a court appoint a "district attorney pro tem" (a temporary, fill-in prosecutor) whenever the regular attorney for the state is disqualified, absent from the county or district, or otherwise unable to perform the duties of the office. The Comal County DA asked whether the judge could still make that appointment when an assistant district attorney was already on staff.

The Attorney General answered yes. The key was the statute's own definition. Article 2.07(d) defines "attorney for the state" as "a county attorney, a district attorney, or a criminal district attorney." An assistant district attorney is not on that list. The opinion relied on a 1979 opinion of the office, Opinion MW-80, which had already worked through the point: an assistant district attorney is appointed by, and can be removed by, the elected district attorney, so an assistant is not the "attorney for the state" the statute is talking about. If assistants counted, the statute would let a judge appoint an assistant district attorney pro tem, which the Court of Criminal Appeals had said the predecessor statute did not allow, in Locklin v. State, 75 S.W. 305 (Tex. Crim. App. 1903). It would also collide with article 332a, V.T.C.S., which lets the prosecuting attorney choose his own assistants.

Because an assistant district attorney is not an "attorney for the state," the assistant does not automatically step into the elected DA's shoes, and the assistant's presence "makes no difference for purposes of article 2.07." The elected district attorney's absence from the county meant he was "absent from the county or district," which is exactly one of the triggers in article 2.07(a). So the district judge could appoint a district attorney pro tem.

The opinion drew one boundary. Article 2.07 covers only temporary inability, not a permanent vacancy. Filling a true vacancy in the office of district attorney belongs to the Governor under article IV, section 12 of the Texas Constitution. Reading article 2.07 to reach vacancies would make it an unconstitutional usurpation of the Governor's appointment power, so the opinion read the statute as limited to situations where a sitting district attorney is temporarily unable to serve.

Currency note

This opinion was issued in 1990. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

(Note: article 2.07 has been amended since this opinion, including changes to who may serve as an attorney pro tem. This page describes the law as it stood at the time of the opinion.)

Who this opinion affected (as of 1990)

District judges: The opinion confirmed that a judge's power to appoint a district attorney pro tem under article 2.07 turned on whether the elected district attorney was disqualified, absent, or otherwise unable to serve, not on whether an assistant district attorney happened to be on staff. An assistant's presence did not remove the judge's authority to appoint.

Assistant district attorneys: The opinion reinforced that an assistant is not an "attorney for the state" under article 2.07. An assistant did not automatically become acting district attorney when the elected DA was absent, and a judge could appoint a pro tem over the top of an existing assistant.

Elected district attorneys called away (including for military service): For a DA absent from the county on active duty, the opinion meant the court could keep prosecutions moving by naming a pro tem, without treating the office as vacant.

The Governor's office: The opinion kept article 2.07 clear of the Governor's constitutional power to fill an actual vacancy in the district attorney's office under article IV, section 12. A temporary appointment by a judge and a vacancy appointment by the Governor addressed different situations.

Common questions

Who prosecutes when the elected district attorney is absent or unable to serve?
Under this opinion, a district judge could appoint a "district attorney pro tem" under article 2.07 of the Code of Criminal Procedure to perform the duties of the office during the absence or disqualification.

Does having an assistant district attorney already on staff stop the judge from appointing a pro tem?
No. The opinion held that an assistant district attorney is not an "attorney for the state," so the assistant's presence made no difference to the judge's power to appoint a pro tem under article 2.07.

Why isn't an assistant district attorney an "attorney for the state"?
Because article 2.07(d) defines that term as a county attorney, a district attorney, or a criminal district attorney, and an assistant is none of those. An assistant is appointed by, and subject to removal by, the elected district attorney.

Could the judge use article 2.07 to fill a permanent vacancy in the office?
No. The opinion read article 2.07 to cover only temporary inability. Filling an actual vacancy in the district attorney's office belonged to the Governor under article IV, section 12 of the Texas Constitution.

Background and statutory framework

Article 2.07 of the Code of Criminal Procedure governs the appointment of an attorney pro tem. Subsection (a) provides that whenever the attorney for the state is disqualified to act, is absent from the county or district, is otherwise unable to perform the duties of the office, or where there is no attorney for the state, the judge of the court "may appoint any competent attorney to perform the duties of the office during the absence or disqualification of the attorney for the state." Subsection (d) defines "attorney for the state" as "a county attorney, a district attorney, or a criminal district attorney."

The requesting district attorney, writing from Comal County, explained that the elected district attorney had "been called to active duty because of the Middle East situation" and asked two things: whether "attorney for the state" in subsection (d) included an assistant district attorney, and whether article 2.07 barred the judge from appointing a pro tem when an assistant district attorney was already in place.

On the first question, the opinion agreed with its earlier Opinion MW-80 (1979), which had concluded that an assistant district attorney is not an attorney for the state within the meaning of article 2.07. Other statutes distinguish the district attorney (an elected official) from his assistants (appointed by and removable by the district attorney). If "attorney for the state" swept in assistants, the statute would let a court appoint an assistant district attorney pro tem, which the Court of Criminal Appeals had rejected under the predecessor statute in Locklin v. State, 75 S.W. 305 (Tex. Crim. App. 1903), and would conflict with article 332a, V.T.C.S., which lets the prosecuting attorney choose his own assistants.

On the second question, because an assistant district attorney is not an "attorney for the state," the assistant's presence made no difference. The elected district attorney's absence from the county was itself one of the statutory triggers, so a district judge could appoint a pro tem under subsection (a).

The opinion closed by separating article 2.07 from the Governor's constitutional appointment power. Article IV, section 12 of the Texas Constitution gives the Governor authority to fill a vacancy in the office of district attorney. Article 2.07 does not address vacancies; it reaches only instances where a district attorney is temporarily unable to perform the duties of the office. Construed otherwise, the opinion said, article 2.07 "would clearly be an unconstitutional usurpation of the Governor's authority to fill vacancies under article 4, section 12."

Citations

Constitutional and statutory authorities:

• Code of Criminal Procedure art. 2.07 (appointment of attorney pro tem; subsection (d) defines "attorney for the state")
• V.T.C.S. art. 332a (prosecuting attorney's authority to choose his own assistants)
• Tex. Const. art. IV, § 12 (Governor's power to fill a vacancy in the office of district attorney)

Cases:

• Locklin v. State, 75 S.W. 305 (Tex. Crim. App. 1903)

Prior Attorney General opinion relied on:

• Opinion MW-80 (1979) (an assistant district attorney is not an "attorney for the state" under article 2.07)

Source

• Landing page: https://www.texasattorneygeneral.gov/opinions/jim-mattox/jm-1246
• Original PDF: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1990/jm1246.pdf

Original opinion text

Best-effort transcription from a scanned PDF. Minor errors may remain, the linked PDF is authoritative.

November 14, 1990

Honorable Bill M. Reimer
District Attorney
Comal County, Texas
150 N. Seguin, Suite 307
New Braunfels, Texas 78130

Opinion No. JM-1246

Re: Authority of a district judge to appoint a district attorney pro tem under article 2.07 of the Code of Criminal Procedure where there is an assistant district attorney in place (RQ-2141)

Dear Mr. Reimer:

You have requested our opinion regarding the authority of a district judge to appoint a district attorney "pro tem," pursuant to article 2.07 of the Code of Criminal Procedure. The statute 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 disqualification of the attorney for the state.

    (b) Except as otherwise provided by this subsection, 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. Nothing herein shall prevent a commissioners court of a county from contracting with another commissioners court to pay expenses and reimburse compensation paid by a county to an attorney for the state who is appointed to perform additional duties.

    (b-1) An attorney for the state who is not disqualified to act may request the court to permit him to recuse himself in a case for good cause and upon approval by the court is disqualified.

    (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 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.

You indicate that the elected district attorney "has been called to active duty because of the Middle East situation."

You first ask whether the term "attorney for the state" as defined in section (d) includes an assistant district attorney. By its very terms, the statute does not apply to anyone except "a county attorney, a district attorney, or a criminal district attorney." In Attorney General Opinion MW-80 (1979), this office declared:

  We do not believe an assistant district attorney is an attorney for the state within the meaning of section 2.07. Other statutes distinguish between the district attorney and his assistants. The district attorney is an elected official. . . . The assistant district attorney is appointed by and subject to removal by the district attorney. . . . The definition of "attorney for the state" applies to all of article 2.07 of the Code of Criminal Procedure. If "attorney for the state" included assistants, then article 2.07 would permit the court to appoint an assistant district attorney pro tem. The Court of Criminal Appeals has, however, stated that the predecessor of article 2.07 did not authorize the judge to appoint an assistant district attorney. Locklin v. State, 75 S.W. 305 (Tex. Crim. App. 1903). Construing article 2.07 to authorize the appointment of an assistant district attorney would also bring it into conflict with article 332a, V.T.C.S., which permits the prosecuting attorney to choose his own assistants.

We agree with this analysis. In our opinion, "attorney for the state" as used in section (d) does not include an assistant district attorney.

You next ask whether article 2.07 precludes a judge from making an appointment thereunder if "an assistant district attorney is in place." Since, as we have indicated, an assistant district attorney is not an "attorney for the state" within the meaning of the statute, a district judge is permitted by the terms of section (a) to make the requisite appointment in the situation you pose. The elected district attorney's absence from the country necessarily means that that official "is absent from the county or district." The presence of an assistant district attorney makes no difference for purposes of article 2.07.

You also ask about the appointive power of a district judge under article 2.07 as it relates to the Governor's authority to appoint a district attorney. Article 4, section 12, of the Texas Constitution grants to the Governor the power to fill a vacancy in the office of district attorney. Article 2.07 does not address the situation of a vacancy. It refers only to those instances in which a district attorney is temporarily unable to perform the duties of his office. Were it to be construed otherwise, article 2.07 would clearly be an unconstitutional usurpation of the Governor's authority to fill vacancies under article 4, section 12.

                   SUMMARY

      A district judge is authorized to appoint a district attorney pro tem pursuant to article 2.07 of the Code of Criminal Procedure, even though there is an assistant district attorney in place.

                               JIM MATTOX
                               Attorney General of Texas

MARY KELLER
First Assistant Attorney General

LOU MCCREARY
Executive Assistant Attorney General

JUDGE ZOLLIE STEAKLEY
Special Assistant Attorney General

RENEA HICKS
Special Assistant Attorney General

RICK GILPIN
Chairman, Opinion Committee

Prepared by Rick Gilpin
Assistant Attorney General