Here's a conundrum that I recently discovered, and I'm hoping that one of you all in counties with bifurcated county attorneys and district attorneys can give some advice.

In Harris County, when our DA is disqualified, we use Article 2.07 of the Code of Criminal Procedure to either punt the case to the AG to handle, to bring in a prosecutor from another county, or to have the trial court appoint a local attorney to prosecute.

I recently discovered, however, that Article 2.02 of the Code of Criminal Procedure provides that "in the absence of the District Attorney [the county attorney] shall represent the State alone."

The Attorney General ruled in 1940 that, construing the predecessor statutes to Article 2.02 and 2.07 together, "it is clear that the Legislature has made it the duty, and it is likewise the right, of the county attorney to represent the State in the district court in the absence of the district attorney. In the absence of the district attorney, the duty and the authority to represent the State in the district court is conferred by the statutes upon the county attorney, and it is not contemplated, nor is it necessary, that the court should designate the county attorney as district attorney pro tem. It is only when the district attorney and the county attorney are absent that the court is authorized to appoint a district attorney pro tem." Tex. Att'y Gen. Op. O-2531 (1940) (emphasis added).

Does this mean that, if the district attorney is disqualified from proceeding in a county where there is a county attorney not similarly disqualified, the county attorney must assume jurisdiction to prosecute the DA's case?

If the answer is "yes," does it matter that the Harris County Attorney has "the primary duty ... to represent the State, Harris County, and the officials of Harris County in all civil matters pending" in the courts, seeTex. Gov't Code � 45.201, and does no criminal prosecution?

I immensely respect my friends in the Harris County Attorney's Office, so please do not take this question as any denigration of their ability to deal with pro tem responsibilities. I simply want to know if O-2531 is an accurate summation of the jurisdiction of the court to appoint pro tems.

Thanks!

Scott Durfee
General Counsel
Harris County District Attorney's Office

Art. 5, sec. 21 simply states that the respective duties of district and county attorneys shall in such counties be regulated by the Legislature. So far as I am aware only arts. 2.01 and 2.02 address the issue. Obviously you must be referring to a situation where the elected DA is disqualified and presumably all of his assistants are likewise disqualified, because the assistant DA would otherwise be able to proceed. Is a disqualified DA "absent"? (I guess that depends on whether you mean absent from the county or absent from the courtroom).

When the legislature drafted some of the statutes limiting the authority of certain county attorneys, e.g. sec. 45.201, Govt. Code, it made no provision for the situation where 2.02 might come back into play. But cf. sec. 45.179(e), 45.193(d). Unless the county attorney is demanding to play a role, I would certainly think you are safe in proceeding under art. 2.07.

Scott: I will check this out...The Trinity County Attorney made the argument at the legislature that when his DA, Joe Price, died, he had the job to represent the state, and no one needed to be appointed. The legislature rejected that and passed a statute that provides that the prison prosecution unit does the DA work until a new DA is appointed or elected.

We have DA's who recuse themselves all the time, and the court appoints a special -- not the county attorney. I can't imagine this practice being improper, but can't put my finger on the law at the moment....

Maybe Scott's query and the situation in Trinity County point out the need for a little tinkering with 2.02. These statutes are hardly models of clarity. I would say the Legislature has done a poor job of "regulation" as required by the Constitution.