In Texas, does a county attorney pro tem have the same power as a regular county attorney to file and sign a criminal information?

Texas AG Opinion JM-925: What Powers Does a County Attorney Pro Tem Have?

Plain-English summary

Small counties sometimes lose their prosecutor. The office falls vacant, or the sitting county attorney has a conflict, and someone has to step in to handle criminal cases. Texas law lets a judge, or in this instance two counties by agreement, put a substitute prosecutor in place. That substitute is called an attorney for the state "pro tem," which is just Latin for "for the time being." The question this opinion answers is a practical one: does that temporary prosecutor have the same authority as the elected one, or is he somehow a lesser figure who can only do part of the job?

The Somervell County attorney had agreed to cover for neighboring Bosque County, whose county attorney office was vacant, and he wanted to know exactly what he could and could not do. The Attorney General's answer, running through six specific questions, comes down to one idea: a county attorney pro tem is a full stand-in. He carries all the powers and all the duties of the regular county attorney for as long as he serves. The fact that his service is temporary does not shrink his authority; it just limits how long it lasts.

That principle settles most of the questions. Can he prosecute a misdemeanor on a complaint alone, skipping the formal charging document called an information? No. State law only allows trial on a complaint alone in a county that has no county attorney, and here the county does have one, the pro tem. So he must prepare and file an information just like any county attorney. Can he sign that information himself? Yes, and he should, but the document has to state on its face the authority under which he is signing, meaning it needs to show that the judge appointed him to represent the state. The Attorney General also confirmed that the district attorney being willing to pitch in does not knock the county attorney pro tem out of his role, that the judge should enter an order appointing him in each case, and that the agreement between the two counties does not have to be signed again every term of court.

Currency note

This opinion was issued in 1988. Later statutes, court decisions, and 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 mentioned here.

The Code of Criminal Procedure provisions on attorneys for the state pro tem have been amended and reworked since this opinion came out at the end of the 1980s. Article 2.07 in particular has seen changes to how and when a pro tem is appointed, the oath and compensation rules, and the disqualification and recusal procedure, and Texas courts have written a good deal of case law on when appointment of a pro tem is proper. The core idea here, that a properly appointed attorney pro tem carries the full powers and duties of the office for the time he serves, has held up well, but the mechanics of appointment and the exact statutory language have moved. Anyone relying on this today should read the current version of the statute rather than the version quoted in this opinion.

Who this opinion affected (as of 1988)

County and district attorneys pro tem: The opinion confirmed that a properly appointed pro tem holds the full powers and duties of the office, must file an information where one is normally required, and may sign it, provided the document reflects the authority under which he acts.

Judges: The opinion made clear the judge should enter an order appointing the attorney pro tem in each case, even where a standing inter-county agreement exists, because article 2.07(a) ties the appointment to the specific case or proceeding.

Counties sharing a prosecutor: The opinion confirmed that two counties can contract for one county's attorney to serve the other under article 2.07, that the covering county can be reimbursed, and that the agreement need not be renewed each term of court.

Common questions

What is a county attorney pro tem?
A pro tem is a substitute prosecutor who fills in when the regular attorney for the state is disqualified, absent, unable to serve, or where the office is vacant. "Pro tem" means "for the time being," so the person serves on a temporary basis but, while serving, carries the full duties of the office.

Can a pro tem prosecute a misdemeanor without filing an information?
No. State law allows a misdemeanor to be tried on a complaint alone only in a county that has no county attorney. A county being served by a pro tem does have a county attorney, so the pro tem must prepare and file an information the same as any county attorney would.

Who signs the charging document?
The county attorney pro tem signs it. The information has to show on its face the authority under which he acts, meaning it should reflect that the presiding judge appointed him to represent the state in that case.

Does the district attorney's willingness to help push the pro tem aside?
No. The district attorney and the county attorney have overlapping duties by statute, but the district attorney's willingness to perform a county attorney's duty does not preempt or displace the county attorney pro tem's authority.

Does the agreement between the two counties have to be renewed every term of court?
No. Nothing in article 2.07 puts a term-of-court limit on an agreement between counties, so the agreement stays in force until the parties end it, though the judge should still enter an appointment order in each individual case.

Background and statutory framework

The request came from the Somervell County attorney, who was also acting as county attorney for Bosque County under an agreement the two counties entered pursuant to section 2.07 of the Code of Criminal Procedure, as amended by the 70th Legislature (Acts 1987, 70th Leg., ch. 918, § 2). Article 2.07 lets the judge of the court in which the attorney for the state represents the state appoint a competent attorney to perform the duties of the office during the absence or disqualification of the attorney for the state, or where there is no attorney for the state. The 1987 amendment added language letting a commissioners court contract with another commissioners court to pay expenses and reimburse compensation paid to an appointed attorney for the state, and added a subsection governing recusal for good cause.

On the first question, article 2.05 provides that in misdemeanor cases the attorney shall prepare an information based on the complaint and file it, "provided, that in counties having no county attorney, misdemeanor cases may be tried upon complaint alone, without an information." Whether a pro tem may prosecute on complaint alone therefore turns on whether the county is "having no county attorney." The Attorney General relied on State v. Lackey, 35 Tex. 357 (1872), an 1872 Texas Supreme Court case holding that an attorney pro tem has all the powers and duties of the regular prosecuting attorney, consistent with the statutory language directing the appointed attorney to "perform the duties of the office during the absence or disqualification" of the attorney for the state, and with the ordinary meaning of "pro tem" as one who acts as a substitute on a temporary basis (Black's Law Dictionary 1101 (5th ed. 1979); see also Scherff v. Missouri Pac. Ry. Co., 17 S.W. 39 (1891)). The only real limitation on a pro tem, as against an attorney serving for a term, is that the pro tem acts only "for the time being"; while serving, he must fulfill the responsibilities of the county attorney, so his more limited tenure does not relieve him of the duty to file an information.

On the second question, article 21.21 provides that the information must be signed by the district or county attorney, officially, and the information must be signed by the attorney and show on its face the authority under which the attorney acts (Flores v. State, 264 S.W.2d 952 (Tex. Crim. App. 1954)). The 1987 amendment allowing Bosque County to reimburse Somervell County does not abrogate article 2.07(a)'s requirement that the judge, in any case or proceeding in which the pro tem represents the state, appoint him to perform the duties of county attorney. The information should be signed by him as county attorney pro tem and reflect that the presiding judge appointed him to represent the state. The third question, whether the district attorney may sign the information, was rendered moot by the conclusion that the pro tem may sign it.

On the fourth question, articles 2.01 and 2.02 describe the duties of the district attorney and the county attorney respectively, including the county attorney's duty to represent the state in criminal cases in courts below the grade of district court and, in the absence of the district attorney, to represent the state alone. The fact that the district attorney may be willing to perform a duty imposed on the county attorney by article 2.02 does not preempt the authority of the county attorney pro tem. On the fifth question, because article 2.07(a) authorizes the judge to appoint an attorney to perform the duties of the office in "any case or proceeding," the judge presiding in the court in which the pro tem represents the state should enter an order appointing him to represent the state in each case. On the sixth question, nothing in article 2.07 places a term limitation on an agreement between counties, and because the contract authorized by article 2.07 is not limited to a term of court, it need not be renewed at each term.

Citations

Statutory authority:

• Code of Criminal Procedure article 2.07 (attorney for the state pro tem; appointment by the judge during absence, disqualification, or vacancy), as amended by Acts 1987, 70th Leg., ch. 918, § 2 (reimbursement between commissioners courts; recusal for good cause)
• Code of Criminal Procedure article 2.05 (misdemeanor may be tried on complaint alone only in a county having no county attorney)
• Code of Criminal Procedure article 2.01 (duties of the district attorney)
• Code of Criminal Procedure article 2.02 (duties of the county attorney)
• Code of Criminal Procedure article 21.21 (information must be signed by the district or county attorney)

Cases (all Texas state courts):

• State v. Lackey, 35 Tex. 357 (1872) (Texas Supreme Court; an attorney pro tem has all the powers and duties of the regular prosecuting attorney)
• Scherff v. Missouri Pac. Ry. Co., 17 S.W. 39 (1891) (Texas court; nature of service on a pro tem basis)
• Flores v. State, 264 S.W.2d 952 (Tex. Crim. App. 1954) (Texas Court of Criminal Appeals; the information must show on its face the authority under which the attorney acts)

Secondary authority: Black's Law Dictionary 1101 (5th ed. 1979) (definition of "pro tem").

Source

• Landing page: https://www.texasattorneygeneral.gov/opinions/jim-mattox/jm-925
• Original PDF: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1988/jm0925.pdf

Original opinion text

Best-effort transcription from a scanned PDF. Minor OCR errors may remain; the linked PDF is authoritative. Systematic scan substitutions (for example "pro tem" rendered "pro tern," "Bosque" rendered "Bosgue," and letter swaps in the quoted amendment) have been corrected for readability.

THE ATTORNEY GENERAL OF TEXAS

June 28, 1988

Honorable Tim Rudolph
Somervell County Attorney
P. O. Box 647
Meridian, Texas 76665

Opinion No. JM-925

Re: Powers and duties of a county attorney pro tem under article 2.07 of the Code of Criminal Procedure (RQ-1355)

Dear Mr. Rudolph:

You advise that you are currently the county attorney of Somervell County. The office of county attorney of Bosque County is vacant. The two counties have entered into an agreement pursuant to section 2.07 of the Code of Criminal Procedure[1] as amended by the 70th Legislature whereby Bosque County will compensate Somervell County for your performing the functions of county attorney for Bosque County.

[1] Section 2.07 of the Code of Criminal Procedure was amended by amending subsection (b) and adding subsection (b-1) by Acts 1987, 70th Leg., ch. 918, section 2, at 6239, effective August 31, 1987 to read as follows:

(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. (Emphasis added to reflect changes made by amendment.)

You advise that the agreement between the two counties has prompted the questions you have submitted. You have furnished this office with copies of the agreement and an information signed by you that are relevant to your questions. You ask:

1. Do we need an information signed in order to prosecute, or does article 2.05, Code of Criminal Procedure, allow us to prosecute on complaint only?

2. Who is authorized to sign the information if one is needed? Article 21.21 of the Code of Criminal Procedure states that the charging instrument must be signed by the county or district attorney. May I sign as a county attorney pro tem provided I list the authority by which I sign?

3. If a county attorney pro tem cannot sign an information and if an information is needed to prosecute, can the district attorney sign it? If the district attorney does sign the information, who can prosecute?

4. If the district attorney is willing to act as a prosecuting attorney in county court, does this pre-empt the authority of the county attorney pro tem?

5. Does the Judge under article 2.07 of the Code of Criminal Procedure need to enter an order of appointment in each case or is the agreement at enclosure no. 1 sufficient for all cases?

6. If the agreement is sufficient for all cases, should it be renewed at each term of court?

Your first question appears to relate to the provision in article 2.05 of the Code of Criminal Procedure permitting the trial of misdemeanors upon complaint in counties having no county attorney. Article 2.05 provides in pertinent part, as follows:

If the offense be a misdemeanor, the attorney shall forthwith prepare an information based upon such complaint and file the same in the court having jurisdiction; provided, that in counties having no county attorney, misdemeanor cases may be tried upon complaint alone, without an information . . . (Emphasis added.)

The answer to your inquiry as to whether a county attorney pro tem may prosecute upon complaint in instances where an information is normally required turns on whether the county is considered as "having no county attorney." An opinion in an 1872 Texas Supreme Court case, State v. Lackey, 35 Tex. 357, held that an attorney pro tem has all the powers and duties of the regular prosecuting attorney. This holding appears to be consistent with the definition of "pro tem" and the language of the statute providing that the appointed attorney "perform the duties of the office during the absence or disqualification for the state." Black's Law Dictionary 1101 (5th ed. 1979) defines pro tem, as follows:

Abbreviation for 'pro tempore' which means, literally, for the time being. Hence, one who acts as a substitute on a temporary basis is said to serve pro tem.

The foregoing definition provides a common thread running through the cases, see, e.g., Scherff v. Missouri Pac. Ry. Co., 17 S.W. 39 (1891), addressing the matter of an official who serves on a pro tem basis. It appears that the only limitation on the powers and duties of a county attorney pro tem as contrasted with an attorney who serves for a term is that the pro tem acts only "for the time being." While the pro tem acts as the county attorney he is required to fulfill the responsibilities imposed upon the county attorney. Thus, the county attorney pro tem is not relieved of the responsibility of filing an information merely because his time of service in such position may be somewhat more limited than that of a county attorney who serves for a term.

You ask who is authorized to sign the information. Article 21.21 of the Code of Criminal Procedure provides that the information "must be signed by the district or county attorney, officially." The information must be signed by the attorney and show on its face the authority under which the attorney acts. Flores v. State, 264 S.W.2d 952 (Tex. Crim. App. 1954). The amendment to section (b) allows the commissioners court of Bosque County to reimburse Somervell County. It does not abrogate the requirement of section (a) that the judge in any case or proceeding in which you represent the state appoint you to perform the duties of county attorney. The information should be signed by you as county attorney pro tem and reflect the fact that the judge presiding in that court has appointed you to represent the state.

Your third question is rendered moot by our conclusion that the county attorney pro tem may sign the information.

Your fourth question is predicated upon the district attorney being "willing to act as prosecuting attorney in county court." You ask whether the authority of the county attorney pro tem is preempted under this scenario.

Article 2.01 of the Code of Criminal Procedure delineates the responsibilities of the district attorney in representing the state. Article 2.01 provides in pertinent part as follows:

Each district attorney shall represent the State in all criminal cases in the district courts of his district and in appeals therefrom, except in cases where he has been, before his election, employed adversely. When any criminal proceeding is had before an examining court in his district or before a judge upon habeas corpus, and he is notified of the same, and is at the time within his district, he shall represent the State therein, unless prevented by other official duties.

Article 2.02 of the Code of Criminal Procedure sets forth the duties of county attorneys, as follows:

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. He shall represent the State in cases he has prosecuted which are appealed.

The fact that the district attorney may be willing to perform any duty imposed upon the county attorney by article 2.02 does not preempt the authority of the county attorney pro tem.

You ask if it is necessary for the judge to enter an order of appointment for each case. The contract entered into by the counties provides that you perform the duties ordinarily associated with the office of county attorney in Bosque County and that such agreement exist until terminated by any party to the contract. Article 2.07(a) provides that "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 office during the absence. . . ." The judge presiding in the court in which you represent the state should enter an order appointing you to represent the state in each case.

In your final question you ask if it is necessary for the agreement between the counties to be renewed at each term of court. Nothing in article 2.07 places any term limitation upon an agreement between counties. Since the contract authorized by article 2.07 is not limited to a term of court it is not necessary for the agreement to be renewed at each term.

SUMMARY

The county attorney pro tem serving pursuant to an agreement entered into by Somervell and Bosque Counties is not relieved of the requirement to file an information because his time of service may be somewhat more limited than that of the county attorney who serves for a term. A county attorney pro tem may sign an information. The information must reflect on its face the authority under which the county attorney pro tem serves. The fact that the district attorney may be willing to perform any duty imposed upon the county attorney by article 2.02 does not preempt any authority of the county attorney pro tem. The judge in the court in which the county attorney pro tem represents the state should enter an order in each case appointing him to represent the state. It is not necessary for the commissioners courts of Somervell and Bosque Counties to renew the contract at each term of court.

Very truly yours,

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

RICK GILPIN
Chairman, Opinion Committee

Prepared by Tom G. Davis
Assistant Attorney General