Can a Texas county attorney get paid extra for acting as a special prosecutor for the district attorney?

Plain-English summary

The Gaines County Auditor wrote the AG after receiving a letter from the District Attorney for the 106th Judicial District directing him to pay $500 to the Gaines County Attorney. The payment was for services the county attorney rendered on July 1, 2016, as a "special prosecutor" representing the State in various Gaines County district court proceedings. The district attorney, not the court, had made the appointment. The county attorney himself thought he was not entitled to the money, while the district attorney disagreed, so the auditor asked the AG who was right.

The AG started with the county attorney's basic duties. Article 2.02 of the Code of Criminal Procedure requires a county attorney to represent the State in criminal cases in the county and, in the district attorney's absence, to represent the State alone, and to aid the district attorney in district court prosecutions when requested. Because the statute uses "shall," it imposes a duty rather than granting an option. The AG then pointed to two rules that bar extra pay for doing that duty: a Government Code provision that forbids a district or county attorney from taking a fee or reward to prosecute a case he is required by law to prosecute, and article III, section 53 of the Texas Constitution, which prohibits paying any extra compensation to a public officer after the service has been rendered. Put together, since representing the State in the county's district court is already the county attorney's duty, he could not be paid additional compensation for it.

The AG also addressed the labels in the request. The auditor had referenced article 2.07, which lets a court appoint an attorney pro tem when the regular attorney for the State is disqualified, absent, or unable to perform. But article 2.07 itself says that if the appointed attorney is already an attorney for the State, he is not entitled to additional compensation, and a county attorney is an attorney for the State. The district attorney had called the appointee a "special prosecutor," and the AG noted that "attorney pro tem" and "special prosecutor" are sometimes used interchangeably but are fundamentally different positions: an attorney pro tem is appointed by the court under article 2.07, while a special prosecutor participates in a case at the request of the prosecuting attorney. A district attorney can employ and pay assistant prosecuting attorneys, but the AG found no statute that would let the district attorney pay a county attorney extra for performing the article 2.02 duty. The bottom line was the same under every route: no extra compensation.

Currency note

This opinion was issued in 2017. 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.

What the opinion meant for those who asked

The requesting county auditor (as the opinion described it): The opinion answered the auditor's question directly, concluding that the county attorney was not entitled to the directed payment, which is the question of whether the auditor should pay it.

County attorneys (as the opinion described them): The opinion treated representing the State in the county's district court, alone or in aid of the DA on request, as a duty under article 2.02, and explained that they may not receive extra compensation for performing it.

District attorneys (as the opinion described them): The opinion recognized a DA's authority to employ and pay assistant prosecuting attorneys, but said it was aware of no statute letting a DA provide additional compensation to a county attorney for the article 2.02 duty.

Common questions

Can a county attorney be paid extra for helping the DA prosecute a case in district court?
Under this opinion, no. The opinion treated that work as a duty already imposed by article 2.02 of the Code of Criminal Procedure, so extra pay was barred.

What rules block the extra payment?
The opinion cited a Government Code provision against taking a fee to prosecute a case one is required to prosecute, and article III, section 53 of the Texas Constitution, which bars extra compensation to a public officer after services are rendered.

Is a "special prosecutor" the same as an "attorney pro tem"?
The opinion said the terms are sometimes used interchangeably but are fundamentally different. An attorney pro tem is appointed by the court under article 2.07; a special prosecutor participates at the prosecuting attorney's request.

Could the appointment under article 2.07 change the answer?
No. The opinion noted that even under article 2.07, an appointed attorney who is already an attorney for the State, such as a county attorney, is not entitled to additional compensation.

Background and statutory framework

Article 2.02 of the Code of Criminal Procedure sets the county attorney's duties, requiring him to represent the State in criminal cases in the county, to represent the State alone in the district attorney's absence, and, when requested, to aid the district attorney in district court prosecutions (Tex. Code Crim. Proc. art. 2.02). The word "shall" imposes a duty unless context necessarily requires otherwise (Tex. Gov't Code § 311.016(2)). A district or county attorney may not take a fee, compensation, reward, or gift to prosecute a case he is required by law to prosecute (Tex. Gov't Code § 41.004), and the Constitution prohibits paying extra compensation to a public officer after service has been rendered (Tex. Const. art. III, § 53).

Article 2.07 authorizes a court to appoint an attorney pro tem when an attorney for the state is disqualified, absent, or unable to perform, but provides that an appointed attorney who is also an attorney for the state is not entitled to additional compensation (Tex. Code Crim. Proc. art. 2.07(a), (b), (d); Tex. Att'y Gen. Op. No. JM-763 (1987)). The terms "attorney pro tem" and "special prosecutor" are sometimes used interchangeably but describe fundamentally different positions, the first appointed by the court and the second participating at the prosecuting attorney's request (Coleman v. State, 246 S.W.3d 76, 82 n.19 (Tex. Crim. App. 2008)). A district attorney may employ and fix the compensation of assistant prosecuting attorneys, but no statute permits paying a county attorney extra for performing the article 2.02 duty (Tex. Gov't Code §§ 41.102, .106).

Citations

Constitutional and statutory provisions:

• Tex. Const. art. III, § 53
• Tex. Code Crim. Proc. arts. 2.02, 2.07(a), 2.07(b), 2.07(b), (d)
• Tex. Gov't Code §§ 311.016(2), 41.004, 41.102, .106

Texas Attorney General opinions:

• Tex. Att'y Gen. Op. No. JM-763 (1987)

Cases:

• Coleman v. State, 246 S.W.3d 76 (Tex. Crim. App. 2008)

Source

• Landing page: https://www.texasattorneygeneral.gov/opinions/ken-paxton/kp-0130
• Original PDF: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/2017/kp0130.pdf

Original opinion text

Best-effort transcription from the official PDF. Minor extraction artifacts were corrected; the linked PDF is authoritative.

KEN PAXTON
ATTORNEY GENERAL OF TEXAS

January 18, 2017

Mr. Rick Dollahan Opinion No. KP-0130
Gaines County Auditor
Post Office Box 847 Re: Whether a county attorney who is
Seminole, Texas 79360 appointed to serve as a special prosecutor may
be paid additional compensation (RQ-0120-KP)

Dear Mr. Dollahan:

    You ask whether a county attorney who is appointed by a district attorney to serve as a special prosecutor may be paid additional compensation. [1] You inform us that you received a letter from the District Attorney for the 106th Judicial District directing payment of $500 to the Gaines County Attorney for services rendered on July 1, 2016 as a "special prosecutor" representing the State in various Gaines County district court proceedings. Request Letter at 1. You further state that the district attorney, not the court, appointed the county attorney to serve as a special prosecutor. Id. You inform us that the county attorney believes that he is not entitled to the payment, but the district attorney disagrees. Id. at 2.

    Article 2.02 of the Code of Criminal Procedure sets forth duties of a county attorney:

            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.

TEX. CODE CRIM. PROC. art. 2.02. Article 2.02 imposes a duty on a county attorney to represent the State in criminal cases in district court, whether alone when the district attorney is absent, or in aid of the district attorney upon the district attorney's request. Id.; see also TEX. GOV'T CODE § 311.016(2) (stating the rule of statutory construction that the word "'shall' imposes a duty" unless context necessarily requires otherwise). However, a district or county attorney may not "take from any person a fee, article of value, compensation, reward, or gift ... to prosecute a case that he is required by law to prosecute." TEX. GOV'T CODE § 41.004. Further, article III, section 53 of the Constitution prohibits the payment of "any extra compensation, fee or allowance to a public officer, agent, servant or contractor, after service has been rendered." TEX. CONST. art. III, § 53. Thus, because a county attorney has a duty under article 2.02 of the Code of Criminal Procedure to represent the State in the district court of the county, the county attorney may not receive additional compensation for doing so.

    You reference article 2.07 of the Code of Criminal Procedure. Request Letter at 2. Article 2.07 authorizes a court to appoint an attorney pro tem "[w]henever 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." TEX. CODE CRIM. PROC. art. 2.07(a). However, "if the appointed attorney is also an attorney for the state," the appointed attorney "is not entitled to additional compensation." Id. art. 2.07(b). Because a county attorney is an attorney for the State, a county attorney appointed under article 2.07(b) may not receive additional compensation for services as an attorney pro tem. Id. art. 2.07(b), (d); see also Tex. Att'y Gen. Op. No. JM-763 (1987) at 4 (determining that article 2.07 prevents a county attorney from receiving compensation as an appointed attorney for the State).

    You also state that the district attorney specified that the county attorney should be compensated as a "special prosecutor." Request Letter at 1. The terms "attorney pro tem" and "special prosecutor" are sometimes used interchangeably, but the positions are fundamentally different. Coleman v. State, 246 S.W.3d 76, 82 n.19 (Tex. Crim. App. 2008) (distinguishing an article 2.07 attorney pro tem from a special prosecutor). While article 2.07 of the Code of Criminal Procedure governs the appointment of an attorney pro tem, a special prosecutor participates in a particular case at the request of the prosecuting attorney. Id. A district attorney possesses the authority to employ and compensate assistant prosecuting attorneys, but we are not aware of any statute that would permit the district attorney to provide additional compensation to a county attorney for performing a duty required by article 2.02 of the Code of Criminal Procedure. See TEX. GOV'T CODE §§ 41.102, .106 (stating a district attorney's authority to employ and fix the compensation of assistant prosecuting attorneys). Accordingly, a county attorney is not entitled to receive extra compensation for representing the State in a criminal matter in the county's district court at the request of the district attorney.

                                SUMMARY

                  A county attorney is not entitled to receive extra compensation for representing the State in a criminal matter in the county's district court at the request of the district attorney.

                                       Very truly yours,

                                       KEN PAXTON
                                       Attorney General of Texas

JEFFREY C. MATEER
First Assistant Attorney General

BRANTLEY STARR
Deputy First Assistant Attorney General

VIRGINIA K. HOELSCHER
Chair, Opinion Committee

WILLIAM A. HILL
Assistant Attorney General, Opinion Committee

[1] See Letter from Mr. Rick Dollahan, Gaines Cty. Auditor, to Honorable Ken Paxton, Tex. Att'y Gen. at 1 (July 21, 2016), https://www.texasattorneygeneral.gov/opinion/requests-for-opinion-rqs ("Request Letter").