October 18, 2019

Texas Attorney General

KP-0273               10/11/19

Issue:

Must a county compensate an attorney who assists with a prosecution without filing an oath of office and before the district attorney seeks recusal?

Conclusion:

An attorney who assists with a case prior to the district attorney’s recusal or other inability to perform the duties of office serves in the capacity of a special prosecutor, rather than an attorney pro tem, and may qualify for compensation in that capacity. Upon the recusal of the district attorney, the court may appoint a pro tem. For an attorney pro tem appointed prior to September 1, 2019, Code of Criminal Procedure Art. 2.07 required a county to compensate the pro tem in accordance with a fee schedule stating reasonable fixed rates or minimum and maximum hourly rates. Given that the Legislature required limits on fees and prohibited payment outside of those limitations, a provision in a fee schedule permitting an award of fees outside the statutory limits is invalid. Read Opinion.

Commentary:

This opinion is relevant only to those attorneys pro tem who were appointed prior to September 1, 2019. On or after that date, the only individuals who can serve as attorneys pro tem are prosecuting attorneys in another jurisdiction. As such, this opinion is of limited value. But it is helpful in that it briefly explains the difference between an attorney pro tem and a special prosecutor (they are not the same thing). With regard to the attorney pro tem side of the question, this opinion essentially repeats the holdings issued by the Court of Criminal Appeals several months ago in State ex rel. Wice v. Fifth Court of Appeals.

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