Office of the Attorney General, 060319 TXAGO, AGO RQ-290-KP

• Case Date: June 03, 2019
• Court: Texas

Office of the Attorney General AGO RQ-290-KP No. RQ-0290-KP Texas Attorney General Opinion June 3, 2019           Angela Albers Wood County District Attorney           Joe Shearin Wood County Pro Tem          Office of the Attorney General          Attention Opinion Committee          P.O. Box 12548          Austin, Texas 78711-2548          Re: Request for Opinion regarding payment of district attorney pro tern          Dear General Paxton:          This law firm represents Wood County, Texas and Wood County Auditor Terri Sellars regarding this request for an Attorney General's Opinion. Auditor Sellars respectfully requests an Attorney General Opinion from your office on the following matters:

1. Does Code of Criminal Procedure § 26.05(c) require the County to pay a District Attorney pro tern $275.00 per hour when the County's Fee Schedule calls for $75.00 per hour?

2. Does Code of Criminal Procedure §§ 2.07(c) and 26.05(c) require the County to pay a person for work performed after he was appointed as District Attorney pro tern, but before the elected District Attorney was recused, and before the person took the oath of office and filed it with the clerk of the court?

3. Does the opt-out provision in Wood County's Fee Schedule run afoul of the plain language of Article 26.05 of the Code of Criminal Procedure?

4. Does the law require the County to pay a District Attorney pro tern for work performed in cases in which the order appointing the pro tern and/or the oath of office were not filed with the clerk of the court?

         I. BACKGROUND INFORMATION          On January 1, 2014, District Judge G. Timothy Boswell and County Judge Bryan Jeanes entered an Amended Standing Order Regarding Fee Schedule for Court-Appointed Attorneys in Wood County, Texas ("Fee Schedule"). See Exhibit A. In relevant part, the Fee Schedule calls for court-appointed attorneys in non-capital felony cases, disposed of by trial, to be paid $75.00 per hour. Id. The Order allows payment of all hours actually spent in trial, plus an equal number of additional hours for trial preparation. Id. The Fee Schedule contains a note on the bottom that reads, "The Court may adjust fees upward for extraordinary circumstances!" Id.          A. Time Period in Which Joe Shearin Worked as District Attorney Pro Tern Before District Attorney Jim Wheeler was Recused and Before Shearin Took and Filed an Oath of Office          On March 16, 2017, District Judge Jeff Fletcher entered an "Order Appointing Attorney Pro Tern" which appointed Joe Shearin^[1] ("Shearin") as District Attorney pro tern to "investigate matters related to the shooting of William Forrester, et al." See Exhibit B. The Order did not set forth the rate at which Shearin or his investigator were to be paid. See Id. At the time this Order was entered, former DA Jim Wheeler was neither recused, absent, disqualified, nor otherwise unable to perform the duties of his office. Shearin did not file a pro tern oath of office with the clerk of the court.          During this time period, Joe Shearin presented a criminal case against William Tucker to the Grand Jury and Tucker was indicted on six counts. For work performed during this time period - when Shearin worked as a pro tern, before the DA was recused and before Shearin took and filed an Oath of Office - Shearin submitted invoices to Wood County reflecting a rate of $275.00 per hour and totaling $83,027.18.          B. Time Period in...