BILL ANALYSIS

 

 

Senate Research Center	S.B. 2189
	By: Huffman
	State Affairs
	4/7/2017
	As Filed

 

 

 

AUTHOR'S / SPONSOR'S STATEMENT OF INTENT

 

The Code of Criminal Procedure and the Texas Government Code specify who may serve as an attorney pro tem. That is, who may stand in as an attorney for the state when such an attorney is disqualified to act in a case or proceeding, is absent from the county or district, or is otherwise unable to perform the duties of their office.

 

S.B. 2189 provides that only prosecutors (county attorneys with criminal jurisdiction, district attorneys, or criminal district attorneys�or their assistants) and assistant attorneys general may serve as attorneys pro tem.

 

As proposed, S.B. 2189 amends current law relating to the appointment of an attorney pro tem for certain criminal proceedings.

 

RULEMAKING AUTHORITY

 

This bill does not expressly grant any additional rulemaking authority to a state officer, institution, or agency.

 

SECTION BY SECTION ANALYSIS

 

SECTION 1. Amends Articles 2.07(a), (b), (b-1), and (d), Code of Criminal Procedure, as follows:

 

(a) Authorizes the judge of the court in which an attorney represents the state, under certain circumstances, to appoint, from any county or district, an attorney for the state, rather than appoint any competent attorney, to perform the duties of the office during the absence or disqualification of the attorney for the state. Makes nonsubstantive changes.

 

(b) Provides that, except as otherwise provided by this subsection, rather than except as otherwise provided by this subsection and if the appointed attorney is also an attorney for the state, the duties of the appointed office are additional duties of the appointed attorney�s present office, and the attorney is not entitled to additional compensation. Provides that this subsection does not 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 who is appointed to perform additional duties. Deletes existing text requiring nothing herein to 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) Authorizes an attorney for the state who is not disqualified to act to request the court to permit the attorney�s recusal, rather than permit him to recuse himself, in a case for good cause, and on approval by the court is disqualified. Makes nonsubstantive changes.

 

(d) Redefines �attorney for the state.�

 

SECTION 2. Amends Article 52.09(c), Code of Criminal Procedure, to provide that an attorney pro tem appointed under Article 52.01(d) (relating to requiring the district judge to appoint one attorney pro tem to assist in the proceeding under certain circumstances) is entitled to compensation in the same amount and manner as an attorney appointed to represent an indigent person, rather than provides that an attorney pro tem appointed under Article 52.01(d) of this code is entitled to compensation in the same manner as an attorney pro tem appointed under Article 2.07 (Attorney Pro Tem) of this code.

 

SECTION 3. Amends Section 574.004, Government Code, as follows:

 

Sec. 574.004. ASSISTANCE BY ATTORNEY GENERAL. Provides that this chapter (Dual Office Holding) does not prevent the Texas attorney general (attorney general) from providing assistance to certain attorneys on request by allowing assistant attorneys general to serve as duly appointed and deputized assistant prosecutors. Deletes existing text requiring that nothing in this chapter prevents the attorney general from providing assistance to certain attorneys on request by allowing assistant attorneys general to serve as duly appointed and deputized assistant prosecutors and requires that nothing in this chapter prohibit a certain appointment.

 

SECTION 4. Repealers: Articles 2.07(c) (relating to the qualification of the appointed attorney, if the appointed attorney is not an attorney for the state, to perform the duties of the office for a certain period), (e) (relating to providing that �attorney for the state� includes an assistant attorney general in certain subsections of this article), (f) (relating to providing that �competent attorney� includes an assistant attorney general in Subsection (a) of this article), and (g) (relating to authorizing a certain appointed attorney to be paid a reasonable fee for performing certain duties), Code of Criminal Procedure.

 

Repealer: Section 402.028(c) (relating to requiring that nothing in this section (Assistance to Prosecuting Attorneys) prohibits an assistant attorney general from appointment as attorney pro tem under certain provisions), Government Code.�

 

SECTION 5. Makes application of Article 2.07, Code of Criminal Procedure, as amended by this Act, prospective.

 

SECTION 6. Effective date: September 1, 2017.