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Houston Criminal Defense Attorney - Texas Code of Criminal Procedure Blog Art. 2.02 County Attorneys

Houston Criminal Defense Attorney - Brian Foley - Board Certified in Criminal Law


Today's code of criminal procedure section is Article 2.02 covers the duties of County Attorneys. Many people don't realize this but County Attorneys often have criminal jurisdiction in Texas. Most people think that it is only district attorneys that represent the state in criminal trials. When I started as a prosecutor in Brazos County it was for the County Attorney's Office. In Brazos County, misdemeanor cases were handled by a separately elected County Attorney and felony cases were handled by an elected district attorney. In Harris County, the District Attorney's Office handles both misdemeanor and felony offenses. Each county has a slightly different take on how their cases are handled.



What I noticed over the years is that people who have "grown up" in that county think that the way they do it is the only way it can be done. This goes from probation violation procedures, to plea offers, to just about everything that is done in the criminal system. When I was a prosecutor in Harris County I handled both misdemeanor and felony offenses and eventually was promoted to the position of Felony Chief Prosecutor. Harris County is a different animal altogether from any other county in Texas. The sheer volume of criminal cases filed is enough to make a trial bureau prosecutor's head spin. Harris County's County Attorney has a very different role and focuses instead on civil issues. So Article 2.02 is geared more to the counties like Brazos that has a split division of responsibility for criminal cases.


Article 2.02 does not have the same provision that the prosecutor should "See that justice is done." However it does state that 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. This means that if you have been sworn in as a County, or assistant county attorney, then you can try a felony case whenever the district attorney requests assistance. No new oath must be administered however many times when the case crosses jurisdictions a special prosecutor position can be appointed. This is called an Attorney Pro Tem and we will cover it in Article 2.07 later in our blog series.


In some rural counties, the county attorney may be the only attorney employed by the government in that county. Some rural Texas counties are grouped into judicial districts and elect a single district attorney for multiple counties. This leaves the bulk of the criminal misdemeanor work to be done by the county attorneys. They may also have their cases filed in a county court presided over by a judge who is not a lawyer. If the county court was established by the legislature then it is typically referred to as a county court at law and does have the requirement that the judge be a licensed attorney.


This is one of the many quirks of Texas criminal law, a non-lawyer judge, can have the power to make legal rulings on evidence at a criminal trial and assess a punishment of up to 1 year in the county jail.


Art. 2.02. DUTIES OF COUNTY ATTORNEYS. 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. Acts 1965, 59th Leg., vol. 2, p. 317, ch. 722. Amended by Acts 1981, 67th Leg., p. 801, ch. 291, Sec. 99, eff. Sept. 1, 1981.


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