¶1concur.
¶2The Constitution of the State of Texas contemplates “the election of District Attorneys in such districts, as may be necessary.” Article V, § 21; Interpretive Commentary. Accordingly, the Legislature has mandated that voters of Washington and Burleson counties elect a district attorney to represent the State in the district court for the 21st Judicial District. Y.T.C.A. Government Code, § 43.108. Agreeing with the result reached by the court, nevertheless I believe this cause presents a question of constitutional dimension that must be examined and considered with more care.
¶3I
¶4Ever since at least 1858 the Legislature has assigned to district attorneys a basic duty of office relative to criminal prosecutions, viz:
“It is the duty of each District Attorney to represent the State in all criminal cases in the District Courts of his District, except in cases where he has been, before his election, employed adversely ...”
¶5Article 2.01, V.A.C.C.P.
¶6Early on, should the district attorney be absent, the district judge had the power to appoint an attorney at the bar to perform the prosecutorial duties of the district attorney, including preparing such indictments as the grand jury may request. Upon taking the constitutional oath of office the appointee became “district attorney pro tem.” State v. Lackey, 35 Tex. 357 (1872); Bennett v. State, 27 Tex. 701 (1864); State v. Gonzales, 26 Tex. 197 (1862); State v. Johnson, 12 Tex. 231 (1854).
¶7Later, the Legislature sanctioned and formalized the practice with provisions that with modifications remain in effect to this day. Article 2.07(a), V.A.C.C.P., as amended.
¶8Thus, as correctly discerned by the State:
*529. It has been the law in this State for over 120 years that: ‘A district attorney pro tem is legally authorized to do whatever the law authorizes a district attorney to do.’ State v. Lackey, 35 T 357 (1982).”
¶9State’s PDRs and Briefs, at 8.
¶10II
¶11In this cause the elected district attorney chose to recuse himself and his “staff” under recently enacted § 2.07(b-1). Presumably because his pleading is styled a motion for “appointment of a special prosecutor,” the majority appears to treat a “district attorney pro tem ” and a “special prosecutor” functionally synonymously, without any distinction. Majority Opinion, passim, and at 527. In that, I believe, are seeds for producing confusion between the two positions.
¶12The term “special prosecutor” first appeared in any code of criminal procedure with the revision of 1965, when the revisors added to Article 2.01, the following admonition:
“It shall be the primary duty of all prosecuting attorneys, including any special prosecutor, not to convict, but to see that justice is done. They shall not suppress facts or secrete witnesses capable of establishing the innocence of the accused.”
¶13See Special Commentary and Historical Note.
¶14Both the State Prosecuting Attorney and the “special prosecutor” distinguish a “district attorney pro tem" from a “special prosecutor,” pointing out as to the latter, viz:
“... In some instances a so called ‘special prosecutor’ may assist a district attorney in investigating and prosecuting a particular case, but the prosecuting attorney in that instance is responsible for and in control of the prosecution. See Davis v. State, 148 Tex.Crim. 499, 188 S.W.2d 397 (App.1945); Lopez v. State, 437 S.W.2d 268 (Tex.Cr.App.1968).”
¶15PDR and Briefs, at 8. Those cases and others make clear the distinction between the two positions.
¶16Basically, a “district attorney pro tem ” is appointed by the district court, and after taking the oath of office assumes the duties of the elected district attorney and in effect replaces the latter in performing germane functions of office for purposes contemplated by the appointment. On the other hand, a “special prosecutor” is permitted by the elected district attorney to participate in a particular case to the extent allowed by the prosecuting attorney, without being required to take the constitutional oath of office.
¶17*530While some opinions express the view that the trial judge has some discretion in the matter, especially when objection is made, it is enough today that we draw germane distinctions between a district attorney pro tem and a “special prosecutor” to demonstrate that the office of the former is not the same as the position of the latter.
¶18With those cautions and observations, I join the judgment of the Court.
¶19. Act of February 15, 1858; Article 30, C.C.P. 1856, as amended; Oldham & White, Digest of the General Statute Laws of the State of Texas 571 (1859); article 31, C.C.P. 1979; article 30, C.C.P. 1895; article 30, C.C.P. 1911; article 25, C.C.P. 1925.
¶20All emphasis is mine unless otherwise indicated.
¶21. See and compare Act of August 7, 1876, p. 87, § 12; article 39, C.C.P. 1879; article 38, C.C.P. 1895; article 38, C.C.P. 1911; article 31, C.C.P. 1925; article 2.07, C.C.P. 1965. All authorized the trial judge to appoint a district attorney pro tem "to perform the duties” whenever the district attorney “shall fail to attend any term of the district [court;]” the appointee was allowed the same compensation for his services as the district attorney, his appointment was not to exceed beyond term of court and was vacated "upon the appearance of the district [attorney].”
¶22In 1967 the Legislature cast the need for an appointment solely in terms of the district attorney being "disqualified in any case.” Acts 1967, 60th Leg., Ch. 659, p. 1733, § 4.
¶23Later the Legislature restored the circumstance of "absence,” and added as well “otherwise unable to perform the duties of his office, *529or in any instance where there is no attorney for the State." Acts 1973, 63rd Leg., Ch. 154, p. 356, § 1.
¶24That an otherwise qualified attorney for the State may be allowed to recuse himself "for good cause” and then be considered “disqualified” was added by Acts 1987, 70th Leg, Ch. 918, p. 3107, § 1.
¶25. The State Prosecuting Attorney filed the principal PDR and Brief in Support Thereof. The district attorney pro tem, though calling himself "special prosecutor,” also filed a PDR and supporting brief, conceding that his is "taken directly and verbatim” from the former because it "adequately and forthrightly presented the State’s argument in this case.” Id., at 9. Compare majority opinion, at 528, n. 2.
¶26. In Lopez v. State, 628 S.W.2d 77 (Tex.Cr.App.1982), the Court construed this passage to apply to “a privately retained attorney employed to prosecute the case.” Id., at 80. It is unclear whether the attorney was assisting in or solely engaging in the prosecution, but in any event it does appear that he was not a court appointed district attorney pro tem.
¶27. See, e.g. Lopez v. State, 628 S.W.2d 77, at 80 (Tex.Cr.App.1982); Reed v. State, 503 S.W.2d 775, at 776 (Tex.Cr.App.1974); Ex parte Powers, 487 S.W.2d 101, at 104 (Tex.Cr.App.1972); Lopez v. State, 437 S.W.2d 268, at 269 (Tex.Cr.App.1968); Figueroa v. State, 375 S.W.2d 907 (Tex.Cr.App.1964); Bingham v. State, 163 Tex.Cr.R. 352, 290 S.W.2d 915, at 918-919 (1956); Loshe v. State, 160 Tex.Cr.R. 561, 272 S.W.2d 517, at 519, 520 (1954); Phillips v. State, 159 Tex.Cr.R. 286, 263 S.W.2d 159, at 160 (1953); Davis v. State, 148 Tex.Cr.R. 499, 188 S.W.2d 397, at 399-400 (1945); see also Harwell v. State, 149 Tex.Cr.R. 559, 197 S.W.2d 349, at 350 (1946); Fitzgerald v. State, 722 S.W.2d 817, at 820 (Tex.App.—Tyler 1987) (assistant district attorney of another county serving as special prosecutor), affirmed on other grounds, 782 S.W.2d 876 (Tex.Cr.App.1990); Liveoak v. State, 717 S.W.2d 691, at 694 (Tex.App.—San Antonio 1986), PDR refused with disclaimer on other ground, 741 S.W.2d 451 (Tex.Cr.App.1987).