COURT OF APPEALS OF VIRGINIA


Present:  Judges Willis, Annunziata and Senior Judge Cole
Argued at Richmond, Virginia


CAROL A. BRUNTY, COMMISSIONER, 
 VIRGINIA DEPARTMENT OF SOCIAL SERVICES
                                            OPINION BY
v.         Record No. 0725-95-2     JUDGE ROSEMARIE ANNUNZIATA
                                                                                                                                                   MARCH 26, 1996
BARBARA SMITH                             


           FROM THE CIRCUIT COURT OF LUNENBURG COUNTY
                Charles L. McCormick, III, Judge


          Craig M. Burshem, Assistant Attorney General
          (James S. Gilmore, III, Attorney General;
          William H. Hurd, Deputy Attorney General;
          Siran S. Faulders, Senior Assistant Attorney
          General, on brief), for appellant.

               John M. Boswell for appellee.

     A local department of appellant, Virginia Department of
Social Services ("DSS"), determined that appellee, Barbara Smith
("Smith"), had committed "Founded-Physical Abuse-Level 3" against
J. H. ("child").  Smith appealed to the Commissioner of DSS
("Commissioner"), who affirmed the local department's finding. 
Smith appealed to the Circuit Court of Lunenburg County, which
reversed the Commissioner's decision and dismissed the case.  DSS
appealed, contending that the trial court erred in reversing the
Commissioner's affirmance.  DSS also filed a motion to vacate
both the trial court's order appointing a "special prosecutor"
and its order reversing the Commissioner's affirmance.  We agree
with DSS' contention that the court had no authority to appoint a
special prosecutor and remand this case for a new hearing.
     The facts are as follows.  After Smith appealed the
Commissioner's decision to the Lunenburg County Circuit Court,
the court appointed Edwin B. Baker ("Baker"), Commonwealth's
Attorney of Charlotte County, as a special prosecutor to act on
behalf of DSS after finding that Smith was a personal friend of
the Commonwealth's Attorney for Lunenburg County.  Neither DSS
nor the Attorney General's Office received notice of Baker's
appointment.  Meanwhile, the Attorney General's Office entered
its appearance as counsel of record by filing an answer to
Smith's petition for appeal.  Notwithstanding the Attorney
General's appearance in the case, neither it nor DSS was notified
of the circuit court hearing scheduled on the matter.  
     At the hearing, Baker, after reviewing the evidence in the
case, represented to the court that he found the evidence
insufficient to support the finding of child abuse.  Baker
thereafter prepared an order which the court entered, dismissing
the matter and ordering that Smith's name be removed from any
register identifying her as having been found guilty of Physical
Abuse-Level 3.  Baker signed the order under the heading, "We ask
for this."  The order states that Baker "acted with full
knowledge and concurrence of the office of the Attorney General."
               DSS' motion to vacate is based on the trial court's
appointment of a prosecutor to act on behalf of DSS.  DSS claims
the appointment was improper and deprived it of legal
representation before the court.  DSS contends that the case was
civil, not criminal, and that Code  2.1-121 requires that DSS be
represented by the Attorney General's Office in such cases.  We
agree. 
     The matter before the court was civil in nature rather than
criminal.  See Jackson v. W., 14 Va. App. 391, 410, 419 S.E.2d
385, 396 (1992); cf. Commonwealth v. Gray, 248 Va. 633, 635-36,
449 S.E.2d 807, 809 (1994) (proceedings on unreasonable refusal
charge are civil and administrative in nature).  Code  2.1-121
provides that the Office of the Attorney General shall provide
all legal services for the Department of Social Services in civil
matters.  See also Code  2.1-121.2.  In the context of Code 
 2.1-121, the term "shall" is mandatory and reflects the General
Assembly's intention that there be no discretion in complying
with statute, except as provided in the statute itself.  See Sink
v. Commonwealth, 13 Va. App. 544, 546-47, 413 S.E.2d 658, 659-60
(1992).  Code  2.1-121 contains three exceptions: (1) where the
chapter expressly grants an exception, see Code  2.1-122; (2)
where the litigation, initiated by the Judicial Inquiry and
Review Commission, involves a justice or judge; and (3) where the
Attorney General determines that it is impractical or
uneconomical for his or her office to render the services.
      None of the exceptions apply in this case.  The trial court
had no authority to appoint a "special prosecutor" to represent
DSS in a civil proceeding.  Baker had no authority to represent
DSS either at the hearing or by his signature on the final
order.  For these reasons, the final order was entered
improperly, without endorsement of counsel of record.  See Rule
1:13; Rosillo v. Winters, 235 Va. 268, 272-73, 367 S.E.2d 717,
719 (1988); Westerberg v. Westerberg, 9 Va. App. 248, 250, 386
S.E.2d 115, 116 (1989).
     Accordingly, both the trial court's order appointing Baker
as "special prosecutor" and its order reversing the
Commissioner's decision in this case are vacated and the matter
remanded for any further proceedings deemed appropriate.
                                            Vacated and remanded.