Untitled Texas Attorney General Opinion ( 1971 )

Honorable Wm. B. Sullivant Opinion No. M-904
County Attorney
Cooke County Courthouse Re: Who serves as District
Gainesville, Texas Attorney of the 16th
Judicial District, pursuant
to Senate Bill 906, Acts
Dear Mr. Sullivant: 62nd Leg., R.S., 1971.
Your recent letter requesting the opinion of this
office concerning the referenced matter states, in part, as
follows:
"The 62nd Legislature, Regular Session, 1971',
passed Senate Bill 906, creating the 235th Judicial
District Court and the office of District Attorney
for the Court. The District will include Cooke,
Wise and Jack Counties. The Governor appointed me
to fill the position of District Attorney for this
court until November, 1972, when the term of office
will expire and the office will become elective. A
problem has come to mind on which I would appreciate
an Attorney General's Opinion to help clarify matters
here in Cooke County.
"It is this: Cooke County is already in the
16th Judicial District, which District serves both
Cooke and Denton Counties. The 16th was set up so
that the County Attorneys of Cooke and Denton Counties
would serve as District Attorneys of the 16th District
when the court sits in their respective counties. As
I read Art. 199-A, Subchapter B, Sec. 2.007, the County
Attorney in Cooke County shall serve the new court
created by S.B. 906, 62nd Legislature, Regular Session,
1971. I do not think this was the intent of S.B. 906.
If the creating of the office of District Attorney in
S.B. 906 is to be interpreted as superceding the pro-
visions of Art. 199-A, Subchapter B, Sec. 2.007, please
advise whether the District Attorney under S.B. 906
shall serve in the 16th Judicial District or whether
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Hon. Wm. B. Sullivant, page 2 (M-904)
the County Attorney shall continue to serve as
District Attorney in the 16th Judicial District."
The 16th Judicial District was created by Article
199(16), Vernon's Civil Statutes.
Section 2.007 of Article 199a, Vernon's Civil Statutes,
which is the Judicial Districts Act of 1969, provides as follows:
"The district attorney (or county attorney
or criminal district attorney), the sheriff? the
district clerk, the bailiffs, and other officers
serving the other district court or courts of the
county shall serve in their respective capacities
for the court created by this Act."
The caption of Senate Bill 906, Acts 62nd Leg. R.S.
1971, provides, in part, as follows:
"An Act . . . creating the 235th Judicial
District . . .; amending the Judicial Districts
Act of 1969, as amended (Article 199a, Vernon's
Texas Civil Statutes) . . .; creating the office
of district attorney of the 235th Judicial District
. . .I,
Section 2 of the Act provides as follows:
"Subchapter C, Judicial Districts Act of 1969
(Article 199a, Vernon's Texas Civil Statutes),is
amended by adding Section 3.028 to read as follows:
"'Section 3.028. (a) The 235th Judicial District,
composed of the Counties of Wise, Jack, and Cooke, is
hereby created.
"'(b) The enactment of this amendment shall in
no way change, alter, diminish, or affect the pro-
visions of Subdivision 16, Article 199, Revised
Civil Statutes of Texas, 1925, as amended, but is
in addition to and cumulative of those provisions."'
Section 4 of the Act provides:
"(a) The office of district attorney for the
235th Judicial District is established. The district
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Hon. Wm. B. Sullivant, page 3 (M-904)
attorney shall have the powers and duties prescribed
by law for district attorneys.
"(b) On the effective date of this Act, the
Governor shall appoint a district attorney for the
235th Judicial District who shall serve until the
general election in 1972 and until his successor is
elected and has qualified. . . .'I
Section 8 of the Act provides:
"All laws and parts of laws in conflict here-
with are hereby repealed to the extent of such con-
flict and in any and all cases of such conflict,
the provisions of this Act shall prevail."
A conflict is thus presented by portions of the fore-
going statutes. On the one hand, Section 2.007 of Article 199a,
quoted supra! states, in effect, that the district attorney of
the 16th Judicial District (who is the County Attorney of Cooke
County when the 16th Judicial District Court sits in that County)
shall be also the District Attorney of the 235th Judicial District
Court created pursuant to Article 199a.
On the other hand, Section 4 of Senate Bill 906, quoted
supra, establishes the office of the District Attorney for the
235th Judicial District, and provides for his independent election,
with no reference being made to the District Attorney of the 16th
Judicial District.
We are of the opinion that the language of Section 8 of
Senate Bill 906, quoted supra, is controlling in resolving the
conflict adverted to hereinabove, and that the specific provisions
of Section 4 of the Act relating to the establishment of the office
of District Attorney for the 235th Judicial District have impliedly
repealed the language of Section 2.007 of Article 199a, insofar
as that language would prohibit the establishment of the separate
office of District Attorney for the 235th Judicial District.
The applicable rule of statutory construction has been
stated as follows:
"(W)here irreconcilably conflicting acts are
passed at the same time or where parts or sections
of the same act are in irreconcilable conflict, the
act or provision later in position prevails as the
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Hon. Wm. B. Sullivant, page 4 (M-904)
latest expression of the legislative will, and re-
peals the other in so far as there is irreconcilable
conflict." 53 Tex.Jur.Zd 150, Statutes, Sec. 101.
See, also, Attorney General's Opinion No. M-472 (1969).
In discussing the law of implied repeal, the Supreme
Court of Texas, in State v. Easley,``,.404
S.W.2d 296 (Tex.Sup.
1966) stated, at page 300, that:
"The rule of law applicable is stated in the
case of Commercial Credit Co., Inc. v. American
Mfg. Co., et al. (Tex.Civ.App. 1941), 155 S.W.2d
834, 839, writ refused, as follows:
"'We are not unaware of the general rule of
law in this State which holds that repeals by im-
plication are not favored. But as early as Rogers
v. Watrous, 8 Tex. 62, 58 Am.Dec. 100, and by
numerous cases on down to recent dates it was
announced that subsequent statutes revising the
subject matter of former ones, and evidently in-
tended as a substitute for them, although con-
taining no express words to that effect, must
operate to repeal those going before. This rule
was followed by the Commission of Appeals in First
Nat. Bank v. Lee County Cotton Oil Co., 274 S.W.
127, where the authorities are collated over a
period of seventy-five years. See also Meek v.
Wheeler County, 135 Tex. 454, 125 S.W.2d 331,
approved by the Supreme Court, 135 Tex. 454, 144
S.W.2d 885.' See also Gaddis v. Terrell, Land
Commissioner, 101 Tex. 574, 110 S.W. 429 (1908)."
In view of the foregoing, we are of the opinion that
Section 4 of Senate Bill 906 impliedly repeals Section 2.007 of
Article 199a, insofar as Section 2.007 relates to the office of
District Attorney of the 235th Judicial District.
Your questions are, therefore, answered as follows:
(a) the County Attorney of Cooke County shall serve as the
District Attorney of the 16th Judicial District Court, when
that Court sits in Cooke County, and (b) the District Attorney
of the 235th District Court, created by Senate Bill 906, shall
serve that Court in all counties in which it sits.
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Hon. Wm. B. Sullivant, page 5 (M-904)
SUMMARY
Section 4 of Senate Bill 906, Acts 62nd Leg.,
R.S. 1971, impliedly repeals Section 2.007 of
Article 199a, Vernon's Civil Statutes (the Judicial
Districts Act of 1969), insofar as Section 2.007
relates to the office of District Attorney of the
235th Judicial District.
The County Attorney of Cooke County shall serve
as the District Attorney of the 16th Judicial District
Court, when that Court sits in Cooke County.
The District Attorney of the 235th Judicial
District Court, created by said Senate Bill 906, shall
serve that Court in all in which it sits.
truly yours,
f Texas
Prepared by Austin C. Bray, Jr. I'
Assistant Attorney General
APPROVED:
OPINION COMMITTEE
Kerns Taylor, Chairman
W. E. Allen, Co-Chairman
Sally Phillips
Wardlow Lane
Van Thompson, Jr.
Bill Craig
MEADE F. GRIFFIN
Staff Legal Assistant
ALFRED WALKER
Executive Assistant
NOLA WHITE
First Assistant
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