Untitled Texas Attorney General Opinion ( 1971 )

THE A-ITORNETC GENERAL
~DPTEXAS
Hon. L. Dewitt Hale Opinion No.M-856
Chairman, Judiciary Committee
House of Representatives Re: Constitutionality of H.B.
State Capitol 784, permitting an
Austin, Texas 78711 individual to petition for
leave to file an informa-
tion in the nature of a
quo warranto.
Dear Representative Hale:
You have requested our opinion on the validity of H.B. 784
of the 62nd Legislature, Regular Session.
House Bill 784 attempts to amend Article 6253, Vernon's
Civil Statutes, so as to permit an individual to petition for
leave to file an information in the nature of a quo warrant0
without the necessity of such suit being brought by the Attorney
General or District Attorney or County Attorney of the proper
county or district.
It is our opinion that such an amendment interferes with
the constitutional power and duty of the Attorney General, the
District Attorneys and County Attorneys, who are required to
represent the State insuch a suit and no one else may do so.
Article IV, Section 22, Texas Constitution: Article V, Section 21,
Texas Constitution: Staples v. State, ex rel Kinq, 112 Tex. 61,
245 S.W. 639 (1922); Maud v. Terrell, 109 Tex. 97, 200 S.W. 375
(1918); Adamson v. Connally, 112 S.W:2d 287 (Tex.Civ.App. 1937,
no writ): Yett v. Cook, 115 Tex. 205, 281 S.W. 837 (1926);
Mulcahv v. Houston Steel Drum Company, 402 S.W.2d 817 (Tex.Civ.
App. 1966, no writ). The very nature of a quo warrant0 proceeding
is to call into question by what authority the office or
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Hon. L. Dewitt Hale, page 2 (M-856)
franchise is exercised. The State is always a necessary party,
and it is not available to a private citizen in his capacity
as such. See Texas Practice, Lowe and Archer, Sec. 541, page 497.
In Adamson v. Connallv, supra, the Court stated the rule as
follows:
?An action of quo warranto, or information in
the nature of quo warranto, is a suit to which the
state is a party plaintiff. R.S. 1925, art. 6253.
Such an action must be brought by the Attorney General
or the district or county attorney of the county or
district. Const. art. 4. Section 22; Id. art. 5,
Section 21. The Legislature would have no constitutional
power to authorize such an action to,be brouqht by any
other person without one of the officers named."
(Emphasis added.)
In view of the foregoing, you are advised that H.B. 784 of
the 62nd Legislature, Regular Session, is unconstitutional.
SUMMARY
H.B. 784 of the 62nd Legislature, Regular
Session, purporting to permit an individual
to petition for leave to file an information
in the nature of a quo warrant0 without the
suit being brought by the Attorney General or
the District Attorney or County Attorney is
unconstitutional. Article IV, Section 22, and
Article V, Section 21, of the Texas Constitution.
Ver,druly yours,/)
neral of Texas
Prepared by John Reeves
Attorney
IF
Assistant Attorney General
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Hon. L. Dewitt Hale, page 2 (M-856)
APPROVED:
OPINION COMMITTEE
Kerns Taylor, Chairman
W. E. Allen, Co-Chairman
Max Hamilton
Lewis Jones
James McCoy
James Swearingen
MEADE F. GRIFFIN
Staff Legal Assistant
ALFRED WALKER
Executive Assistant
NOLA WHITE
First Assistant
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