Untitled Texas Attorney General Opinion ( 1959 )

THEA``ORNEYGENERAL
OF TEXAS
November 30, 1959
Honorable Bill Thomas Opinion No. WW-750
County Attorney
Taylor County Courthouse Re: Whether the Commissioners'
Abilene, Texas Court of Taylor County has
the right of election be-
tween the employment of an
Assistant District Attorney
under Article j'26hor Arti-
cle 326k-39, Vernon's Civil
Dear Mr. Miles: Statutes.
You have requested the opinion of this office on the
following question:
I!
. . . whether or not the Commissioners'
Court has the right of election between
the employment of an Assistant District
Attorney under Article 326h or Article
326k-jg? . . ."
Article 326h, Vernon's Annotated Civil Statutes, pro-
vides:
"Sec. 1. In any judicial district in
this State composed of more than one county
and in which there is a city having an actu-
al population of 50,000 inhabitants or more,
the drstrlct attorney shall have authority,
with the approval of the commissioners' court
of such county in which said city is situated,
to appoint not more than two assistants, who
shall be licensed to practice law in this
State, and shall perform such duties as shall
be required of them by the district attorney
and under the direction of the district at-
torney shall have all the authority that may
be exercised by the district attorney. The
district attorney shall use one of said as-
sistants as an investigator to assist In
the performance of the duties of his office,
in addition to whatever other duties may be
required of such assistant. Said assistants
Honorable Bill Thomas, page 2 (WW-750)
shall take the constitutional oath of office
and serve at the will of the district attorney,
not to exceed under any one appointment the
maximum time fixed by the Constitution for
such officers.
"Sec. 2. The salary of each of said
assistants shall not exceed three thousand
dollars ($3,000.00) per year, to be paid by
the county In which said city is situated
by warrant drawn on the general fund thereof,
all salaries payable monthly. The district
attorney shall ascertain the population of
any city in his district necessary to be
ascertained under this Act by making appli-
cation to the mayor of any such city for a
certificate as to the population of such city.
It shall be the duty of any such mayor to
ascertain by some reasonable accurant estimate
the population of any such city, and his
certificate to same under oath shall authorize
the district attorney to assume its correctness
and act upon the information contained in such
certificate in making any appointment of an as-
sistant or assistants under this Act."
In the absence of a certificate from the Mayor of Abi-
lene as to the actual population of that city, we will use the
Texas Almanac. According to the 1958-59 Edition, the 1957 esti-
mated population of Abilene, Texas, the county seat of Taylor
County, was 65,000. Taylor County is located in the 42nd and
104th Judlclal Districts. The 42nd Judicial District is com-
posed of Taylor, Callahan and Shackelford Counties, and the
104th District is composed of Taylor, Jones and Fisher Counties.
Under these facts, it would seem apparent that Abilene
and Taylor County would come under the above statute. However,
Article 326k-39, passed in 1957, provides:
"Section 1. The district attorney for the
42nd Judicial District and the district attorney
of the 104th Judicial District with the consent
of the district judges of the 42nd Judicial Dis-
trict and the 104th Judicial District, respective-
ly, and of the Commissioners Courts in each of
the counties comprising the 42nd and 104th Judi-
cial Districts, are hereby authorized to appoint
an assistant district attorney for the district
attorneys of such districts.
Honorable Bill Thomas, Page 3 (w-750)
"Sec. 2, The assistant district attorney
provided for in this Act must be duly and legally
licensed to practice law in this State. The as-
sistant may be required to give bond.
"Sec. 3. The assistant provided for In this
Act shall receive a salary of not less than Three
Thousand Dollars ($3,000) nor more than Four Thous-
and Dollars ($4,000) per annum, said salary to be
flxed by the district attorneys of the districts
and ap roved by the district judges of the 42nd
and 10E th Judicial Districts and by the Commission-
ers Court of each of the counties comprising the
42nd and 104th Judicial Districts. In addition
to his salary, the assistant shall be allowed the
actual and necessary expenses Incurred in the pro-
per discharge of his duties, never to exceed
Eleven Hundred Dollars ($1,100) per annum.
"Sec. 4. The salary and expenses of the as-
sistant district attorney provided for in this
Act shall be paid out of the general funds of the
counties, prorated according to the population of
the counties composing the judicial districts."
As this Statute sets out, it is a specific Article deal-
ing with the 42nd and 104th Judicial Districts only. Both Arti-
cles 326h and 326k-39 have as principal subject matter Assist-
ant District Attorneys; 326h being a general statute and 326k-
39 being a specific statute. A comparison of Article 326h and
326k-39 reveals various conflicts between the two. Some of
these conflicts are:
'(1)Number of Assistants. Under Article 326h, it Is
possible to have four (4) assistants in Taylor County, while
326k-39 limits the number to one (1) who will serve as assist-
ant to both District Attorneys.
(2) Method of appointing. Under 326h, only the Commis-
sioners' Court of the County in which a city of a population
of 50,000 or more shall give approval, while 326k-39 provides
that all Commissioners1 Courts in each of the counties compris-
in the 42nd and 104th Districts must give approval. Also,
328k-39 provides that the district judges of the two judicial
districts must give their consent while 326h is silent on this
matter.
c
Honorable Bill Thomas, page 4 (WW-750)
(3) Salaries. Article 326h provides a salary not to
exceed $3,000 per year for each assistant to be paid by the
county in which the city of 50,000 population is located, while
326k-39 provides for a salary of not less than $3,000 nor more
than $4,000 per year which shall be paid by the various coun-
ties in the districts prorated according to population.
On the effect of a specific act conflicting with a
prior general act, oneauthority states:
"This rule of construction has found fre-
quent and apt illustration where one of the
supposedly conflicting statutes was general
,in its terms and the other specific. In such
a case it is universally held that the specific
statute more clearly evidences the intention
of the Legislature than the general one, and
therefore that it will control. In such a case,
both statutes are permitted to stand--the gener-
al one applicable to all cases except the parti-
cular,,oneembraced in the specific statute.
(Townsend v. Terrell, 118 Tex. 463, 16
S.W.id 1063 [1929).
Thus, it is our opinion that this is the proper rule
of construction that should be applied here. It is also im-
portant to note that Article 326k-39 was passed thirty years
after Article 326h, and certainly shows more clearly the legls-
lative intent in this regard in the 42nd and 104th Judicial
Districts.
SUMMARY
The Commissioners' Court of Taylor County
does not have the right of election between
employment of an Assistant District Attorney
under Article 326h or Article 326k-39. The
District Attorneys must hire the assistant
with the consent of the Commissioners' Court
and the District Judges under Article 326k-39.
Yours very truly,
WILL WILSON
JMF:mfh
Honorable Bill Thomas, page 5 (WW-750)
APPROVED:
OPINION COMMITTEE
W. V. Geppert, Chairman
James Irion
Iola Wilcox
Gordon C. Cass
REVIEWED FOR THE ATTORNEY GENERAL
BY: Leonard Passma- e