Untitled Texas Attorney General Opinion ( 1948 )

Hon.~cullenB. Vance Opln*on Ro. v-503
Re: &Jr ofthe 'Co&y Attor-
ney to represent the
State In a suit brought
to.remo~e a ofihithi or
a county l?hldh,iollaclud-
~66illa dlstri.otalere
there Is a district at-,
torney.
n8 lWt8r tQ YOUr lr808llt
hltt8r t0 this &PC&l+
ment ml@ reads,'in part, a8 follovs:
.'.~%ecrtloq22 of ArtloW of.the StcLte'~
Constitutionprovides th@county aWmeya
8hall represent the St&e In all cases,ln. .,
the dlat?ict and 1Werior ootite in thelz
re$Qectl.veComties, but Ql'&ldef+hatthe
resQeCtive'dUtiea,& district attorneys~and.~
counW~ att+&ys shall be.regulated9 ,the
Legislaturewh&re the county Is included in
a.diatrict in vhioh there,is-& dlstriot a$--
torney. Jaekksoncounty~ls 1Qcsted where~there
is 'a.distr$etattorney. Bo legislative e+%at-
mnt, 80 far aa I have b~een.ebleto find, has
been made under'the above aeatlon of the Con-
.atltotion.
“The pqebtlon piesexited 1s whether‘lt
Is my duty to represent theState in 8 suit
for removal of e county offlalsl, or whether
this dosy is imposed upon the Dletrlct At-
torney. .. .
Section 21,.Art.,V, of the State Constitution
provides, Inpart, that8
"The county attoMeya shall represent
the State in all eases in the MsCrl,ct and
lnierlor court.8in their respective aoun-
Eon. Cullen B. Vance, page 2 (V-503)
tier, but ii any couaty shall be lnoluded in
a dlstr.ietla whioh there shall be a dlstr$ot
attorney, the respective duties oS.distrlot
attorneys and cotity attorneys shall in suoh
tountles be regulated by the Legislature."
Section 24, of Article V, Is as Sollowe:
"County'Judges,county attornejs, glerks
of the District and County CWrts, justices
of the peace, constables,and other county
oSSiae@a, may be removed by the Judges of the
M&Plot Courts for incompetency;oSflclal
miroomduot,habitual drunkcnnesa,.orother
cauaea~'d+ned by lav, upon the cause there-
SOP w set forth ln'wrltfing
and the SW-
lng of9i s truth by a jury. ,- ~.,
&ticle 5970, Y. C. S., provide@, in part, aa
s011wsr
"4illdlstrlotand oounty attorneys, ooun-
ty ju&er, oommlssloners;' olerke ofthe die-
trio% iandobunty courta,and single clerks In
cowties. where one.olark dleoharges the duties.
of dlfatrlotand oouuty oleek, county treamrer,
s&e@S eowity surveyor, a86etmor, colleotor,
~Q&&#& oattle and hide laapeetor,,juatloe
0s hha'paaq and all county offloers PQV or
h&reaftbP exlrtlng by authority olther of the
Con&batMn or,lavs, may be removed from OS-
flee by the judge 9s the fliatrl@toourt for
lneempetewy, ofSlolal m%soomduot or becoming
lntodwted by drinking intbxioatingliquor;
as.8 beverage,.vhethera duty or not; . . .=
In the caab of State V. Narey, 164 8i~W. (24)
55,'the court in passing upon the question of irhoqeduty
It was8to.brl suit to remove the sherlff of Nueoes
County;'whelre"&here iraaa Criminal District Attorney and
a County Attorney, held thatr
"lieaonclude that such power.and duty
vests lmthe- countf attorney wcler S&ci'Pl,
M;-s, of the Constitutti6n, quoted above,
whlqh.pmmldee that 'the county attbrheys
ahall iwpresent'theState in all oaaea In
t&,Dirtriot and inSeMor con&s in their
resgiotW4p 0ountie8.*"
, .1.
.’.
Eon. Cullen B. Vance, page 3 (V-503)
In the case'of State v. Bhnls, 195 S. W. (2d)
151, even though the court held it wan the duty of the
Mstrlct Attorney to bring a suit for the removal of the ':
aheriff for official misoonduct,we do not believethat
the court Intended that this was.an exclusive duty of
the DiistrlctAttorney. On the contrary, me think that
the court implied that It was not the exclusive Suno-
tion of the Dlatrlot Attorney since the court olted the
Rarney Case with approval.
Mbreover, in the case 'ofReeves v. State, 267
9. W. 666, which was for the removal of a sheriff for
misconduct or office, the court held that in an action
to oust a county orfiber that such action must be brought
by a Countq or District Attorneg.
'Therefore;in view 0s the foregoing, it is the
kipidon of this Department that it is the duty OS both
the COunty and District Attorney to represent the State
in a suit for removal of a county official, but aueh
duty la not exoluslvely that of either.
.Itla the duty of both the County At?
torney.'andDistrict Attorney to repreaent
the State ln a'sult~'Sorremoval of a'county
OfSloial, but such duty la not excl~8lvi3lg
that of either. Seotlon 21, Art. V, State
Constitution;State v:Rarney, 164 3. W.
(26) 55; State v. IhIs, 195,s. W. (2d)l51;
Reeves v. ,State,,267S. W. 666.
Yours very truly,
ATTORRRY ffRRRRALOF TRXAE4
ByA--
Bruce Allen
Assistant