Untitled Texas Attorney General Opinion ( 1944 )

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436
OFFICE OF THE ATTORNEY GENERAL OF TEXAS
AUSTIN
Honorable Joe c. Olndn6y
Criminal Dlatciot Attorwy
Robk county
ti41Xd4rMAI Toznr
Dear Sir8
1944, requestlug the
opinion of this on8 rtated therein 18,
b part; aa fol
pour statement over the
hereby rrqusstlng an
neral’s Office relative
he Offloe a$ Crlmlnal Dirr-
risu ot the faot that this
o be bound by the d4014ion rendered
ourt againat Hill County Tuesday of
impoitant that w4 have a ruling on
Do48 the person who was aerving au
Criminal Dlrtriot Attorney automatloally Broome
County Attornrp
“II. What ii hia salary, and fi eet by
tho Coamiasionera Court between what limits?
“ISIW Bow mar17 asrletantr are now permitted
ana what may their salaries be?
Donorablr Jo4 0. Cladney, prig4 2
4Th4 aeseessd valuation of th4 county 1s
slightly less than $90,000,000.00; and the lataat
Federal Census glvea the oounty about 51,000 popu-
lation.w
In th4 oas4 or Dill County, T4xa8, p4tltloa4r. v.
C4o. H. Sh4ppard, Comptrol.l4r,rmspondent (not yet reported)
ttm ihapreae Court hrld Art1014 3269, Vdrhon*s Annotated Civil
Statutes,. invalid. Art1014 $26~ was orlglnally 4naot4d by
the 42nd L4glslatur4, R4gular S4sslon, 1931, as S4nat4 Bill
Ho. 220, Chapter 354, Page 044, GeneralLaws of T4xas. Th4
original Aot was appllcablo to oountlds in this Stat4 having
a population of not less than 33,200 and not sor4 than 75,000
inhabitants and not oontainlng a oity of more than 20,000 in-
habitants as d4terralned by the last pr4oedlng Bsderal C4nsus
and 4aoh suooe4dlng Pedrral C4nsus thsr4after. and in whloh
oouhtles ther4 wet4 on4 or mor4 Judicial Dlatrlats. The 42nd
Lagislatur4 at the lrlrst Call46 Seasion,1931, as4nded Seation 1
of S4nat4 Bill 220, supra, so. as to mak4 said Aot applIoabl4 to
oouutiss having a population oi not less than 32,000 and not mor4
than 75 000 lhhabltauts and not containing a olty of mor4 than
SO.000 fnhabltants as detersine by the laet preceding federal
04nsus, and 4aeh suoosrdlng V4drral C4nsus thereafter. (Thr
azwtndment to said Beatlon1 her4totor4 wntloned is 9. B. No. CO,
Ch. 3.S. p. SO, 42nd Leg., First C. S.)
Vernon’s ¬ated Civil Btatutas do not oontals
th4 amendmentto Ssotlon 1 heretororcr mentlowd, how4ver, w4 must
assum that th4 Suprae Court kn4w of sald am4ndimnt and oonsldered
th4 Statute as am4ndsd in th4 oasr ot 8111 County 1. Qeo. H. Sh4p-
pard , supra. Therefor4, Axtlole 320q, supra, a8 amended, 1s ln-
valid under th4 holding of th4 Suprwm Court in the said ease
of Xl11 County v. 040. Ii. Sheppard, suprae
811104 Artiolo 3269 has been hrld Invalid by the Supreme
Court, it nsosssarfly follovvs. that th4 ofilor purportedly areated
“Criminal Distrl4t Attorney,” doer not 4xlet in those counties
Coining within th4 provlslons of said artlol4. W4 do not think
that It oan be said that where a person runs for and 18 4leoted
to the oiflc4 of 4Crlnlnal Dlstrlot Attorney” undar th4 provisions
Of Utiol4 326q, that suoh pereon is now the County Attorney after
said statuts h.88 b44n held invalid. Thsrefore, w4 rssgeotiully
answer your first question, as stated abovr, in thr nrgativ4.
438
nonorabl4 Jo0 C. Oltidney, p1g4 3
fn r14w or th4 for4golng, and our Opinion No. O-
3158, it 1s opinion that Mr, Oladmy fs sow a d4 fa0t0
our
oounty attorn4y. It 18 our turthrr opinion that th4 lr al tit14
to the oowty &torwy*s Offi04 Oodld Only be roWred L on4 or
two W~YS~ by 414otion, or by appointvmt to that offi M~F.
Ol.a&ey has n4ith4r hem llrotrd tior appointed to the offi Of
county Attors4y, lo hs never had lrgal tit14 *O th4 OOWtY at-
torn4y's offfoe. It rhmld b4 born4 in t&d that ths dr faoto
0rii04r iwst surrend4r poso4sslon of his offio4 as 800B as a
94rsos is duly 4lsotrd OT agpointrd to th4 off104 ad ha* putii-
flwl as provided by law. Equity will not lrnd him its aid to
r44traln a ~duly appolnt4d 90x80s fms rntering upon the dis-
oharg4 of the duties of the offfo4, BOOrwill it rOStrain the
payment of the salary to him. (B4e Dhr T* DmWn, 191 2. D. 379,
and Tex. Jur., Vol. 34, Q. Sea)
Rusk County ha4 a population 32,484 lnhabltants ao-
oordlng to thr 1930 Fsd4ral C4nsu8 aad said Ooanty has a popula-
tion or 81,023 inhabitants aooording to the 1940 federal Cewus.
As Busk County had a pcqmlatlon of 58,464 inhabitants aooording
to th4 1930 Fodrral C4neu8, under the applioable prorlslons of
Art1014 SW3 and Art1014 3891 th4 naxlnum oom 4nration of th0
County Attorney of Rusk County cannot rxoeed 1 3300 p4f year. In
vi4w or th4 for4golng statute4 and Seation 13 of Art1014 39l&,
VBrnon*s Ahuotateb Civil Statutes, th4 County Attorney of Roik
County who performs th4 dutlss of Dlstrlat Attorn4y must b4 paid
is mon4y as annual salary in tw4lv4 squal lnstallm4nts 0r not 144s
than the total sua sarndd as ooapsnsatlon by him in his orrioial
0aEaOity for the fisoal y4ar 1935 and not mop4 than th4 nuixiaum
allowed suoh 0ffl04r under laws @XlStlng on August 24, 1935. AS
hsr4toror4 statrd, th4 maximus salary or tha County Attorwy or
Rusk Cowty, under A~10108 3083 and 3891 18 $SM)O p4r ysar, how-
4V4r, under th4 prorlslons 0f SeOtiOB 13 of Art1014 39124 the
mXknOa awount allowed the County Attorney as salary my b in-
0rrased on4 p4r oent for 0aoh one million dollars ~a!I uation0r
fraotional part thereof1n 4x0488 of twenty million dollar* talus-
Uos o’l4r and above th4 pn~uioon allow46 suoh offlO4r under laws
4XistiBg On Augu4t 24, 1958, (944 th4 oasas or Ha0ogQohes County
x* ~4Bklas 140 8. 111. (26) 901, and Daoogdoohes Coanty v. wiBa4r,
140 9. w. fad) 978)
Honorable Jo4 C. Gladney, perge 4
WI now consider your third question. Artlo 331,
V4rnon’e Annotated Civil Statutes, provides, in effect, th3t
county attorneys, by oons4nt or th4 oo;amiosloners* oourt, shall
hzve power to appoint in writing one or aOr aesietants, not to
4roeed three, ror their respeotive Countlea, who shall havr the
I same powers, nuthorlty and gualliiOation8 as their prinolpals,
at whose will th4y ehall hold oifice. Article 331, was enacted
in 1891, and applied only to the appointsent 0s aaiistant OountY
attorneys. Art1014 $908, Vernon’a Annotat4d Civil 3tntutaa. as
am4nd46, is 8 later statute, r4g .rding the appoint-Wnt Of de-
putias, assistants or olerks by dlatriot oounty or pr4OinOt
orriosrs. Articles 331 and 3902 must be oonsldsr46 and oonstrued
together, In view oi Mese statutes, it ls~our ODinion, that
a4slstaBts of the County Attorney or Rusk OouBtY must be appointed
ln oomplianoe with said statutes, Considering th4 two statutes
together, it is our opinion that it is within the dleoretion of
the oommissioners* oourt to determine ths number Of assistants
to br appoint,&, as in th4 disor4tion of said oourt may b4 proper-
Stat4d another way, that portion of Art1014 331 limiting the uum-
ber of assistants that mny be appointed is no longer applioable,
however, the other portions of Art1014 331 ar4 applioabl4 and the
assistants must oonply with th4 provisions of said statuts. Seo-
tlon 2 of Article 3902 is appllcabl4 to Rusk County and will govern
the.oompsnsatlon to be paid the assistant county attorney. The
comp4nsatlon or the first aeeistant oounty attorney oemnot 4xe44d
$2,000 per aMUQ and th4 oomp4nsation of other assistants of the
oounty attorn4y oannot 4x0446 41,700 p4r annum 4soh. Ths oom-
p4nsation of said assistants to b4 flxsd by the comml4sioners*
oourt in oomplianoa with Section 2 Of i&i014 3802.
W4 hsv4 oareiully oonsldrrsd your letter of Uaroh 1,
1944, supplemsntlng your letter of yebruery 24, 1944, whioh is
quoted in part above. hrter oar4fu!.ly oonsidering Art lcle 326n,
VBrnon’s Annotet4d Civil Statutes, olted in your letter of Sarah 1,
x4 are of the opinion that said statut4 has no applioation whatso-
4Per to the questions under oonelderation.
W4 h~iv4 also oaretully oonsid4red th4 various Acts
orsating ths dlfrarent District Courts in Rusk County, and it is
OUTopinion that theo4 AOtS do not airsot our answers to your
W44tions as her4toror4 stated, Art1014 V, i%otlon 21 or the
Stat4 Constitution, among other things, provides, 1B ;rfect, that
the bgislature may provldr for the eleotion of district attorneys
in said districts as may be deemed neoessary and make provtsion
for the comp4nsation or said district attornrys, Aft4r car4-
rullY r4Vi4Wlng krtiol4 322, Vernon's Annotated Cl*11 Statutes
It is noted that said statute does not authoris4 th4 eleotion &
a di4trict attorney for any of the Judicial Districts or Rusk County.
Therefor4, there is no statutory authority authorizing the oleotlon
Or a distriot attorney for said oounty or the Judicial Dirtriots
thereor.
EC----
!
440
Iionorable Jo8 C. Oladney, pago 5
You oteto In your lottetr of Yaroh lrt that yooo
ara anxious to know what ofi oxfat In Ruek oomty at thla
tine, that is, lf it i8 County Attorney, Criminal District At-
torney or Dirtriot Attorney. In via* of the f orsgolng, you
are reepeotiully advised that it 18 our opinion that the oon-
etitutlonal 0rri08 0r County Attorney rxiatr in m8k cotrnty
at thlr tlao, and that tha offloe oi Criminal District Attorney
or Di8triot Attorney do88 not 8xi8t.
Your8 very truly
AT!l'ORNEY OF TEXAS
GENERAL
Ardrll William8
Ao8istant
AW:EP