Untitled Texas Attorney General Opinion ( 1942 )

GERALD C. MANN &JSTXN 11. %-F-
a-
Honorable Coke R. Stevenson
Governor of the State of Texas
Austin, Texa,s
Opinion No. O-5001
Dear Governor Stevenson: Re: Authority of Governor to fill
by appointment vacancy in
office of Criminal District
Attorney created by Article
326q, Vernon’s Revised Civil
Statutes.
You have requested the opinion of this department on the question
whether it is the duty of the Governor, or of the Commissioners’ Court.of
Grayson County, to make. an appointment to fill a vacancy in the office of
Criminal District Attorney of Grayson $Zounty, which office is created by
the provisions of Article 326q. Vernon’s Revised Civil Statutes of Texas.
Constitution, Article 4, Section 12, provides that:
“All vacancies in State or district offices, except members
of the Legislature, shall be filled, unless otherwise provided by
law, by appointment by the Governor. . . .”
Article 326q, Vernon’s Revised Civil Statutes, applies only to
those counties in this State having a population of not less than 33,500 and
not more than 75,000 inhabitants, and which do not contain a city of more
than 50,000 inhabitants, and in which counties there are one or more judi-
cial districts. and in which the County Attorney performs the duties of
County Attorney and District Attorney, and in ‘which there is not now a
District Attorney. Grayson County meets these requirements.
In the counties to which it’appiies, Article 326q undertakes to
create the office of Criminal District Attorney. The Act provides that
such Criminal District Attorney shall have and exercise all the powers,
duties and prtvileges within such counties as are by law conferred upon
District and County Attorneys. It further provides that the person who is
Honorable Coke R. Stevenson, Page 2 (o-5001)
at the time of the passage of the law the County Attorney of such county,
shall be and become the Criminal District Attorney of the county until
the next general election and until his successor shall be elected and
qualified.
Section 5a of the Act provides:
“It is not the intention of this Act to create any office of
District Attorney nor any other constitutional office and the
office of Criminal District Attorney is hereby declared to be
a separate and distinct office from the constitutional office
of District Attorney and no Criminal District Attorney shall
draw or be entitled to any salary whatsoever from the State
of Texas.”
The Act undertakes to create a “district office”. If it is valid,
therefore, Article 4, Section 12 of the Constitution would authorize the
Governor to fill the vacancy therein, since the Legislature has made no
provision for filling the vacancy otherwise than by the appointment of
the Governor.
Section 21, Article 5, of our State Constitution provides:
“A county attorneys, for counties in which there is not a
resident criminal district attorney, shall be elected by the
qualified voters of each county, who shall be commissioned
by the Governor, and hold his office for the term of two years.
In case of vacancy the Commissioners’ Court of the county
shall have power to appoint a county attorney until the next
general election. The county attorneys shall represent the
State in all cases in the District and inferior courts in their
respective counties; but if any county shall be included in a
district in which there shall be a district attorney, the res-
pective duties of district attorneys and county attorneys
shall in such counties be regulated by the Legislature. The
Legislature may provide for the election of district attorneys
in such districts, as may be deemed necessary, and make pro-
vision for the compensation of district attorneys, and county
attorneys; provided, district attorneys shall receive an annual
salary of five hundred dollars, to be paid by the State, and such
fees, commissions and perquisites as may be provided by law.
- .. .
Honorable Coke R. Stevenson, Page 3
County Attorneys shall receive as compensation only such
fees, commissions and perquisites as may be prescribed
by law.”
This Section of the Constitution provides for the offices of County
Attorney and District Attorney. It expressly authorizes the Legislature to
provide for the election of District Attorneys in such. districts as may be
deemed necessary. Each of the offices provided for by that’Scction of the
Constitution is a *constitutional office”. When the same Section speaks of
a “resident Criminal District Attorney”, it is clear that it refers to a
“District Atto,rney” with special functions or powers and duties. Whether
the ‘Criminal’ District Attorney is an attorney whose duty it is to serve
a “Criminal District Court”, or whether he is simply one who serves a
“District Court” of a district composed of a single county, it is here un-
necessary to decide. In either case, the office created is a’Clonstitutiona1
office” -- an office expressly authorized by the Constitution to be created
by the Legislature *in such districts as may be deemed necessary”.
Since in Section 5a of the Act under consideration, the Legisla-
ture has expressly disavowed the intention to creak “any office of District
Attorney or any other constitutional office”, the Act of necessity can not be
construed to be an exercise of the legislative power to create a “constitu-
tional office”.
The A~ct,.$hen. dots rot cr6ak the cm& qlbw$+.: office’of Criminal
District Attorney. It is the.refore a nullity, unless .tt,id’,rithin the legislative
power to create a purely statutory. as distinguished from a constitutional
office, to supersede the office of “County Attorney”. That the Legislature
does not have the power to creak such statutory office is made abundantly
clear in the decis~ions of the courts of this State. Article 5, Section 21, of
the Constitution, creates the office of County Attorney, and vests in the
County Attorney the authority to represent the State in all cases in the
District and inferior courts in his county. It is only when the Legislature
exercises the authority conferred by that section of the Constitution to
create the office of District Attorney or Criminal District Attorney -- each
of them constitutional offices -- that the office of County Attorney may be
abolished, or the powers and duties conferred by the Constitution upon the
County Attorneys abridged.
* -- Where certain duties are imposed or specific powers
are conferred upon a designated officer, the Legislature cannot
j .
Honorable Coke R. Stevenson, Page 4
withdraw them from him, nor confer them upon others,
nor abridge them or interfere with the officer’s right
to exercise them, -- unless the Constitution expressly
so provides.” 34 Tex. Jut. p. 445, and authorities there
cited.
See: Moore v. Skk, 57 Tex. 307;
Maud, Tax Collector, v. Terre& Comptroller,
109 Tax. 97. 200 S.W. 375;
Howth v. Greer, 90 S.W. 2ll; writ denied;
Upton v. City of San Angelo, et al, 94 S.W. 436;
Harris County v. Stewart, 91 Tex. 133, 41 S.W. 650;
Camp et al v. Gulf Production Company et al,
61 S.W.2d 773;
Moore v. Bell, (Supreme Court) 66 S.W. 45;
Staples v. State ex rel King, 112 Tex. 61, 70.
245 S.W. 639;
Allen v. Fisher, 118 Tex. 38. 42, 9 S.W.2d 731;
Skk ex rel Downs, et al, V. Harney, Sheriff,
164 S.W.2d 55;
Adamson v. Connaly, 112 S.W.2d 287. 290.
Asabove stated, it is here unnecessary to determine whether the
Act would have been effective to creak the constitutional office of “Criminal
District Attorney”. To determine that question would require a decision
upon the question whether the term “resident Criminal District Attorney”
means an attorney whose duty it is to serve a “Criminal District Court”,
or whether it means an attorney to serve a “District Court” of a district
composed of a shingle county. This inquiry is made unnecessary by the
express legislative declaration that it was not the intention of the Legislature
in passing the Act to exercise the authority conferred by Article 5, Section
21, to creak the constitutional office of Criminal District Attorney.
Since the Act is a nullity. it follows that there is no office of
“Criminal District Attorney” to be filled in Grayson County. There still
exists, perforce of the provisions of Article 5, Section 21, the office of
County Attorney in such county, the vacancy in which is to be filled by
appointment of the Commissioners’ Court of said county, under the authority
conferred upon that court by Article 5, Section 21, of the Constitution.
APPROVED FEB 16, 1943 Very truly yours
/s/ Gerald C. Mann
ATTORNEY GENERAL OF TEXAS
ATTORNEY GENERAL OF TEXAS By /s/ R. W. Fairchild
R WF-MR
R. W. Fairchild
This Opinion Considered and
Assistant
Approved in Limited Conference.