State Ex Rel. Baughman v. Woodruff

PER CURIAM.

Defendants in error have filed their veri- . fied motion herein to dismiss plaintiffs in error’s application on the contentions therein set forth.

Plaintiffs in error, acting through one of their attorneys of record, have filed their verified answer to such motion to dismiss.

This proceeding is one such as can only be authorized and prosecuted by the state of Texas, acting through the county attorney, the district attorney, or the Attorney General. The record shows that the suit was filed by the county and district attorneys, as authorized by law. Neither of such officers participated in the proceedings in the trial court, in which court judgment was rendered against plaintiffs in error. Neither the county attorney nor the district attorney has participated in, nor has either affirmatively authorized, this appeal from the adverse judgment of the court below. The verified motion of plaintiffs in error here sets out that such officers have acquiesced in the action of the other parties in bringing the appeal, in that they have each been notified that the appeal would be prosecuted. In support of this contention, the plaintiffs in error attempting to appeal, request this court, if it has any doubt as to the intention or desire of such officers in connection with the appeal, to take the testimony of the county attorney and the district attorney.

This court is not required, nor do we deem it proper, to take any such action against such public officers to determine what their desires, intentions, or duties may be. As to whether it may be their duty to file, prosecute, or appeal this or any other case is a matter for their own determination, and we feel that their action or decision should be definitely and affirmatively expressed. We hold it to be the duty of the litigants and their counsel, not the court, to present the evidence and the desires and-contentions which they wish this court to consider.

It appears from the verified motion and the reply thereto that the state, through its proper officers, has not affirmatively authorized or joined in this appeal, for which reason, and on the authorities here cited, we find it our duty to grant the motion to dismiss the writ, and it is so ordered. State ex rel. Steele et al. v. Heath (Tex.Civ.App.) 44 S.W.(2d) 398; articles 6253-6258, Revised Statutes; Ætna Cas. & Surety Co. v. Woodward (Tex.Com.App.) 41 S.W.(2d) 674; Town of De Kalb et al. v. State ex rel. King (Tex.Civ.App.) 71 S.W.(2d) 299; 34 Tex.Jur. §§ 12-20, pp. 855-867.