                                      :Aprfl,6,-.1939.,



Mr. Weayer ,H. Baker
District Attorney
Junction, Texas,

Dear Sir:                         Opinion No. 9-481~
                                  Re:~ Is it ~the mandatory .duty of a district
                                        $ttorney,to   ass,ist a county attorney
                                        in condemnation      ,proceedings      in-itiated
                                        by the Comm~ssioners~            Court f0r.a
                                        purpose of .obtaining a right-of-way
                                     ’ for a public road or. in defense -of a
                                        lawsuit by a land owner against the
                                        county.without     comp,ensation other
                                        than.now~all,owed?~
                                                                ‘,&I’...
                 your re&est    fo,r an’ opinion on..&      above statediuestion
has been    received by this : office .,.

                 Section   21, Article    5 of the. Texas   Constitution    reads;   in
part,   as follows::           ,.  ~,

               .~UThe c,ounty dttorneys shall ~re&es-e’nt the States”.
        in all cases in the district and inferior courts in their
        respective   counties; but if any county shall be included
        in a district inwhich there shall be a d~istrict~attorney,
        the respective   duties of district attorneys and county at-
        torneys shall in such co&ties      be regulated by the Legis-
        lature . ”

               In counties’where   there is a district attorney and also a
county attorney, the Legislature    may;provide    for performance     of their
respective  duties.  This constitutes   an important limitation!‘on the powers
or duties of county attorneys.    By various enactments      it has been pro-
vided that in the absence of the county attorney the district attorney shall
discharge  the duties imposed by law on county attorneys,        and vice versa.
But in the absence of such a law the duty of.~the .district or c:ounty attorney
so to act may not be implied; nor has he such powers.          State vs. Texas
Central Railroad Co., 100 SW 663, Tex.Jur.       Vol. 15, page 408.
Mr.   Weaver   H. Baker,   April       6, 1939, Page 2




                Title 15 of the Revised Civil Statutes, 1925, Article    321 to
341, inclusive,  and Chapter 2, Articles    25 to 32, ~inclusive of the Code
of Criminal Procedure,      1925 contains general provisions     with reference
to county and district attorneys.     In these statutes we find under Article
334, Revised Civil Statutes, that these attorneys      shall advise and give
opinions to various county and precinct officers,       but this does not mean
that the Commissioners’      Court is required to employ the county attorney
or district attorney in all civil suits nor does it mean that the county at-
torney, or district-attorney    has the right to represent the county in such
suits.   The district attorney and the county attorney are ‘not obliged to
represent the county in any aiviliaction     except where the statutes so pro-
vide.  The main purpose of the Constitution,      creating the offices of dis-
trict attorney and county attorney, was to make as the main function of
those officers to prosecute criminal cases as stated by the Supreme
Court in the case of Brady vs. Brooks, 89 SW 1052. However, the Legis-
lature has from time to time conferred additional duties, but we are un-
able to find any statutory provision that imposesany       duties upon the .dis-
trict attorney or makes him the representative        of the county in condem-
nation proceedings;

               You are respectfully  advised that it is the opinion of this
Department that’the statutes impose’no      duty upon the district attorney
to assist the county attorney in condemnation     proceedings   initiated by
the Commissioners’    Court for,the purpose of dbtaining a right-of-way
for a public road or in defense of a lawsuit by a land owner aga,inst the
county in such condemnation    proceedings.

               You are further advised that the Commissioners?      Court
may contract   with the district attorney to assist the county attorney in
condemnation   proceedings    and provide fbr his compensation  in such
contract.

               Trusting    that the foregoing         answers     your inquiry,      we remain

                                         Very     truly yours’,

                                        ATTORNEY          GENERAL            OF TEXAS

                                         By /s/     Ardell’ Williams              ~’
                                                   ‘Ardell: Williams,        Assistant
AW:AW:he
APPROVED:
/s/ GERALD C. MANN
ATTORNEY  GENERAL           OF’TEXAS~                      .’           ‘,

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