                      January 21, 1970                         .
                                         i                         I

Honorable William B. Mobley, Jr.
District Attorney
105th Judicial District
Nueces County Courthouse
Corpus Christi, Texas 78401      Opinion No. M-560
                                Re:   Right of District
                                      Attorney to retain
                                      10% of civil penalties
                                      collected by suits
                                      under Article 762ld-1,
                                      V.C.S., where he re-
                                      presents the Texas
                                      Parks and Wildlife
                                      Department under
                                      said Texas Water
Dear Mr. Mobley:                      Quality Act.
      You have requested our opinion as to whether your
office can retain 10% of the civil penalties collec,ted
by you in direct suits brought on behalf of the Parks
and Wildlife Department under the Texas Water @ua!ity Act
(Chapter 760, Acts of the 61st Leg., R-S., page X.:+8).
Your request states:
      "To what extent, if any does Sec. &.04(e)
       of the 1969 Amendment to Tex.Cfv. Stats. Art.
       7621d-1 (Vernon's Tex. Sess. Law Sv. Vo?.*5,
       Chap. 760, p. 22&8) accomplish a repeaalby
       implication of the provisions codified in
       Vernon's Ann. Tex. Code Grim. Proc. 1965, Vo,l.
       5, p- 677> Art. 1007."
      If you, as District Attorney have any right to
retain such money, it must be done pursuant to Article
1007, Vernon's C;odeof Criminal Procedure. This is en
1879 law which,resds AS follows.




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Honorable Willaim B. Mobley, Jr. page 2 (M-560)



     "The district or county attorney shall be
      entitled to ten per cent of all fines, forfeitures
      or moneys collected for the State or county
      upon judgments recovered by him; and the cl;rk
      of the court in which said judgments are rendered
      shall be entitled to five per cent of the amount
      of said judgments, to be paid out of the amount
      when collected. Acts 1879, p. 133.” (Emphasis
      Added.)
      The pertinent sections of the Texas Water cuality Act
authorizing Texas Parks and Wildlife Department to
initiate a direct suit by you to abate water pollution
read as follows:
     "(b) Whenever it appears that a violation or
      a threat of violation of any provision of Section
      4.01 of this Act or any rule, regulation, permit,
      or other order of the board has occurred or is
      occurring that affects aquatic life or wildlife,
      the Parks and Wildlife Department, in the same
      manner as the board, may cause suit to be
      instituted in a district court for injunctive
      relief or civil penalties, or both, as
      authorized in Subsection (a) of Section 4.02
      of this Act, against the person who committed or
      is committing, or is threatening to commit, the
      violation. The suit shall be brought in the name
      of the State of Texas through the county attorney
      or the district attorney, as appropriate, of the
      county where the defendant resides or in the
      county where the violation or threat of violation
      occurs.
                       ***x*+4

     "Sec. 4.04. (e) All civil penalties recc'vered
      in suits instituted under this Act by the
      State of Texas through th board or the Parks
      and Wildlife Department sEalI.be paid to thr
      General Revenue Fund of the State of Texas."
      (Emphasis added.)




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.




        Honorable William B. Mobley, Jr., page 3 (~-560)




              The rule applicable in ,thiscase is found in Runt
        v, Atkinson, County Judge, 12. S.W.2d 142 (Tex. Corn.
        App. 1929), wherein Lhe Court holds at page 145 as follows:
              I! .. ..Where two statutes cover the same subject
              the one general and the other special, the
              special statute will control, not upon any
              theory of implied repeal, but upon the broad
              rule that all parts of the act or statutes
              must stand if possible, and that the inten-
              tions of the Legislature is more clearly re-
              fleeted by the special statute than by the
              general one. Both are permitted to stand,
              the special article or enumeration being
              treated as though it were a proviso except-
              ing something from the general rule."
              The 1879 general statute allowing a District Attorney
        to re,tain10% of all moneys collected for the State must
        yield to the 1969 expressfon of the Legislature directing
        that all cfvil penalties collected by you in water
        pollu~n   cases must be pl&ced in the State General
        Revenue Fund.
              Your attention is also invited to the Texas Supreme
        Court h&ding concerning a statute havfng substantially
        the same language as that contained in Article 1007, supra>
        wherein it was held that such language is not deemed to
        apply to actions by the State brought to recover @vi1
        r;;;;;;tese S~tatevL mrt, g6 Tex. 102, 70 s,W. 947
                 In i?iTZECiStaTe v. %m~ell, 53 Tex, 427 (r880).

                             SUMMARY
                             -------
              SectEon &.03(e), of Article 7621d-i, VernonEs
              Civil Statutes, cor.trolsov,erthe provisIon
              of ArtI-1.e3.007,Ver~nQ s Code of Criminal
              Prscedure, ts the ext.entof ebnyconflict
              between the two laws. A Dist:rfctA,ttorney
              may not retain a perzntage of moneys
              col,!.ected
                        as cfvil penalt9es i.ncivil
              suits which he fnitz!.ateson behalf of the
              Parks an:3WfX'! j,?nDepartme?,?t:.:
                                                abate water
              pollution.




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Honorable William B. Mobley, Jr., page 4 (M-560)




                             Your very truly
                                A




                                     General of Texas
Prepared by Roger Tyler
Assistant Attorney General
APPROVED
OPINION COMMITTEE
Kerns Taylor, Chairman
Alfred Walker, Co-Chairman
Richard Chote
Brandon B. Bickett
James Quick
Wayne Rodgers
MEADE F. GRIFFIN
Staff Iegal Assistant
NOLA WHITE
First AssEstant




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