              E             NEu     GENE

                             EXAS




Honorable Steve Latham                     Opinion No.   C-378
County Attorney
Hill County                                Re:   Whether a County
Hillsboro, Texas                                 Attorney may rep-
                                                 resent himself in
                                                 the trial of a
                                                 misdemeanor charge
                                                 filed in another
                                                 county.

Dear'Mr. Latham:

          Your letter concerning the above captioned question
reads in part as follows:

           "In accordance with Article 4399 of
     Vernon's Civil Statutes, the opinion of the
     Attorney General is requested on the follow-
     ing question:

          "May a County Attorney of one County rep-
     resent himself on the trial of a misdemelanor
     charge filed in another County?

          "The following facts are pe~rtinent: The
     undersigned County Attorney of Hill County has
     been charged with a misdemeanor game violation
     in Mason County."

          Article 32 of Vernon's Code of Criminal Procedure
provides as follows:

          "District and County Attorneys shall not
     be of counsel adversely to the State in any case,
     in any court, nor shall they, after they cease
     to be such officers, be of counsel adversely to
     the State in any case in which they have been
     counsel for the State."

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                                                                   .




Hon. Steve Latham, page 2 (C-378)


     We are not deciding whether a District or County Attor-
ney who represents himself on the trial of a misdemeanor charge
is "of counsel" as that term is used in irticle 32, supra, but
for the purpose of this opinion, even if such attorney is "of
counsel", it is our opinion, based upon the following authori-
ties, that such Article should be construed so as to except
from its prohibition the right of such attorneys to represent
themselves.

     The legislative power which has been vested in our State
is plenary and complete except as that power is limited by the
State Constitution or by the Federal Constitution.  Ferquson v.
Maddox, 114 Tex. 85, 263, S.W. 888 (1924); Terre11 v. King,
118 Tex. 237, 14 S.N.2d 786 (1929).

     Ye believe that Article 32, Vernon's Code of Criminal
Procedure, is generally sound and serves a legitimate legis-
lative purpose. Were it not that its terms seem to prohibit
absolutely a county or district attorney from defending him-
self against any criminal charges lodged against him, ex-
cept upon resignation from office, its constitutionality
would not be open to doubt.

      However, the freedom to participate in the preparation
of one's own defense is a fundamental right guaranteed by
both the State and Federal Constitutions.   U. S. Const. Amend-
ment VI: Tex. Cnst. Art. I, Sec. 10; Anselin V. State, 160
s .%. 713 (Tex. Crim. 1913).

     Although public office iS a privilege and not a right,
a person cannot normally be barred from public office for
exercise of his constitutional rights.   "...we need not pause
to consider whether an abstract right to public employment
exists.  It is sufficient to say that constitutional pro-
tection does extend to the public servant whose exclusion
pursuant to a statute is patently arbi,krary or discriminatory."
Wieman v. Updeqraff, 344 TJ.S. 153 at page 192, 73 S.Ct. 215,
97 L.Cd. 21G (1952): II. . .that a person is not compelled to
hold &zblic office cannot possibly be an excuse for barring him
from office by state imposed criteria forbidden by the Consti-
tution.   . . ." Torcaso v. Watkins, 367 U.S. 488 at pages 495,
496; 81 S.Ct. 1680, 7 L.Ed,2d 982 (1961).

     Moreover, even if some compelling reason may be shown

                            -1796-
Hon. Steve Latham, page 3 (C-3781


for restricting the exercise of constitutional rights, the
burden is on the State to show necessity and that no al-
ternative forms of regulation not restrictive on constitu-
tional rights would suffice.   "In a series of decisions
this Court has held that even though the governmental pur-
pose be legitimate and substantial, that purpose cannot be
pursued by means that broadly stifle fundamental personal
liberties when the end can be more narrowly achieved.    The
breadth of legislative abridgment must be viewed in the
light of less drastic means for achieving the same basic
purpose." Shelton v. Tucker, 364 U.S. 479 at page 488, 81
S.Ct. 247, 5 L.Ed.2d 231 (1960).

     In its desire to guard the public against improper
administration by district or county attorneys, the Legis-
lature appears to have deemed it proper to forbid disloyalty
by enactment of Article 32 to strike down all possibly dis-
loyal acts, rather than attempt to separate the harmless and
the harmful.

     In most cases this would be within the Legislature's
power since it is normally neither necessary nor desirable
to permit county or district attorneys to act in two capa-
cities in their normal dealings with the State. Article 32
would become unconstitutional only if it infringes on the
constitutional right to defend oneself against criminal pro-
secution when the public welfare does not require such
stringent protection. We think it clear such stringent pro-
tection is not required under the fact situation about which
you have inquired. However, we wish to reemphasize the consti-
tutionality of Article 32 generally and stress that we express
no opinion with respect to fact situations which go beyond
the one here involved.

      The Supreme Court of Texas has declared, 'I. . .it is a
well settled rule of statutory construction that where the
language of a statute is broad enough to cove,r matters with-
out, as well as within, the power of the Legislature to en-
act, courts should construe, the statute, in a restricted man-
ner , as applying only to matters lying within the legisla-
tive power. This rule should be applied in all instances
unle,ss the statute itself clearly indicate,s otherwise.  + F .'I
Waco v. Landinqham, 138 Tex. 156, 157 S.W.Zd 631 at page 633
 (1941).

                            -1797-
Hon. Steve Latham, page 4 (C-378)


     Pursuant to the above, we conclude that Article 32,
Vernon's Code of Criminal Procedure, must be construed so
as to except from its prohibitions the right to defend one-
self against a misdemeanor charge brought in another county.
Any other construction would render it unconstitutional in
violation of U. S. Const. Amendment VP, and Texas Const.
Art. I, Sec. 10.

                     SUMMARY

     Article 32, Vernon's Code of Criminal Procedure,
should be construed so as to except from its prohibi-
tion the right of a county attorney to represent himself
on the trial of a misdemeanor ~charge brought in another
county. Any other construction would render it unconsti-
tutional in violation of U.S. Const. Amendment VI and Texas
Const. Art. I. Sec. 10.

                               Very truly yours,

                               WAGGONER CARR
                               Attorney General


                               By<
                                     L, J. (Larry) Craddock
                                     Assistant

LJC:sj:mkh:clm


APPROVED:
OPINION COMMITTEE

W. V. Geppert, Chairman
Howard Fender
Malcolm Quick
Kerns Taylor
James Strock

APPROVED FOR THE ATTOPNEY GENERAL
BY: Stanton Stone




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