           THE        A-ITORNETC       GENERAL
                         ~DPTEXAS




Hon. L. Dewitt Hale                    Opinion No.M-856
Chairman, Judiciary Committee
House of Representatives               Re: Constitutionality of H.B.
State Capitol                              784, permitting an
Austin, Texas 78711                        individual to petition for
                                           leave to file an informa-
                                           tion in the nature of a
                                           quo warranto.
Dear Representative   Hale:

     You have requested our opinion on the validity of H.B. 784
of the 62nd Legislature, Regular Session.

     House Bill 784 attempts to amend Article 6253, Vernon's
Civil Statutes, so as to permit an individual to petition for
leave to file an information in the nature of a quo warrant0
without the necessity of such suit being brought by the Attorney
General or District Attorney or County Attorney of the proper
county or district.

      It is our opinion that such an amendment interferes with
the constitutional power and duty of the Attorney General, the
District Attorneys and County Attorneys, who are required to
represent the State insuch a suit and no one else may do so.
Article IV, Section 22, Texas Constitution: Article V, Section 21,
Texas Constitution: Staples v. State, ex rel Kinq, 112 Tex. 61,
245 S.W. 639 (1922); Maud v. Terrell, 109 Tex. 97, 200 S.W. 375
 (1918); Adamson v. Connally, 112 S.W:2d 287 (Tex.Civ.App. 1937,
no writ): Yett v. Cook, 115 Tex. 205, 281 S.W. 837 (1926);
Mulcahv v. Houston Steel Drum Company, 402 S.W.2d 817 (Tex.Civ.
App. 1966, no writ). The very nature of a quo warrant0 proceeding
is to call into question by what authority the office or




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Hon. L. Dewitt Hale, page 2                        (M-856)


franchise is exercised.  The State is always a necessary party,
and it is not available to a private citizen in his capacity
as such. See Texas Practice, Lowe and Archer, Sec. 541, page 497.

     In Adamson v. Connallv, supra, the Court stated the rule as
follows:

           ?An action of quo warranto, or information in
     the nature of quo warranto, is a suit to which the
     state is a party plaintiff. R.S. 1925, art. 6253.
     Such an action must be brought by the Attorney General
     or the district or county attorney of the county or
     district. Const. art. 4. Section 22; Id. art. 5,
     Section 21. The Legislature would have no constitutional
     power to authorize such an action to,be brouqht by any
     other person without one of the officers named."
      (Emphasis added.)

     In view of the foregoing, you are advised that H.B. 784 of
the 62nd Legislature, Regular Session, is unconstitutional.

                              SUMMARY

               H.B. 784 of the 62nd Legislature, Regular
          Session, purporting to permit an individual
          to petition for leave to file an information
          in the nature of a quo warrant0 without the
          suit being brought by the Attorney General or
          the District Attorney or County Attorney is
          unconstitutional.  Article IV, Section 22, and
          Article V, Section 21, of the Texas Constitution.

                                      Ver,druly   yours,/)




                                                  neral of Texas

Prepared by John Reeves
                                      Attorney
                                          IF
Assistant Attorney General



                             -4154-
Hon. L. Dewitt Hale, page 2         (M-856)


APPROVED:
OPINION COMMITTEE

Kerns Taylor, Chairman
W. E. Allen, Co-Chairman
Max Hamilton
Lewis Jones
James McCoy
James Swearingen

MEADE F. GRIFFIN
Staff Legal Assistant

ALFRED WALKER
Executive Assistant

NOLA WHITE
First Assistant




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