            THEA         ORNEY         GENERAL

                        OFTEXAS
                       AUSTIN   ~~.TEXAS



                         June 7, 1962

Mr. Guy E. Jones          Opinion No. WW-13 53
County Attorney
Bowie County             Re:    May a City Attorney legally repre-
Texarkana, Texas                sent the State in the prosecution
                                of criminal cases in the District
                                Court involving violation of the
                                penal laws of Texas on appeal from
                                Corporation Court of the City and
Dear Mr. Jones:                 related questions.
          You have requested an opinion from this office upon the
questions of:
         "1. May a City Attorney, or his assistants,
    legally represent the State in the prosecution in
    the District Court of criminal cases involving
    violation of the penal laws of Texas on appeal
    from Corporation Court of the City?

         "2. May a City Attorney, or his assistants
    legally represent the State in the prosecution in
    the District Court of criminal cases involving
    violation of city ordinances on appeal from Corpor-
    ation Court of the City?
         "3 . If the answer to either of the above
    questions is "yes", is it necessary that the County
    Attorney be present in the District Court at the
    trial of such cases on appeal?"
          In your letter you also stated that the City Attorney and
County Attorney, as well as the District Judge, had consented to an
arrangement whereby the City Attorney or his assistants would.par-
ticipate in the appeals from the Corporation Court of the City of
Texarkana.
          Appeals from the Corporation Court of the City of Texar-
kana would be to the District Court of Bowie County, as the provi-
sions of Article 1970-306, Vernon's Civil Statutes, confer upon
the District Court certain criminal jurisdiction exercised by the
County Court of Bowie County prior to the enactment of Article
1970-306.
Mr. Guy E. Jones, page 2   (WW-1353)


          While in Attorney General's Opinion No. WW-1302 (1962)
this,office held that the primary responsibility and duty of
prosecuting cases appealed from a Corporation Court to a County
Court involving penal laws of this State rests upon the County
Attorney, such opinion did not deal with the issue of whether the
City Attorney and his assistants may participate in the further
prosecution of cases appealed from Corporation Court.
          In Burkhard v. The State, 18 Tex.Crim. 599 (1885),   the
court held that:
          "There is no law of this State prohibiting
     counsel other than the district and county attor-
     ney from appearing and prosecuting a cause in be-
     half of the State. It has been the practice al-
     ways in this State to permit attorneys employed
     by private prosecutors to assist the district or
     county attorney in the prosecution of a case.
     This practice has been known to all the Legisla-
     tures that have assembled in the State, and if
     it be an illegal or improper practice, as is con-
     tended by counsel for defendant, it is indeed
     strange that it has been so long and so univer-
     sally tolerated by the law-making power and
     sanctioned by the courts. It seems that, in some
     States, this practice is now allowed. But in
     most of the States it is sanctioned. It is, how-
     ever, the duty of the district or county attorney
     to reserve to himself the direction of the case.
     This he should never surrender to assistant coun-
     sel. . . .I1
          See also, 15-A Tex.Jur. 502, District and Prosecuting
Attorneys, Sec. 16.
          In Phillios v. State, 263 S.W.2d 159 (Tex.Crim. 1953),
the court held that:
          "Counsel other than the district or county
     attorney may appear and prosecute or assist in the
     prosecution of a cause in behalf of the state."
and in Loshe v. State, 272 S.W.2d 517 (Tex.Crim. 195&), the court
further held that:
          "He first contends that the trial court erred
     in allowing Honorable Norman Barr of the San Angelo
     bar to participate in the trial as a special prose-
     cutor. This Court has recently held against appel-
     lant's contention in Phillips v. State, Tex.Cr.App.,
     263 S.W.2d 159."
         c




Mr. Guy E. Jones, page 3     mw-1353)


          The heretofore cited cases are ample authority for the
position that an attorney, other than the District or County
Attorney or their assistants, may participate in or represent the
State in criminal cases before the County and District Courts.
The fact that such attorney might be a City Attorney or one of
his assistants would in no way act as a prohibition in view of
the case of Shooue,v. State,,38 S.W.2d 793 (Tex.Crim. 1931) where
the Court held:
          "One who holds the office of county judge and
     who is a lawyer is privileged to practice law in the
     district court. The complaint of the fact that the
     private prosecutor representing the state was also
     the county judge is without merit."
          In view of the foregoing, we are of the opinion that
your first two questions should be answered in the affirmative,
as, under the~facts stated, the City Attorney or his assistants
may legally represent the State in criminal cases appealed to the
District Court of Bowie County from the Corporation Court of the
City of Texarkana in cases involving both violations of the penal
laws of this State and ordinances of the City of Texarkana.
          As to your third question concerning whether it is ne-
cessary that the County Attorney actually be present in the Dis-
trict Court during the trial of the cases on appeal from the
Corporation Court of the City of Texarkana, we are of the opinion
that the actual physical presence of the County Attorney would
not be absolutely necessary. In the case of Butler v. State, 299
S.W. 420 (Tex.Cri.m.1927) the court in its opinion stated that:
          "Objection was made by appellant to the prose-
     cution of the case against him by an attorney appointed
     by the court. His bill of exception shows that there
     was no county attorney of Calhoun County and that the
     district attorney was absent. Article 31 of the Code
     of Criminal Procedure expressly authorizes the appoint-
     ment of an attorney to represent the state when the
     district or county attorney fails to attend any term
     of the district, county, or justice court. The informa-
     tion was filed in this case by the district attorney
     of Calhoun County. Under these facts, the court did
     not err in appointing an attorney to prosecute the
     case. Younger v. State, 76 Tex.Cr.R. 243, 173 S.W.
     1039."
Also in the case of Davis,              188 S.W.2d 397 (Tex.Crim. 1945)
the court held that:
Mr. Guy E. Jones, page 4   (W-1353)


          II
          . . .  appellant complains because Jimmie Mac-
    Nicoll, who was not the District Attorney, nor an
    Assistant District Attorney of Dallas County, was
    permitted to participate in the prosecution of appel-
    lant. . . . The bill fails to disclose any act
    which the special prosecutor did that was improper
    or was done without the consent or approval of the
    Assistant District Attorney. We see no inhibition in
    the statute referred to against any lawyer, with the
    consent and approval of the District Attorney, or his
    assistant, from participating in the prosecution of
    anyone accused of a violation of the laws of this
    state. . . .I'
          While there would be no question that the City Attorney
or his assistant could participate or assist the County Attorney
in prosecution of appeals from Corporation Court when the County
Attorney is physically present in court, it would seem equally
clear that if the County Attorney is not present and the defendant
raised an objection upon this point the court would have the au-
thority to designate the City Attorney or his assistant, pursuant
to Article 31, Vernon's Code of Criminal Procedure, as the attor-
ney to represent the State. This would be especially true if the
County Attorney had participated in the filing of the prosecution
as the court stated in Garcia v. Laughlin, 155 Tex. 261, 285 S.W.
2d 191 (1956)that:
          "In State Board of Dental Examiners v. Bickham,,
     supra [2O3 S.W.2d 5661, the court says:
        "I*** Nor may the State be represented in the dis-
    trict or inferior courts by any person other than the
    county or district attorney, unless such officer joins
    therein. Allen v. Fisher, 118 Tex. 38, 9 S.W.2d 731;
    State ex rel. Downs v. Barney, Tex.Civ.App. 164 S.W.
    2d 55, ***In

                             SUMMARY
         The City Attorney or his assistants with the
    consent of the County Attorney may, under the facts
    stated, legally represent the State,in criminal cases
    appealed to the District Court of Bowie County from
    the Corporation Court of the City of Texarkana in
    cases involving violations of the penal laws of this
    State and ordinances of the City of Texarkana.
          It would not be absolutely necessary for the
     County Attorney to be physically present in the court
        c




Wr. Guy E. Jones, page 5   (W-1353)


      room during the trial of such appeals from the
      Corporation Court of the City of Texarkana as
      the District Court would have authority to ap-
      point the City Attorney or one of his assistants
      to represent the State in such prosecutions
      should any objection be raised by the defendant.
                               Very truly yours,
                               WILL WILSON
                               Attorney General of Texas



                                    Pat Bailey
PB:wb                               Assistant
APPROVED:
OPINION COMMITTEE
W. TJ.Geppert, Chairman
Sam Stone
Grundy Williams
C. J. Taylor
John Hofmann
REVIEWED FOR THE ATTORNEY GENERAL
BY:   Leonard Passmore
