       WE       ATTORNEY           GENERAL
                    OFTEXAS




                   April 8, 1953


Hon. Ottis E. Lock, Chairman
Senate Finance Committee
53rd Legislature
Austin, Texas            Opinion No. S-26
                           'Re: Constitutionality of
Dear Sir:                      rehouseBill 561.
          You have requested an opinion of the'constitu-
tionallty of House Bill 561 of the 53rd Legislature
creating the office of District Attorne for the Crim-
lnal District Court of Harris Co,unty,atolishing the
office of Criminal District Attorney of Harris County
and transferring all civil matters to the County Attorney
of Harris County.
          Ho,useBill 561 and its companion, Ho,useBill
562, create the office of District Attorney'for the Crim-
inal District Co~urtof Harris Co~unty,abolish the,office
of Criminal District Attorney of Harris County, create
the office of.County Attorney for Harris Co,untyand pre-
scribe the d,uties of each office.

          T-t,
             I& nnw well settled that the Legislature is
vested with the power to create the office of District
Attorney and County Attorney, and prescribe their respec-
tive duties pursuant to the~provisions of Section 21 of
Article V of the Constftution of Texas. Reed v. Triplett,
232 S.W.2d 169 (Tex,Civ.App. 1950, error ref.); Neal v*
Sheppard, 209 S.W,2d 388, (Tex.Civ.App. 1948, error ref.);
Jones v.~Anderson, 189 S.W.2d~65 (Tex.Civ.App. 1945,error
ref.).
            It is stated in Reed v. Triplett:
          "The 51st Legislature was undoubtedly
     vested with power, had it deemed such action
                                                             .   _



Hon. Ottis E. Lock, page 2 (S-26)


    necessary, to have created the office of
    criminal district attorney In the 66th
    Judicial District composed of Hill County
    and to have abolished the office of county
    attorney in that county. Jones v. Anderson,
    Tex.Civ.App., 189 S.W.2d 65, er.ref.j Neal
    v. Sheppard, Tex.Civ.App., 209 S.W.2d 388,
    er.ref. But the Legislature did not attempt
    to exercise any such power by the enactment
    of Art. 322~ of Vernon's Tex.Civ.Stats, It
    merely created the office of district at-
    torney in the 66th Judicial District of Hill
    County without abolishing or attempting to
    abolish the office of county attorney in
    that county. We see no Constitutional in-
    hibition against the exercise of such power,
    even though the judicial district within
    which the office of district attorney was
    created consists only of Hill County . . 0'
          You are therefore advis,edthat House Bill 561
and House Bill 562 are constitutional. We deem it
advisable to point out, however, that Section 21 of
Article V of the Constitution provides that "A county
attorney, for counties in which there is not a resident
criminal district attorney, shall be elected by the
qualified voters of each county, who shall be commissioned
by the Governor, and hold his office for the term of two
years." In view of this provision, House Bill 561 abollsh-
ing the office of Criminal District Attorney of Harris~
County and creating the'offic~eof DlBtrUztAttomey   fork
the Criminal District Court of Harris County should be
enacted prior to House Bill 562 creating the office of
County Attorney.
                       SUMMARY
          House Bill 561 and House Bill 562 abol-
     ishing the office of Criminal District At-
     torney of Harris County, creating,the office
     of District Attorney for the Criminal District
Hon. Ottis E. Lock, page 3 (S-26)


     Court of Harris County, and creating the
     office of County Attorney for Harris
     County are constitutional.
                                Yours very truly,
APPROVED:                       JOHN BEN SREPPERD
                                Attorney General
J. C. Davis, Jr.
County Affairs Division
C. K. Richards
Reviewer                        By&e*
                                          Assistant
Robert S. Trotti
First Assistant
John Ben Shepperd
Attorney General
JR:am
