                          April 11, 1961


Honorable Naomi HEUTEY                   opinion No, ~~-1036
County Attorney of Potter County
Amarillo, Texas                          Re:   Whether it is the official
                                               duty of the County Attorney
                                               to represent the Sheriff and
                                               a Justice of the Peace in a
                                               Civil Suit in Federal Court
                                               under the facts stated and
Dear Mrs. Harney:                              related questions

       Your recent request for opinion has been received and carefully con-
sidered by this Department. We quote from your request as follows:

         "Jim Line, who was sworn in as Sheriff of Potter County
         on January 1, 1961, on November 6, 1960, as a citizen,
         filed a complaint which was taken by Wayne Bagley,
         District Attorney, against the manager and employees of
         the State Theatre, charging them under Article 527, show-
         ing and exhibiting lewd and lascivious motion pictures;
         the complaint was filed in Justice of the Peace Court
         #S with the Justice of the Peace sitting as an examining
         court in accordance with Articles 35, 245, etc., Vernon's
         Texas Code of Criminal Procedure; the Defendants were
         arrested and brought before the Justice of the Peace Court;
         the examining trial was waived; they were committted by the
         Justice of the Peace and bond set by the Justfce of the
         Peace, returnable to the 4'7thDistrict Court of Potter
         County; at the time the Defendants were arrested by a
         Deputy Sheriff, the motion picture films were seized and
         placed in a safe in the Sheriff's Department where they
         remain in the possession of Sheriff Line in his official
         capacity; Wayne Bagley, District Attorney, presented the
         case to the Grand Jury; the Grand Jury did not No-Bill or
         present a True-Bill; they wrote a memorandum stating that
         no action was required by them because it involved a mis-
         demeanor violation, but if there was a criminal violation,
         then it should be handled by the County Court because of
         the interest expressed by the public in regard to better
         movies; no further action has been taken in regard to this
         matter in any of the State courts. On January 13, 1961, a
         suit was filed in Federal Court by several movie companies
         against Sheriff Jim Lfne and Justice of the Peace Cliff
         Roberts; they ask for the following relief:
Mrs. Naomi Harney, Page 2    (~~-1036)




             "(1) That the Defendants, their agents, etc. be en-
             joined during the pendency of the action and permanently
             from infringing any part of the copy-righted motion
             pictures.

             "(2) That the Defendants be required to forthwith
             deliver unto Plaintiffs, the motion picture illegally
             seized which were In their possession and for adjudi-
             cation as to the question of whether they were lewd,
             lascivious or depraved.'

             "The County Attorney represented the Defendants, Sheriff
             Line and Judge Cliff Roberts. The Court sustained De-
             fendants' Motion to Dismiss for lack of jurisdiction.
             The Plaintiffs are appealing from this order to the
             Fifth Circuit Court in New Orleans.

QUESTIONS:

             "(1) Is the County Attorney under an official legal
             duty to represent these Defendants in this appeal?

             '[2) If the answer to Question No. 1 is yes, is the
             Commissioners Court obligated and authorized to pay
             all the expenses in connection with this appeal in-
             cluding all expenses incurred by the attorney and
             Court Costs should the case be reversed on appeal?

          “(3)    If the County Attorney is under no legal duty to
             represent these Defendants, would the Commissioners
             Court be obligated and authorized to appoint an at-
             torney, paying his fees and all costs in connection
             with this appeal?

             "(4) The case having been presented to the Grand Jury
              by the District Attorney, was it the duty of the Grand
              Jury to either No-Bill or present a Misdemeanor Indict-
              ment or was proper action taken when they wrote a state-
              ment that if there was a violation then it should be sent
              to the County Court?

             “(5) If the action of the Grand Jury was not proper,
             .would the complaint still be pending before the Grand
             Jury until the term of Court to which the bonds were
             returnable ended?"

       In reference to your Question Number 1:

      The office of County Attorney is established by Article V, Section
Mrs. Naomi Harney, Page 3   (~~-1.036).



21 of the Texas Constitution which provides in part as follows:

          "The County Attorney shall represent the State in all
          cases in the District and inferior Courts in their re-
          spective counties; but if any county shall be included
          in a district in which there shall be a district at-
          torney, the respective duties of district attorneys and
          county attorneys shall in such counties be regulated by
          the Legislature."

       Article 26 of the Texas Code of Criminal Procedure deals with the
duties of the County Attorney in counties wherein there is a resident
District Attorney and in essence gives the County Attorney the duty to
represent the State in all cases in the County Court in such counties.
Although there are some special statutes which impose other duties upon
the County Attorneys we have been unable to find any statute or other law
which requires the County Attorney to represent the county or any official
thereof upon the appeal of a case* In fact in the case of Brady v. Brooks,
99 Tex. 379, 89 S.W. 1052 (1905) the Supreme Court states that the primary
purpose of the District and County Attorneys is: ". ~ . to prosecute the
pleas of the State in Criminal cases." (Pa 1056)

       In reference to your Question Number 3:

       The County has not been made a party to the suit simply because
of the fact that some County Officials are being sued. Davis v. Wildenthal,
214 S.W.2d 620 (Civ. App. 1951, error refused n.r.e.). Since the County is
not a party to the suit it is neither authorized nor obligated to furnish
an attorney for the officials who are being sued.

       In reference to your Question Number 4:

       Under Article 391, Texas Code of Criminal Procedure, a Grand Jury
may return an indictment if it, in its discretion, sees fit to do so. That
a Grand Jury may also make recommendations is a well established tradition
of our jurisprudence. It therefore follows that the action of the Grand
Jury in this case was entirely within their power and was proper.

       Since the action of the Grand Jury was proper, your last question,
by its terms, need not be answered.


                            SUMMARY

             It is not the duty of the County Attorney to
             represent either the Sheriff or a Justice of
             the Peace in Federal Appellate Court. Since
             the suit is a suit against the Sheriff and a
             Justice of the Peace individually, the County
Mrs. Naomi Harney, Page 4   (~~-1036)



            is not a party and the County is neither au-
            thorized nor obligated to furnish an attorney
            for those two officials. The action of the
            Grand Jury in refusing to return an indictment
            and writing a memorandum about the case was
            within the scope of its power and not improper.



                                        Yours very truly,

                                        WILL WILSON
                                        Attorney General of Texas




                                            Sam R. Wilson
                                            Assistant Attorney General
SRW:br

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