        OFFICE   OF THE   AITORNEY    GENERAL   OF   TEXAS
                               AUSTtN

4-G-
 --




                 Your opinion r
       been reeeioed and oom
       laring quotation repra
       letter:
                                            San Augustine
                                           fen to aeteEn1ne
                                              not conr.aLFl-



                                          8 filed a ccnteat
                                         a oopy ot aontxe-
                                       s Xcuillal, county



                           ation ie whether under rirticle
                           e DUTY of the County Attorney to
                           lidity of the elsation..,."




                 Article 66640a, Vernon's Annotated penai Code,
       in p?COVidbg iOr % pO8Sible COnt8St Of Such a lOCal OpttOn
       aleotion reads, in so far as applicable,as follows:
                  "....aadthe pmaeeili~gs in suah (local
Eon.   Joe   J,   Fisher,     Page    2




       option electiun) COnt8st shell be ccnduoted
       in the 8ene rranner,as now ~ovem the con-
       test or’ say general election....*(Parenthe-
       tical fnnortion ours)
              ikticle       3069,    Zievfsed   Civil   8xcGdm3,   1925,   gro-
vides:
            *ff t.kecontest be for the validity of
       an election held for any other purpose than
       the election of an officer or offioem in eny
       county.or part of a county or precinct of a
       0ounty;or in any incorporatedcity, town or
       village, tip resident or suoh county, FreCi%?t,
       city, tom or village, or any,number o?'such
       residents, may contest such electlon iu the dis-
       trint court of such county in the sme .mmner
       and under the sm.m rules, as far as applicable,
       as are prescribed in this chapter for contost-
       In3 the val:dity OP an eleotion for a ccuzty
       ofeice."
          The suCceedin Article 3070, Revised Civil Sta-
tutes, 1925, declares:
            *In any case provided for i;nthe preaed-
       lng artiole, the county attorney of the county,
       or if there is no ootmty attomey,.the district
       attorney of the dLstrict, or the rayor of the
       city, town or vLlla~e, or the officer nrhode-
       clared the ofricial result of'said election, or
       one of then, as the case rzaybe, shall be Dade
       the oonteetee,and shall be served with nctice
       and stotment, and shall file his reply thereto
       as.in the cam of a coiltestfor office;...."
          Artiole 3043, Revised Civil Statutes, 9925, pro-
vides that:
               Vhe  person . . . shall, within ten days
       alter~receivingsuch notice azd statemnt, cle-
       liver, or cause to be delivered, to said con-
       test&&,     his aSent or attornsg,   a reply there-
       to in writing."
Ron. Joe J. Fisher, Page 3


          Artiale 5, Section 21, of the Constitutionde-
01ares:
          "....'i'he
                   oounty attorneys shall repre-
     sent the SWte in a3l cases Fn the District
     and inferior courts inthelr respective coun-
     ties; but if any county shall be included in
     a distriot inwhichthore shall be a dietrfot
     attorney, the respective duties of distriot
     attorneys and countp attorneys shall in such
     oounties be regulated by the LBgislatu.re....w
           It till be noted that the latter olause of the
.~onstitutionalproviso set out above affixes an important
'Vi-estrietion
             or qualificationupon the generaa power an-
 nouneed in the first clause. San Augustine County is with-
 in a $udiaLal distriat having a district attorney; there-
 fore the terms of the Constitutionrelegates to the k&v-
 lature license and authority to define the power and duties
 of the county attorney.
          The ten ,"duties"as used in the Constitution
inherently implies the further idea of "power" or -author-
ity." Consequent$y,we must look to legislative aat in
order to asoertain the extent as well as the,definition
of the county attorney's duties. .Zis powers and duties
are uo-extensive. In other words, where there is no au-
                  be no duty; and where there is no duty
thority there .ctan
there can be no power or authority. See~liechemon Fublia
Offices and Officers, Sections 501 and 502.
           It is to be observed here, that we have been
 unable to find any statutory provision requiring or au-
thorizing a county attorney to defend the validity of.a
 local option election In event of contest proceeding.
~Eor do wa believe that the terns oi~titicle 5070, phztsed
 Civil Statutes, 1925, supra, im~se such a duty. -
 statutory provision merely provides that the ,naroed
                                                    contes-
 tee in aQ election oontcst "shall file his reply" (under-
 scoring ours) to the natiae and i;tutementof oontest.
           The case of Eoore et al vs. Commissioners'Court,
 ol=c?ituscounty, 192 SW 605, involving an election contest
 cn ano';hernatter, while not decisive of this ques,tion,is
 strohgly persuasive. The opinion is short and we quote it
Iion.Joe J. Fisher, Page 4


in ?ull, to-wit:
          "I-3, J. The proceeding is to oontest
     an election held in justiCe precinct Bo. 3
     o? Titus county for the purpose of preventing
     the ruming at large of hogs, sheep, and goats
     in said precinct. The court sustained a gener-
     al demurrer to the petition, and the appeal
     is to review the ~rulingof the court in that
     respect.
          "The petition alleged that the county
    'attorneyhad agreed that a notice of the con-
     test need not be given to him by the ccntes-
     tants and had agreed to waive such notice and
     service thoteof upon him. The petition does
     not undertake to allege that a written state-
     ment o? the grounds of the contest had been
     served upon the county attorney of the county,
     The ntatutezrequiresthe,:~ivingok?notice of
     the contest (Artiole 3151, Vernon*s Saylea'
     Statutes), and zequiiws that the county attor-
     ney in this character o.?:proceeding*shall be
    &+seS?k~~
            with notice ands-tatement~ (Article
     307S,"Vornon*sSaylea' Statutes)
     &xl servink of.the notice &u&d     w
     statute is not for the benefit o? the county
     attorney and~~necluliarly
                             personal to him, who
     is merely a formal party to such proceeding
     Fge giving and serving o? the notice preocgbed
     bg the statute is the prerequisite to the juris-
     diction of the drstriot court. Cauthron v.
     h.lrphy,61 Tex. CIV. Appl 462,~130 5, vi. 671. A
     speci?ic mode of contesting an election having
     been prescribed by the statute, that particular
     ncx48e
          alone'can be presortedto; it is exalusive
     of every other nodfi. And this particular pro-
     ceeding 15 not a contest as between two persons,
     so as to suthorize'andwarrant the oounty attor-
     ney to waive a statutory proee&ure essentially
     involving jurisdictionof the district court.
          "It is believed the court did not err in
     sustaining the demurrer, end the judgment is
     a??irced.'9
.




    Hon. Joe J. Fisher, page 3


              You are therefore raspecti?xllyadvised that
    it is the opinion OF this department that it ia not the
    duty or the county attorney td deiend the validity or a
    oostoated local option eleotion. Ycu are iurther re-
    spsctrully advised that it is the opinfon of this de-
    partment that when the coumty attorney is Eade contea-
    tee and served with notice under Xrtialas 3043 aid 3070,
    I?evisadCivil Statutes, 1925, it then beooraesthe duty
    of tha county attorney to prepare and file the written
    contsstee'e reply as required by said statutes and that,
    when this fn done the county attorney has fully disc
    charged his statutory duty. +?nyadditional act or acts
    0r the county attorney b9g0nathat 0r riling his reply
    would seem to rest'gurelp within the discretion or the
    county attorney. Them would appear so other criterion
    which would be resorted to.
              The opinion or th% department,dated April
    22, 1938, mitten-by Fion.Jce.@harp, assistant Attorney
    General, Vol. 381, page 120, holdlq to the contrary,
    aitesthe case of Xooker vs. ‘r'oster,1 SVf(2nd)PC, which
    cam we think is nslthcr decisive nor persuasive,and
    said opinion is therefare overruled.
