                  THE    ASTBRNEY              GENERAL
                              OF-XAS
                          AUSTIN.TEXAR        78711
CRAWPOlzD   c. MARTIN


                                 July 26, 1972

      Honorable Joe Resweber                          Opinion No. M- 1180
      County Attorney
      Harris County Courthouse                        Re: Authority of County
      Houston, Texas 77002                                Attorney of Harris
                                                          County, Texas, to in-
      ATTN: Jerry B. Schank                               vestigate election
            Assistant County Attorney                     frauds.

      Dear Sir:

           Your request for an opinion on the above subject matter asks
      the following question:

                 "Is the County Attorney of Harris County au-
            thorized to investigate allegations of election
            frauds presented to him by written affidavits of
            two or more reputable citizens under subsection
            1 of Article 9.02 of the Election Code?"

           Article 9.02 of the Texas Election Code requires the dis-
      trict and county attorneys, in the case of elections involving
      less than two counties, to investigate election frauds presented
      to them by written affidavits of two or more reputable citizens.

           It is held in Shenperd v. Alaniz, 303 S.W.2d 846 (Tex.Civ.
      App. 1957, no writ), that it is the principal duty of the district
      and county attorneys to investigate and prosecute violations of
      all criminal laws, including election laws, and these duties
      cannot be taken away from them by the Legislature.  See also
      Garcia v. Laughlin, 155 Tex. 261, 285 S.W.Zd 191 (1955).




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Honorable Joe Resweber, page 2 (M11180)



     It is the primary duty of the District Attorney of Harris
County to represent the State in criminal cases pending in the
district and inferior courts of Harris County, Texas. Article
326k-26, Vernon's Civil Statutes.

     It is the primary duty of the County Attorney of Harris
County to represent the State, Harris County, and the officials
of such county in all civil matters pending before the courts of
Harris County, and any other courts where the State of Texas,
Harris County, and the officials of such county have matters
pending. Article 331h, Vernon's Civil Statutes.

      Since the investigation of election frauds and the prosecu-
tion for the same are criminal matters, the primary duty to
make such investigations falls on the District  Attorney of Harris
County rather than the County Attorney of Harris County. This
does not, however, divest the County Attorney of Harris County
of his constitutional power under the provisions of Article V,
Section 21 of the Constitution of Texas. State v. Moore. 57 Tex.
307 (1882); Harris County v. Stewart, 91 Tex. 146, 41 S.W. 650
 (1897): State ex rel. Hancock v. Ennis, 195 S.W.2d 151 (Tex.Civ.
App. 1946, error ref. n-r-e.); State  ex rel. Downs v. Harney,
164 S.W.2d 55 (Tex.Civ.App. 1942, error ref.): Shepperd v. Alaniz,
supra: Garcia v. Lauqhlin, supra.

     In view of the foregoing, you are advised that under the
provisions of Article V, Section 21 of the Constitution of Texas
and the provisions of Article 9.02 of the Texas Election Code,
the County Attorney of Harris County is authorized to investigate
election frauds. However, this investigation is the primary duty
of the District Attorney of Harris County rather than the County
Attorney of Harris County. Articles 326k-26 and 331h, Vernon's
Civil Statutes.




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I


    .




        Honorable Joe Resweber, page 3 (M-1180)



                                SUMMARY

                      The County Attorney of Harris County is
                  authorized to investigate election frauds
                  under the provisions of Article V, Section 21,
                  Texas Constitution, and Article 9.02, Texas
                  Election Code. However, this investigation
                  is the primary duty of the District Attorney
                  of Harris County rather than the County At-
                  torney of Harris County. Articles 326k-26
                  and 331h. Vernon's Civil Statutes.

                                                   truly yours,




        Prepared by John Reeves
        Assistant Attorney General

        APPROVED:
        OPINION COMMITTEE

        Kerns Taylor, Chairman
        W. E, Allen, Co-Chairman
        Melvin Corley
        Bob Lattimore
        Jerry Roberts
        Max Hamilton

        SAMUEL D, MCDANIEL
        Staff Legal Assistant

        ALFRED WALKER
        Executive Assistant

        NOLA WHITE
        First Assistant


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