     GERALD     C. MANN                   &JSTXN     11. %-F-
a-




       Honorable  Coke R. Stevenson
       Governor  of the State of Texas
       Austin, Texa,s
                                                      Opinion No. O-5001
       Dear    Governor     Stevenson:                Re:   Authority of Governor    to fill
                                                            by appointment vacancy in
                                                            office of Criminal  District
                                                            Attorney created by Article
                                                            326q, Vernon’s   Revised   Civil
                                                             Statutes.


                  You have requested    the opinion of this department   on the question
       whether it is the duty of the Governor, or of the Commissioners’         Court.of
       Grayson County, to make. an appointment to fill a vacancy in the office of
       Criminal   District Attorney   of Grayson   $Zounty, which office is created by
       the provisions    of Article 326q. Vernon’s   Revised Civil Statutes of Texas.

                     Constitution,   Article   4, Section   12, provides   that:

                   “All vacancies      in State or district offices, except members
              of the Legislature,      shall be filled, unless otherwise  provided by
              law,   by appointment      by the Governor.     . . .”

                  Article   326q, Vernon’s  Revised Civil Statutes, applies only to
       those counties in this State having a population of not less than 33,500 and
       not more than 75,000 inhabitants,     and which do not contain a city of more
       than 50,000 inhabitants,    and in which counties there are one or more judi-
       cial districts.   and in which the County Attorney performs     the duties of
       County Attorney and District Attorney,      and in ‘which there is not now a
       District Attorney.     Grayson County meets these requirements.

                 In the counties to which it’appiies,   Article  326q undertakes    to
       create the office of Criminal    District Attorney.    The Act provides   that
       such Criminal    District Attorney shall have and exercise     all the powers,
       duties and prtvileges    within such counties as are by law conferred      upon
       District and County Attorneys.      It further provides that the person who is
Honorable    Coke R. Stevenson,       Page   2 (o-5001)




at the time of the passage of the law the County Attorney of such county,
shall be and become the Criminal    District Attorney of the county until
the next general election and until his successor   shall be elected and
qualified.

            Section   5a of the Act provides:

           “It is not the intention of this Act to create any office of
     District Attorney nor any other constitutional      office and the
     office of Criminal    District Attorney is hereby declared      to be
     a separate and distinct office from the constitutional      office
     of District Attorney and no Criminal      District Attorney shall
     draw or be entitled to any salary whatsoever       from the State
     of Texas.”

           The Act undertakes     to create a “district office”.   If it is valid,
therefore,   Article   4, Section 12 of the Constitution would authorize the
Governor    to fill the vacancy therein, since the Legislature     has made no
provision   for filling the vacancy otherwise     than by the appointment of
the Governor.

            Section   21, Article   5, of our State Constitution   provides:

           “A county attorneys, 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 case of vacancy the Commissioners’      Court of the county
     shall have power to appoint a county attorney until the next
     general election.     The county attorneys shall represent      the
     State in all cases in the District and inferior      courts in their
     respective   counties; but if any county shall be included in a
     district in which there shall be a district attorney, the res-
     pective duties of district attorneys and county attorneys
     shall in such counties be regulated       by the Legislature.    The
     Legislature   may provide for the election of district attorneys
     in such districts,   as may be deemed necessary,         and make pro-
     vision for the compensation       of district attorneys,   and county
     attorneys;  provided,    district attorneys shall receive an annual
     salary of five hundred dollars,      to be paid by the State, and such
     fees, commissions      and perquisites    as may be provided by law.
   -   ..    .




Honorable          Coke R. Stevenson,   Page   3




       County Attorneys        shall receive   as compensation  only such
       fees, commissions         and perquisites   as may be prescribed
       by law.”

           This Section of the Constitution      provides   for the offices of County
Attorney and District Attorney.        It expressly   authorizes    the Legislature   to
provide for the election of District Attorneys         in such. districts  as may be
deemed necessary.        Each of the offices provided for by that’Scction of the
Constitution is a *constitutional      office”. When the same Section speaks of
a “resident Criminal       District Attorney”,   it is clear that it refers to a
“District Atto,rney” with special functions or powers and duties.             Whether
the ‘Criminal’      District Attorney is an attorney whose duty it is to serve
a “Criminal    District Court”, or whether he is simply one who serves a
“District  Court”    of a district composed     of a single county, it is here un-
necessary   to decide.     In either case, the office created is a’Clonstitutiona1
office” -- an office expressly      authorized   by the Constitution to be created
by the Legislature     *in such districts    as may be deemed necessary”.

           Since in Section 5a of the Act under consideration,     the Legisla-
ture has expressly    disavowed   the intention to creak   “any office of District
Attorney or any other constitutional     office”, the Act of necessity  can not be
construed to be an exercise     of the legislative power to create a “constitu-
tional office”.

           The A~ct,.$hen. dots rot cr6ak     the cm& qlbw$+.:       office’of  Criminal
District Attorney.    It is the.refore a nullity, unless .tt,id’,rithin the legislative
power to create a purely statutory.      as distinguished     from a constitutional
office, to supersede    the office of “County Attorney”.        That the Legislature
does not have the power to creak       such statutory office is made abundantly
clear in the decis~ions of the courts of this State.      Article   5, Section 21, of
the Constitution,  creates the office of County Attorney,         and vests in the
County Attorney the authority to represent        the State in all cases in the
District and inferior    courts in his county.    It is only when the Legislature
exercises   the authority conferred    by that section of the Constitution to
create the office of District Attorney or Criminal         District Attorney -- each
of them constitutional    offices -- that the office of County Attorney may be
abolished,  or the powers and duties conferred         by the Constitution     upon the
County Attorneys    abridged.

                  * -- Where certain duties are imposed or specific      powers
       are       conferred  upon a designated officer, the Legislature     cannot
j   .




        Honorable     Coke R. Stevenson,   Page   4




             withdraw them from him, nor confer them upon others,
             nor abridge them or interfere    with the officer’s   right
             to exercise   them, -- unless the Constitution expressly
             so provides.”    34 Tex. Jut. p. 445, and authorities    there
             cited.

                    See:    Moore  v. Skk,   57 Tex. 307;
                    Maud,   Tax Collector,    v. Terre&   Comptroller,
                           109 Tax. 97. 200 S.W. 375;
                    Howth v. Greer,     90 S.W. 2ll; writ denied;
                    Upton v. City of San Angelo, et al, 94 S.W. 436;
                    Harris   County v. Stewart, 91 Tex. 133, 41 S.W. 650;
                    Camp et al v. Gulf Production       Company et al,
                           61 S.W.2d 773;
                    Moore v. Bell, (Supreme Court)        66 S.W. 45;
                    Staples v. State ex rel King, 112 Tex. 61, 70.
                           245 S.W. 639;
                    Allen v. Fisher,   118 Tex. 38. 42, 9 S.W.2d 731;
                    Skk    ex rel Downs, et al, V. Harney,    Sheriff,
                           164 S.W.2d 55;
                    Adamson v. Connaly, 112 S.W.2d 287. 290.

                    Asabove stated, it is here unnecessary       to determine whether the
        Act would   have been effective to creak      the constitutional    office of “Criminal
        District Attorney”.    To  determine    that question  would   require    a decision
        upon the question whether the term “resident         Criminal    District Attorney”
        means an attorney whose duty it is to serve a “Criminal            District Court”,
        or whether it means an attorney to serve a “District          Court” of a district
        composed of a shingle county.     This inquiry is made unnecessary          by the
        express legislative   declaration   that it was not the intention of the Legislature
        in passing the Act to exercise    the authority conferred      by Article    5, Section
        21, to creak   the constitutional  office of Criminal    District Attorney.

                  Since the Act is a nullity. it follows that there is no office of
        “Criminal   District Attorney”     to be filled in Grayson County.      There still
        exists, perforce    of the provisions   of Article   5, Section 21, the office of
        County Attorney in such county, the vacancy          in which is to be filled by
        appointment of the Commissioners’         Court of said county, under the authority
        conferred   upon that court by Article      5, Section 21, of the Constitution.

        APPROVED     FEB 16, 1943                                 Very   truly yours
        /s/ Gerald C. Mann
                                                       ATTORNEY   GENERAL     OF TEXAS
        ATTORNEY     GENERAL     OF TEXAS              By /s/ R. W. Fairchild
        R WF-MR
                                                              R. W. Fairchild
           This Opinion Considered   and
                                                                    Assistant
           Approved   in Limited Conference.
