            OFFICEOFTHEATTORNEYGENERALOFTEXAS
                             AUSTIN




fionornbleC. N. Covnesa
state knd:ciitor
Austin, Texas

Dear Sir:




            "We 8x33no3 onakin
    of aacount;an4 r




      G      Assistant District Attorney
                 - fjji+i
                        District           3,000.   3,000.
      7      Asxlstsnt District AttoXney
                 - 53ra Dist??lct          2,700.   2,700.
Bon.‘~c.
       Ii.COWOS#, PaGo 2




     a
 ,   9

     10


     11
     12
HCXI, C.       H.   Camm~,        Page   3


           paPd, an5 in,each im3itidu~l instensevhat years
           viaid be involved in a&lLtion to t!xosecsvared by ';.
           the Appzwiation Act of tiie47th La~iolatux~?~
           IJawill refer to th-3vkiotls mttors ccntalned in
your request as Item 3, Itea 4,,cta., using the ymber fos oaeh
Itea that ym have used.
          ArMole Q,                SeotZcrn   21, of t'naComtltution of Texas,
is as PoilGws:
                   “A counf;g attoraey, Pm countks in which
           there is not a Fe&dent ci?imicaldistrict attornag,
           sha1.ibe elooted by the qualified voters or"each
           county, xrhoshabl be caw.~issFonecl   by tineGovernor,
           a&hold his off%00 for the tam of two yeam. In'
           ces~ of vacancrgthe Comfssiooers* Couzztof the
           acxmty s'halih3ve pwcr to appol.n$a county attor-
           ney untfL the next.geneP3~ekCtfOnn Th3 coiultg
           attorneys sha9.3regpesent the State in a13.oases
           in the District and inferic~ courts in their me-
           spective counties; but if any oomty 3M!S be in-
           cludod in e distrLc,cl   in Shkh 'kei+cshall bo a di3-
           td.ck attorney, the rcspectfve duties of ditit~iot
           ottorneys and county attorneys &hall in such cour$ies
           be regulntecl by th8 Le@;isla%u.x-e.  Y.3 Le&3lature
           nay protide for the.ek$tioa of dLstrict attorneys
           $.uauoh diStriCtSi     GS Wig be d~eecled
                                                   3k?COSS3=,     aEd
           112al:o
                p32ovision    for the coqensntLo9 of dLstx4Lotat-.
           torncys, nriloounty attorneys; provLdlod,      dbtric~
           attomo~s shall.rooeive an annual salary of five .' .,
           hun&*ed dollars, to be psld by the State, and suoh
           fens, co1mis3ion3nnb perquisites a3 nay be pro-
           vided by law. County attmmgs &?111 recefvo a3
           aos@easotiononly such fees, ~m?zLis3LOns      and per-
           qulASm 8s may be prescr&bedby 1a'J."
          Arf;iclo 322, YertionssAmotated CLvl.1Statutes, Ls
In psrt as follms:
                 'IThefollc~4.~~Jud.FoialDFstricts,in.thfs
           s&z&e shall each res-osetivelyelect a DistH.ct At-
           topmy, viz2 ... u&h,    ... twcnVy-r;eoo!d.,
                                                      .a. thiX-
           tietln,... th@tiy.-fix&h,,..forQ-sorcn&h, ...fo$ty-
           ninth,.... flf-~y-‘~~hLxd,
                                   .., sevarkg-socori1,. . .
                                                              :



       #
                              .
  :.


                        .‘,
                             ‘79.5



Hon. C. il.Cam3ss., Page 4
                          .
                   wgeu. 1.      !n?Al; m3txict        Ate@nays  ..I:: 311
          S~lC~l3l    Dlsex?iuts     cim~osad     of    only ona county,




      ,




2:’

;     ‘
non. C. Ij.Cavmss, Pcge 6.




                                                                .   .
         Item 7 Is authorlzad & Article 326k-7, whichis in
    ai Po33o~s:
         "Sm. 2. That tho DPstslct AttOmey ofthe
    $&%I Sudic~al,Dfstrlct or TO-xastg authorlee? to -~    -'
    appotnt a9 Assfs"tantDistrict Attorney in additicxa
    to that authorizedby Stictio~~2 of'Article 326% GSI
    oaxriod fomazrj in Vamon~s Civil.Statute of the
    State of Texas',urrdorAct5 of 1331,Forty-s;c~oud
    Le&mitLlxe, pa&3 744, C@plm 291.
         "Sec.2. The Assistant District.httorneg
    providedfor in soctio?I1 shall bo a duly 3icenWxI
    attorneyat 3av and a bona fide z%M.dent~of’Travis
    county an!3shall poscess a33 IAm aua3ff~c.cstlons
                                                    that
    era nw ratpS.rodby low of the Di&rLot httiorneyof
    the 533?3
            sud,iclal
                    lllatrlct
                            of t119%ta;aGa
                                        of Tox3aj
    shall take the 03th 05 ofX=Qo.; shi~ll.
                                          bo subject to
            by tha wP13 0.fthe Distld~t AttOX'ney; aha
    r~iijov~l

             ..   ’
...


_ :~ i ,   _   /.   ~.
  Hon. C. II.Cavness, Page 8


           "In any judicial district ln this State
      consistingof mope than one county ln which there
      is situated a CFty or not less than thirty-four
      thousand (3&,000)Inhabitantsand not more than';
      forty-four thousand (]:]I-,000)
                                   inhabitants,accord-
      ins to tho last preceding Federal Census, the
      district attorney 3baLl appoint one assistant
      district attorney, provided the district attorney
      &all furni3h data to the dlstrlct judge of his
      district that he 13 in neod of an as,sLstant and
      is himself unable to attend.to all the duties rc-
      quired of him b3 law, and tbzt it is necessary to
      the best interest of the State that an assistant
      district attorney be appointed. Ss5.dassistant
      district attorney so appointed shall be a quali-
      fied resident of the district in which said ap-
      pointment is made and shall give bond and take
      the official oath. The said assistant district
      attornsy shall be a.qualiSiedlicensed attorney
      and shall~haveauthority to perform all the acts
      and duties of the dlstriat attorney under the laws
      of thl3 State; said appointmentshall be for such
      time as the district attorney shall deem best in    ,,
      the enforcementof the law, not to be less than.
      one month. Said assistant district attorney shall _i:,'
      be paid by the Comptroller for the time of actual
      service rendered at the rate of !iVenty~five PIundred
      'Dollars($2500)per annum: Said sum shall be paid
      upon certificatesof the district attorney of said         ,~;.
      district that said assistant district attorney has
      parformed his duties and is entit1e.dto~pag. The       '  ,I~
'_    district attorney of any such district at any time       '.'
      he deems said assistant unnecessary,or finds that         .-
      he .isnot attending to hi'sduties as requfrcd by (~
      law, by remove said person fron office by mertly
      writing to said district judge to that effect.
              The 49th Judicial District of Texas is compoacd of
   the Counties of D&nit, Zapata,:JimHo&g and Webb. In said
  district there was located the City of Iaredo, whose population,
  as shovn by the Ped8ro.lCensus of lg!hO, was 39,274.    aereforo,
  said Judicial District came within,theprovisions of Article 324
  of se,ldstatutes.
         -.!.
            ":WQ have been unable"to'flnd.r*ny:,'statute~
                                                       spec~lfi&iy 'au-
' .thoplz$ngtho AssistantDi3trlc,t  .Attorncg’or Spoelal Investkgator
 'for the 30th distrlct.referredto in item 10, or pr83cribing the
  q~lifications,~dutiosand compensationof the person appolnted to
                                                                  880

Honorable C. H. Cavness, Page 9


'suchpckitlon;but, for the reasons hereinafter set forth, it is
 our opinion that the appropriationof a salary for such person is
 sufficientauthcrlty for bio appo3ntmontand belngps,ld the salary
 so provided,
         That p&rt of Item 30 pertatiing to the 72nd District is
authorizedby Art. 326-1, Sections 1 and 3 of which read as follows:
          "Sec. 1. The District. Attornog of the 72nd
     Judicial DLstr:ct of Texas, is horeby~authorized
     to appoint one Assistant Dlstrlct Attorney.
          ". . . .

          %c. 3.    The Assistant Distrkt Attorney
     provided for in Section 1 of tnbs Act shall rc-
     cetve an annual salary of $2,500.00,payable
     monthly, out of any money,not otherwise appro-
     priated, upon the.swornascount of such Assist-
     ant District Attorney, approved by the District
     Attorney."~
         ‘.We have been unable to find any statute speclficallyau-
thorizingthe Assistant District Attorney for the 47th dlstr5kt
referred to in Item 11, 'orprescribing the qualifications,duties
and compensationof the person appointed to au& position, but,
for the reasons hereinafter set forth, it is our opinion that~the
appropriat.i.onof a salary for such person fs sufficient authority
for his appointmentand.belng paid the salary so provided.
          'Item12 is authorized by Article Xi&:-3 of said.stat-
utes, which is,in part,as follox3:
           "sec. 1. Dlafrict attorneys in each.judl-~ -~
     cl.aldistrict ti this 3tats containingfive or
     more counties havin?;a cornbluedpopulation, ac-   '.
     cording to the Fourteenth Census of the Uaited
    :Sfates of the year 1920, of not less than 98,740
     nor in excess of 98,750, shall receive from the
     State as py for their servkces the sum of Five
              . .-
     Hundred (~500.00) Dollars per annum, as nrovided
     by the constitution,and & addition thereto, and
     ln lieu of the fees, commissions,and perquisites
     provided~bylaw, shall recoivo from the S.tatethe
     sum of Ten ($10.00)Dollars for each of the first
     350 days of every calendar year as compensation
     for t3ttcasllng
                   examlati~ trials, Habeas Corpus
     hearings, the sessions of the District Court of
     the district they regresent;.andfor performing
     kuch other duties as~lmposo~ by lav. -Tno corn--
     pensationprovided for in thls:Aci shall be gaid
     monthly by:the State upon,warrants'dra-311
                                              by ~the
Bon. C. H:Cavmss,   Pago 10
 Hon. C. H. Cavness, Page 11


 raking the total population of oaid’judlaialdistrict 98,743,
 and bringilx said district within the provisionsof tho last
 above-quotedst%tuts.
          Article III, Section 44, of the Constitution,irovides
 as follous:
             “The Legislature shall provide by law for
        the coskpensationof all officers, servants,agonts
        and public COntP3ct3P23,not provided for Ln thin
        Const-ltutioqbut shall not grant extra coqensa-
        tion to any officer, agent, servant, or public
        contractors,after such public service shall have
        been pcrfomed or contract entered into, for the
        parfomance of the sake; nor grant, by appropria-
        tion or otherwise,any ano;mt of ~omy out OP the      I
        Treasury of the State, to any individual,on a
        claim, real or pretended, when the sane shall not
        have been provided for by pm-oxisttig law; nor
        employ any one l.~the nam? of tie State, anles3
        authorizedby pre-existing law.
           It is our opinion that each and all of the appropriations
 reserved to J.nyour request for whioh we have pointed out statutes
 specfffcullycreatlsgand authorizing the offtoial positions   for
 which atid,approriations mere made were ln coapliance~vaitb sold
 Art, III, Sec. 4$ , of the Constitutionof Texas, therefore, that they
 were leSa1. Further,-Art.‘V,Sec. 21, of the Constitution,,and.Art.
 322, of Vernon*s Annotated Clvll Statutes,hereinaboveset out, au-
 thorize each and all of the-offices of district attorney Involved
 herein, emI t&e various statutes referred to legally create such of-
 ficial positions. Practicallyall of the statutes hereinabove set
 out which authorize the appointment of assistant district attorneys
 contain the provision @at said asslstant district attorneys
 shall have authority to perform all the acts and~dutios of the
 district attorney under the laws of this State. Those of said
 statuteswhere such specific authority Is not given to aoskstant
 district attorneys authorize said assistant district attorneys
 to pcrfom tho sorvfces thendistrict attorney 1s authorized to,
 perfom. Therefore,it is our opinirm that each and all of said
 assistant district attorneys were l~gallyauthorized and that said
~~appropi4atlonswere legal.
                           the Supre.k ‘Court in ths case of
             As to;Item 3,.‘.
 -2&c,P&o   Rfchapds,
                 .   et al, 155 9. 1~..(2cI),~597, hold that the
,..~
       *a    ..                      ,
                                                    :_   ”
            . .   ..                     . .   ..
              :        ..
          -A
                           I--        i               --d---1_;--          .,




Ron.   C. Pi,Cavnflss,Peg1212




       w?ovisfonsauthariz&        the oretltioaof o&~~tLllnal
                          mdop   oort8iQ   Ooditi-.        sn       1583
                     g adopted.an Ret which contained a
       defini~lon of oritinal d:stx?ictottoma.   That Act
       provided aa follcws;




                      I
,



    %n. C. B. Ctwness, Pega 33
     Hon. c. H.~CaVness,Page 14


          in the c&e 0P Commlssloners~Court of LInestone
                             236 s. I?.970, Texas COlZlliS-
          CGIlntyV. CiaI?i%tt,
          slon of Appeals, the court da:
              "'Section 56, Art. 3, vas Clpart Gf the
            o~lglnal Constitutionof 18*?6, There 1s
            nothlw in t'nelan,ggaua~;i?of that section
            suggastlve of a litnitation   cf the effect
            of the provfoion against,CrGntlon OS of-
            ficos by local or special law tG any cla3s
            0~ classes or"offlccs,nor Is there a sug-
            gastlon 'ofsuch lfmltati'on   in any other
            pGrtion of,tbe Constitution. The litlita-
            tion rofel~sto_glacesonly, an?lnot to
            claones of-Tij;-ficors. 2233places In uiilch
            the.croationof offices by sGccia1 or local
            Taw is prohibitedare col-nties,cities,
            towns,~end oloctlm    .md school districts.




               %nder Ax&le 5, Section 29, of ourState
         Constttution,supra, the Legislature Is given the ~'
         power to create the office,of distz4ct attorxneyln
          such districtsas it may deem neccosary and to de-
J         fine the powers and duties of such ol'flcc?s.This
          section of the Csnstltuticnwould also authorize
          the Legislatureto create tho office OS district at-
          torney ln a specific judicial district by its name
          or.any other fozn of do&nation and by the 3ame
          token it would authopiee the Le@.sl.aturcto allou
         ~the district attorney of a particularnamed dl~t:~lc~t
          to employ assistanta.
                                                 .
               "It.is our opinion that bur State Cdnstltutlon
         does not prohibit the tsgislaturofrom enactlng a
          local or opocial law creating the ofSice of assist-
         ant district attorney. Tho Constitutiona009 pro-
         ~hlbittho creation of county, city, toxin,election
         district andnschGGl district offices by local or ~.
          opeclal lav;
;
              krticle.25,.
                         Code of .CrlminalProcedure of the State of’
    '..,~Texas,'.~preacri~es't~;e!dutles
                                ofCistrl$t Attorneys as follows:
              %auh distr~~t~attornagah&: reProcent'~the   State ln all
       ,'..
         crlmlrzl~~cascaln'the d.lotN.ctcGurt3 of his dlstrlct,
       0 except iu~cnses vhero hc has .becn,before his election,
                   '. "       I,               <
Hon. C. Ii.Cavness, Page 15


         .employedadversely. Ifhenany crinhal proceeding
          Is had before an exanfnlng court In his district or
         before a judge upon bsbeas corpus, and he is not%- ;
,        fied of the sane, and is at the tine within the      ;.
         county where such pmccsdlng is had, he ,shallrep-
         resent the Stats therein,unless prevented by other
          officialduties."
         Acts of,the 47th Legislature, 1941, Ch. 148, p. 207, con-
tainod the JudiciaryAppropriation,a part of which was as follows:.
              "Be it enacted by the Lcgis1otur.e
                                               of the State
               of Texas
               "Section 1. Thzt the several sum of nokey
         .herelnspecifledor so much thereof as may be coc-
          easary, are hereby approprLatedout of any moneys
         'in the State Treasuq, not otherwiseappropriated,
          for the purposes herein Indicated as follows:'
               ". . .

              ‘%or the Years Endlng
                                              August 31,   Aw-$    31,
              (I                         < '. ~ 1942
              . . .~ .
              :Xi, Cmpensation of on0 As-
                   ststant'DistrictAttor-   >
                   neg or one SpecLal In-
                   ventigator for each of
                   the follonlngJudicial
                   Districts:Thirtieth and
                   Seventy-necond,at$1;800.
                   per .year.........,....;....3,600.00
              "11. Salary of Assists.& District
                     Attorney in Forty-seventh
                     Mstric,t............~.....2,510.00     2,510.OO
    ..        " . . .."

          In the case of Terre11 vs. Sparks, 135 S. W. 519, the
Supreuc Court had mder considerationthe pouer of the Attorney
Gonsml to employ an attorney to assist him in performing certain
duties, said attorney not b&.ng an AssistantAttorney General and
the only authority for his enployment being fomd In a bill ap-
propriatingsuds for said purpose. Sec. 1 of said appropriation
bill reads as follous:
non. C. II,Cavnesa, Page 16


         ‘For the purpose of enforcingany and all
    laws of the.state of Texas, and for the purpose
    of paying any and all necessary cxpenscs in, ;:.
    bringing suits or paying cxponses in prosecuting
    same, there is hereby appropriatedout of any
    money In the stc?tc treasury,not othoruiseap-
    propriated,the sirzi of $25,ooo.oa or 50 much
    thereofas map be necessary, to bo cxpendcd
    under the dlrcction of the Attorney Goncral by
    and with the approval of the ,Govcrnor,ana to
    be paid upon warrants drawn by the coqtrollar
    of public accounts on vouchers approved by the
    Attorney Gcnoral.I’
          In holding that the Attornog General uas authorized by
.saidappropriationbill to employ an attorney to asslst’in the
performanceof said duties, the court la.aiddovn the following
principles,oflaw vhhloh.are applkable here:
         “The next important question that arises in
    the case is: .3&dGou. Campbell and Atty. Gen.
    Lightfootauthority under the statute to employ
    Terre11 as special counsel to assist the Attorney
    General 5.nthe grosccutl@n  of the cases named and
    other cases which might arise? The pouer to make
    the contract must be derived from the statuto lt-
    self; thereforewe must construs its terms to as-
    certain whether ,or not that authority is given.
    For the rule of constructionby \zhLchwe aro to
    be governed, we copy from Sutherlandon Statutory
    Construction,11341, as follous: whmonovcra
    paver is given by statute, everythingnecessary
    .tomake it effectual or requisite to attdn   the ”
    end Is implied. It in a well-establishedprln-
    ciple that statutes containinggrants of power
    are to be constrdod so as to .lncludethe author-
    ity to do all thirgs necessary to accotipllshthe
    object.of the grant. The grant of an express
    pouer carries with it by neceosnry implicationev-
    ery other power necessary and proper to the cxe-
    cution of the potrerexpressly granted. Where the
    law commands anything to be done, it authorizes
    the performance of whatever may be necessary for
    executing.its commands.1
         ‘By.the texms of the statute of the Thirty-
    First Eeglolrturobefore copied, tho duty is in-
    poocd upon the Attorney Ganeral and the pouicr10
Bon/C. H. Cavncss, page 17     ,


     conferredupon him to prosecute suits against those
     who are unlawfully claiml,nGthe public lands of the
     state, for it Is evident from the torms of the;act
     that it was in the mind of the LeGlslaturewhenit en-
    acted this law that condltloiis required a vl~orous
    prosecutionof tinestate's claims against those who
    were lnfrlr@n~ upon the rights in the public lands
     of the state. In view of this duty, tha lanDago,
     'and for the purpose of paying any and all necessary
    ~expensesin brin$ng suits OP payln,gexpenses in
    pro3ecutlnGsame,( empowers the Attorney Gsncral,
    with the concurrenceof the Governor, to expend the
     sum appropriatedor so imuchthereof as may be neces-
  i'sary to accomplish the purpose specified in the act,
    and the cost of whatever might be necessary l.nthe
    discharge of the duties tlmo Imposed upon him Is ln-
     eluded in the term 'expense.' The second section of
     the act shows that in the mind of the Legislature
     there was an immediatenecessity for theAttorney
    General to make applicationof this fund to the .pro-
     tectlon of the.publiclands of the state. Suits were
    authoriced~to be brought by ~thelan@age, 'to pay
     the expense of.brin&ng suits and also ln prosecut-;
  j IT@ the seine.''Cut of this requirement there arose
     the necessity and the power of said officers to do,
    the thl.n~sthat were required to be dane in order to
     instituteand to prosecute those suits, and It re-
    quires no argument to show that the services of at-
     torneys wer$ necassary to the performance of,this
    duty. . . ;
          The law imposes certain duties upon a District Attorney.
In the performanceof said duties, he may, or he may not, need tho
services of someone'clse. When the Legislature passed the appro-
priation blll here under consideration,it 1s evident that It was
in the mfnd of the Legislaturethat the conditions were such that
the District Attorneys in the districts named were in need of as-
sistance in the performance of the duties placed upon them by law.
Therefore,even though it was not set forth in said appropriation
bill what the qualificationsof said assistants should be, or
what duties they Vare to perform, said District Attorneys were
authorizedby said approprlatlonsto expend the suus appropriated,
or so much thereofas might be necessary for such purpose, in per-
formlng the duties of thciroffices by employing the assistants
therein provided for.
Hon. C. Pi.Cavness, Page 18


           Thare is no general'statutocreating the office of Assist-
ant District Attorney that is applicable to all District Attorneys.
There ara numerous statutes creating the ofSice of Assistant Dis-
trict Attorney and Assist-antCriminal District Attorney that are
applicableto districtsnpecificallynamed or identlfied,byother
descriptionssuch as populationbrackets, or number of counties
embraced theredn,etc. It Is our opinion that, where the only
authority conferredupon the DistrictAttorney of a designated
district to appoint an Assistant District Attorney is Sound in an
appropriationbill vhich makes an appropriationto pay the salory
of an Assistant  DistrictAttorney, the assistant thus authorieed
to be appointed is not in fact an officer with all the powers and
dutios OS his prlncipl,   bec~usc no such office hs3 bepn, or can
be thus, created by the Legislature. The mere appropriationby
the Legislatureof money for the payment of compensationto the
incumbentof a specifiedposj.tiondoes not have the affect of
creatingan office, or of glvlng such'lncumbent~  the character of
an officer. Tho only way an oSfice can be created by the &egisla-
ture Is by a statute duly passed for .thatpurpose& Such an assist-
ant as is here bea considered is merely an employee, and not an
officer since he is given none of the powers of his principal and
is not authorized to perform any of the duties of his principal.
Therefore,since this position is not an office and the person
appointed thereto Is only an employee,his compensationmay prop-
erly be provided for In the appropdation bill, and suoh appropria-
tion bill is sufficientauthority for such appointmentand for the
State to pay .theappointee the salary provided thcrein.~
                            ,
           ,Xthisouropinio$,therefore, that each and,all of the
appropriatlons'harelnabove  referred to were in all things legal,
which conclusion-makesit unnecessarySor us to answer any of the
other questions~propounded  by you.
         fruoting that this satisfactorilyanswers your inquiry,
we remain,
                                         Your8 very ~truly,
                                I        ATTORHEX CEXMAL OF




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