                 THEA         OBNEY          GENERAL

                             OP%?EXAS


  wl[LL  WILSON
ATTORNEY    OWERAL
                              JUIY   25,   1962.


       Honorable Wm. A. Nobles              Opinion No. W-1398
       County Attorney
       Wise County                          Re:    Whether a City Council-
       Decatur, Texas                              man is disqualified from
                                                   holding such office by
                                                   virtue of being an offi-
                                                   cer of the depository
                                                   bank where the city funds
                                                   are deposited, and, if so,
                                                   whether the County Attor-
                                                   ney has a duty to insti-
       Dear Mr. Nobles:                            tute removal proceedings.
              You have requested an opinion of this office on the two
       following questions:
                   1. "Is a person holding the office of City
              Councilman in a city incorporated under the general
              laws of The State of Texas, disqualified from
              holding such office by virtue of being an offi-
              cer and director of the bank in which the funds
              of such city are deposited?"

                    2. "Is it the duty of an elected County
               Attorney or District Attorney to institute a
               suit for removal of an official of the governing
               body of a city incorporated under the general
               laws of The State of Texas?"
              We think your second question is answered by Articles
       5992 and 5994, V.C.S. Article 5992 provides as follows:
                    "When written sworn complaint charging any
               alderman with any act or omission which may be
               cause for his removal shall be presented to the
               mayor, he shall file the same and cause the alder-
               man so charged to be served with a copy of such
               complaint, and shall set a day for trial of the
               case, and notify the alderman so charged and the
               other aldermen of such town or city to appear on
               such day. The mayor and aldermen of such town
               or city, except the alderman against whom com-
               plaint is made, shall constitute a court to
               try and determine the case."
Hon. Wm. A. Nobles, page 2 (WW-1398)


Article 5994, V.C.S., sets out the procedure for the above des-
cribed trial.
       Your.letter indicates that the city in question Is in-
corporated under the general laws of this State.
       It is our opinion that the above two Articles set out
the proper method of, (1) determining whether a councilman
should be removed for the stated cause, and (2) the procedure
therefor.
       We are not unmindful of Article 339, V.C.S., which reads
as follows:
           "When it shall come to the knowledge of any
      district or county attorney that any officer in
      his district or county entrusted with the col-
      lection or safe keeping of any public funds is
      in any manner whatsoever neglecting or abusing
      the trust confided in him, or in any way failing
      to discharge his duties under the law, he shall
      institute such proceedings as are necessary to
      compel the performance of such duties by such
      officer and to preserve and protect the public
      interest."
       Articles 5992 and 5994, V.C.S., and the above quoted
Article 339, V.C.S., deal with the same general subject matter,
namely, removal of officers. Articles 5992 and 5994, V.C.S.,
deal specifically with mayors and aldermen, whereas Article
339, V.C.S., is a general statute. The law is well settled
that in such case a specific act will prevail over a general
act. The Texas Supreme Court, in Townsend v. Terrel, 118 Tex.
463, 16 S.W.2d 1063 (1929), stated:

            "This rule of construction has found fre-
       quent and apt illustration where one of the
       supposedly conflicting statutes was general in
       its terms and the other specific. In such a
       case it is universally held that the specific
       statute more clearly evidences the intention
       of the Legislature than the general one, and
       therefore, that will control. In such a case,
       both statutes are permitted to stand -- the
       general one applicable to all cases except
       the particular one embraced in the specific
       statute."
Hon. Wm. A. Nobles, page 3 (w-1398)


                                  ton 63 Tex. 437 (1885);
                                  2 98 S.W. 542 (1905);
                                  .k.2d 344 (Civ.App., 1943,
                            OS River Harbor Nav.Dist., 42 S.W.2d
                                                      Houston,

       You are therefore advised that it is our opinion that
it is not the duty of a county attorney or district attorney
to institute a suit for removal of an official of the governing
body of a city incorporated under the general laws of the State
of Texas.
       Since you have advised us in connection with your ques-
tions that the penal code has not been violated and in view
of our answer to your second question, we find that we are
prohibited from answering your first question by virtue of
Article 4399, Vernon's Civil Statutes, as the matter involved
does not pertain to your official duties.
                          SUMMARY
            It is not the duty of an elected
            County attorney or District attorney
            to institute a suit for removal of an
            official of the governing body of a
            city incorporated under the general
            laws of the State of Texas.
                                       Yours   very truly,
                                       WILL WILSON
                                       Attornev General of Texas




                                           Assistant

EMcV/mw
APPROVED:
OPINION COMMITTEE
W. V. Geppert, Chairman
Riley Eugene Fletcher
Iola Wilcox
Jerry Roberts
REVIEWED FOR THE ATTORNEY GENERAL
By: Leonard Passmore
