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            OFFICE OF THE ATTORNEY GENERAL OF TEXAS
                             AUSTIN
OROVER     SELLERS
*yTo”NEl    OENLRAL


 Eonorabls       Sidney Latham
 sscretarg       Of stete
 Austin,       Texas




                                                                               said     request     roed-

                                                                              tlon r6turn  shoxlng~
                                                                              d Nstriot   Attorney


                                                                        t the title   0r this
      oifloe      appear                                                ty and Dl.strlct    At-
                                                               prtvlouslp    advissd   this  or-                     :
                                                                6   StStUt6          proVi:ling    for     6
                                                              those       t?OU?ItieS     ccmprising            two
                                                             t'astland    County         comprises
                                                            udioiel    distrlots.

                                          lght of the ebova facts, ~111 you plesse
                                          c,ent UpOU the I'ollowriag inquiry:

                                           arl Connar,      Jr. be comlision6l           as              *County
                                             and 9lstrlct      Attorney,'      131strlct                 Xt-
                                        ris.inal   District     tttornay?'*

                       Al-t.       5,    360.   .21,   Of    t h6     COnStitUtiOn         Of   ‘T6X5.9,       iS
   aa follows:

                       "A oounty
                               attornsy,    for coJntles   ln which there is                                         .
       not a resldsnt    crlninsl     Ustrict   attorrtfy,   shall   be elected
       by th6 q;lal:fled    voters    cS.68oh  comty, who shall       be com-
       misslon6d   by the ';ov6rnor,      and hold hls Off106      for th6 term
    lion Sidney     Lathar, -   Page 2

             .


        of two genrr.       In ease OS veoanoy the comlesloacrs~                  Court
        of   the  oounty shall     hove power to appoint         a county attorney
        until the next general rlcctioa.              The county a!.torn6ys         shall
       reprssent      the St&t6 ln all oases in the Dlstrlot                and inferior
        aourts    in thelr    respeatlve    oountlcs;     but if any co.mty shall
       be Included       ln n district    ln whloh there shell           be a dlstrlot
        attorney,     the respective     duties   of dlstrlct        attorneys     and
        county attorneys       shall   in suoh counties       be regQate4         by the
        Lcglslature.       The Legislature      nay provide      for the election         of
        district     attorneys    da such.dlatrlats,        as ::ay be de6:.ed n60-
        essary , ah4 nake provision         for the conpcnaatloa          oi 4lstrlot
        attorneys,      and c.mnty attorn6ys;        provl-Ied,    dlotrlct     attorney8
        shall    receive   an annual salary      of five     huclrs4     4ollers,     to
        be pal4 by the Gtate,         and such &CC,       ocm~lsslons       and perqulal-
        tts as my be prcvlled          by law.     County attorzxyr,        shall   receive
        a8 compensation       only sach f66s,      ccmlsslons        an4 perqtilsites
       ~a8 nay be prtscrlbe4         by la~.~

                      hrtlCl6   322, Ternon's      AMotetcd      ClYll  CtEitat60,   pro-
    .Yld6s for     th6 election   of distrlot        attOra6ys    lh Ofrtaln    judicial
     districts,     but t&a 88th and 9lat         jullofal    districts   ar6 not nancd
     thcrbln.

                      Art.   329 of   said   sthtutea    reads    as follows:
        .
                    *A oounty attorney   for coimt.168   in which there 16 not
        a r66id6Et    crinlnal .4lstrlot   attorrey,   shall   ba biennially
        elected   for a term or two yetirs     by thb quallfleil   voters    of .
        each oounty."           a

                      You state in pur        reqmst      thst the County Judge of
    Pastlani       County has ~rwlously           advised  ycu thet they operate under
    thr &tetito      prsvf4ln~'fOr         a Crl5lhal      SlStrlOt~AttOrnCy          in thOa6
    cp,ntlss     ooapslsint;     tr;o ormor6       judicial      Ustrlots.         36 haY6 b66h
    unable to flud any stat.Ae              authorizing       e Cri?in&l       Xstriot     At-
    tora6y    in 03;i;,tles    005prir:h~       two or 5ore"ju~lola~            3lrtrlcts.
    The only statut6         we hevo been able to find             thet zould s~ply to
    PaatlanJ     Coat;      1s ?'.rtlcle    j26k-11,      passed    12 1941, which prod469
    for    a Crlzilnal    Xstrlct       Xttormy      in all     counties     in the :tate‘not
    enbrhobd la or c.:nsltALh.;             6lther     a Cri;dnal      7ietr:ot      Attorney's
    :)lstrlot    or a Clstrlct        ..ttorncy's      :lctrlot    anI v&rein          the ciuty



.    bperotin,<.
                                                                                       .   w.




                        .



Bon.   Sidney   Latham - Pegs      f


              In our opinion   No. O-5024,  a copy of which is en-
cIos6d   hsrewith,     we held said Article  326k-11  ImoonEtltutional.
3s her6 adopt said holding,        an3 it is aur oplnlon   that Eastland
County has not baen. and is not now, euthorlz6d          to have a Criminal
Dlstriot    i.ttorney.   _   ’

              In further      support   of this   opinion,    WE direct     your
attention     to th6 case of Hill        County YE.    Chsppard,    Comptrollbr,
178 S. X. (2nd) 261, whsreln the Suprea                Court was passing        upon
Art1016     326q of Vernon’s       Annotated    Civil  Stntutes,    whloh was
al&o .passed in 1941 and which attenptsd              to Cr6at6    th6 oXlo       of
Crlmlnal     3lstrlot     Attorney    in d6rtaln    counties.    The ‘%preme
Court stated       as its opinion      that the t6rm %rlf%lnal        DlstriOt
iittorneyv,     as used in th6 Constitution,          referd   to 8 class      or
klnd~ of district        attorneys    and that a Criminal      District     Attorney
la a District        Attorney   within    the msanlng of the Constitution.

               ThBrefore,      if a Criminal       Dlstrlot    Attorney      le a
 District     Attorney,     within    the meaning of the Constitution,              and if
 Eastland     County is not authorized            to have a District        Attorney    undar
,Art.   322,   then it will       be goY6med       by Xrticle      329 abOY     set out pra-
 riding    for a county Attorney          in counties       wn6r6 there      is no re-
 sident    Criminal     District     Attorney,      or, as held by the Supreme
 Court,    in ootiti6s      wh6r6 there is no DlstrlOt             Attorney.    AO-
 eordlngly,      you are advised        that ttc law Iunder which Xastland
 County has b66n operatlns            is unoonstltutlonal          and void,    and that
 in any EY6nt fastlan3           County is only authorlzsd            to have a County      .
 Attorney     and the said Earl Conner,             Jr. should be commissioned
 as ,;County Attorney.         In further      support     ot this    concluelon,    :y6 are’
 advlssd     by 63.   Cnn6r      that h6 qualified         as County Attorney       and made
 bond as County Attorney,            vhlch bond was approved by the Co?miss:on6rst
 Court of Eastland         County.
         8
               Trusting     that this      satisfactorily       answ6rs your inquiry,
 we rsmaln

                                                       Yours   very   truly,



                                                  BY
                                                                         Assistant
