Honorable Wm. B. Sullivant     Opinion No. M-904
County Attorney
Cooke County Courthouse        Re:    Who serves as District
Gainesville, Texas                    Attorney of the 16th
                                      Judicial District, pursuant
                                      to Senate Bill 906, Acts
Dear Mr. Sullivant:                   62nd Leg., R.S., 1971.

          Your recent letter requesting the opinion of this
office concerning the referenced matter states, in part, as
follows:

          "The 62nd Legislature, Regular Session, 1971',
     passed Senate Bill 906, creating the 235th Judicial
     District Court and the office of District Attorney
     for the Court. The District will include Cooke,
     Wise and Jack Counties.  The Governor appointed me
     to fill the position of District Attorney for this
     court until November, 1972, when the term of office
     will expire and the office will become elective. A
     problem has come to mind on which I would appreciate
     an Attorney General's Opinion to help clarify matters
     here in Cooke County.

          "It is this: Cooke County is already in the
     16th Judicial District, which District serves both
     Cooke and Denton Counties. The 16th was set up so
     that the County Attorneys of Cooke and Denton Counties
     would serve as District Attorneys of the 16th District
     when the court sits in their respective counties. As
     I read Art. 199-A, Subchapter B, Sec. 2.007, the County
     Attorney in Cooke County shall serve the new court
     created by S.B. 906, 62nd Legislature, Regular Session,
     1971. I do not think this was the intent of S.B. 906.
     If the creating of the office of District Attorney in
     S.B. 906 is to be interpreted as superceding the pro-
     visions of Art. 199-A, Subchapter B, Sec. 2.007, please
     advise whether the District Attorney under S.B. 906
     shall serve in the 16th Judicial District or whether


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Hon. Wm. B. Sullivant, page 2              (M-904)



     the County Attorney shall continue to serve as
     District Attorney in the 16th Judicial District."

          The 16th Judicial District was created by Article
199(16), Vernon's Civil Statutes.

          Section 2.007 of Article 199a, Vernon's Civil Statutes,
which is the Judicial Districts Act of 1969, provides as follows:

          "The district attorney (or county attorney
     or criminal district attorney), the sheriff? the
     district clerk, the bailiffs, and other officers
     serving the other district court or courts of the
     county shall serve in their respective capacities
     for the court created by this Act."

          The caption of Senate Bill 906, Acts 62nd Leg. R.S.
1971, provides, in part, as follows:

          "An Act . . . creating the 235th Judicial
     District . . .; amending the Judicial Districts
     Act of 1969, as amended (Article 199a, Vernon's
     Texas Civil Statutes) . . .; creating the office
     of district attorney of the 235th Judicial District
     . . .I,

          Section 2 of the Act provides as follows:

          "Subchapter C, Judicial Districts Act of 1969
     (Article 199a, Vernon's Texas Civil Statutes),is
     amended by adding Section 3.028 to read as follows:

          "'Section 3.028. (a) The 235th Judicial District,
     composed of the Counties of Wise, Jack, and Cooke, is
     hereby created.

          "'(b) The enactment of this amendment shall in
     no way change, alter, diminish, or affect the pro-
     visions of Subdivision 16, Article 199, Revised
     Civil Statutes of Texas, 1925, as amended, but is
     in addition to and cumulative of those provisions."'

          Section 4 of the Act provides:

          "(a) The office of district attorney for the
     235th Judicial District is established.  The district


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     attorney shall have the powers and duties prescribed
     by law for district attorneys.

          "(b) On the effective date of this Act, the
     Governor shall appoint a district attorney for the
     235th Judicial District who shall serve until the
     general election in 1972 and until his successor is
     elected and has qualified. . . .'I

          Section 8 of the Act provides:

         "All laws and parts of laws in conflict here-
    with are hereby repealed to the extent of such con-
    flict and in any and all cases of such conflict,
    the provisions of this Act shall prevail."

          A conflict is thus presented by portions of the fore-
going statutes. On the one hand, Section 2.007 of Article 199a,
quoted supra! states, in effect, that the district attorney of
the 16th Judicial District (who is the County Attorney of Cooke
County when the 16th Judicial District Court sits in that County)
shall be also the District Attorney of the 235th Judicial District
Court created pursuant to Article 199a.

          On the other hand, Section 4 of Senate Bill 906, quoted
supra, establishes the office of the District Attorney for the
235th Judicial District, and provides for his independent election,
with no reference being made to the District Attorney of the 16th
Judicial District.

          We are of the opinion that the language of Section 8 of
Senate Bill 906, quoted supra, is controlling in resolving the
conflict adverted to hereinabove, and that the specific provisions
of Section 4 of the Act relating to the establishment of the office
of District Attorney for the 235th Judicial District have impliedly
repealed the language of Section 2.007 of Article 199a, insofar
as that language would prohibit the establishment of the separate
office of District Attorney for the 235th Judicial District.

          The applicable rule of statutory construction has been
stated as follows:

          "(W)here irreconcilably conflicting acts are
     passed at the same time or where parts or sections
     of the same act are in irreconcilable conflict, the
     act or provision later in position prevails as the


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Hon. Wm. B. Sullivant, page 4              (M-904)



    latest expression of the legislative will, and re-
    peals the other in so far as there is irreconcilable
    conflict."  53 Tex.Jur.Zd 150, Statutes, Sec. 101.

See, also, Attorney General's Opinion No. M-472   (1969).

          In discussing the law of implied repeal, the Supreme
Court of Texas, in State v. Easley,~~,.404
                                         S.W.2d 296 (Tex.Sup.
1966) stated, at page 300, that:

          "The rule of law applicable is stated in the
     case of Commercial Credit Co., Inc. v. American
     Mfg. Co., et al. (Tex.Civ.App. 1941), 155 S.W.2d
     834, 839, writ refused, as follows:

          "'We are not unaware of the general rule of
     law in this State which holds that repeals by im-
     plication are not favored. But as early as Rogers
     v. Watrous, 8 Tex. 62, 58 Am.Dec. 100, and by
     numerous cases on down to recent dates it was
     announced that subsequent statutes revising the
     subject matter of former ones, and evidently in-
     tended as a substitute for them, although con-
     taining no express words to that effect, must
     operate to repeal those going before. This rule
     was followed by the Commission of Appeals in First
     Nat. Bank v. Lee County Cotton Oil Co., 274 S.W.
     127, where the authorities are collated over a
     period of seventy-five years.  See also Meek v.
     Wheeler County, 135 Tex. 454, 125 S.W.2d 331,
     approved by the Supreme Court, 135 Tex. 454, 144
     S.W.2d 885.' See also Gaddis v. Terrell, Land
     Commissioner, 101 Tex. 574, 110 S.W. 429 (1908)."

          In view of the   foregoing, we are of the opinion that
Section 4 of Senate Bill   906 impliedly repeals Section 2.007 of
Article 199a, insofar as   Section 2.007 relates to the office of
District Attorney of the   235th Judicial District.

          Your questions are, therefore, answered as follows:
(a) the County Attorney of Cooke County shall serve as the
District Attorney of the 16th Judicial District Court, when
that Court sits in Cooke County, and (b) the District Attorney
of the 235th District Court, created by Senate Bill 906, shall
serve that Court in all counties in which it sits.



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.      .




    Hon. Wm. B. Sullivant, page 5                  (M-904)



                             SUMMARY

                Section 4 of Senate Bill 906, Acts 62nd Leg.,
           R.S. 1971, impliedly repeals Section 2.007 of
           Article 199a, Vernon's Civil Statutes (the Judicial
           Districts Act of 1969), insofar as Section 2.007
           relates to the office of District Attorney of the
           235th Judicial District.

                The County Attorney of Cooke County shall serve
           as the District Attorney of the 16th Judicial District
           Court, when that Court sits in Cooke County.

                The District Attorney of the 235th Judicial
           District Court, created by said Senate Bill 906, shall
           serve that Court in all          in which it sits.

                                                truly yours,




                                                               f Texas

    Prepared by Austin C. Bray, Jr.        I'
    Assistant Attorney General

    APPROVED:
    OPINION COMMITTEE

    Kerns Taylor, Chairman
    W. E. Allen, Co-Chairman
    Sally Phillips
    Wardlow Lane
    Van Thompson, Jr.
    Bill Craig

    MEADE F. GRIFFIN
    Staff Legal Assistant

    ALFRED WALKER
    Executive Assistant

    NOLA WHITE
    First Assistant



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