             HE    .!iITORNEY           GENERAL

                       OF       TEXAS




Hon. R. S. Wyche
County Auditor
Gregg County .~
Longview, Texas
Dear Sir:              Opinion No. O-7330
                       Re: Does the office of County Attor-
                            ney exist In Gregg County?
        We have your recent letter requesting an opinion of
this department upon the above stated question.
        House Bill Number 49, Chapter 23, Acts of the first
called sesslon, 42nd Legislature, as amended by House Bill
No. 226, Chapter 4, 44th Le islature, (Article 199, Subdi-
vision 124, V.A.C.S., Texas7 created and continued the of-
fice of resident Crlmlnal District Attorney of the 124th
Judicial District. Gregg County alone constitutes the 124th
Judicial District of the State of Texas.
        The Constltution of Texas, Article 5, Seclon 21, pro-
vides for the election of a County Attorney in the following
language:
        "A county attorney, 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." (Emphasis ours)
        The Legfslature, by the Acts hereinbefore mentioned,
having created and continued in existence the constitutional
office of Criminal District Attorney for Gregg County, and
in view of the above constitutional provision, which in ef-
fect provides that no County Attorney shall be elected In a
County having a resident Crimlnal District Attorney, we re-
spectfully answer your question in the negative.
        We think our opinion is supported by the case: Jones
vs. Anderson, et al, Texas Civil Appeals, San Antonio, 1945,
189 S.W. (2) 65, writ of error refused. This was a sutt for
mandamus brought by Jones against the County Judge and County
Commissioners of Bexar County to compel the Judge and Commis-
sioners to canvass votes cast for Jones for the office of
Hon. R. S. Wyche, page 2         O-7330



County Attorney at the November 7, 1944, $eneral election,
and to issue him a certificate of election to said office
and further seeking a declaratory judgment invalidating the
act of the Legislature which had therefore created the of-
fice of Criminal District Attorney of Bexar County. Jones
attacked the Legislative Act upon the grounds that such Act
was unconstitutional. The trial court refused Jones all
relief~sought and the Court of Civil Appeals affirmed the
trial court's judgment and upheld the constitutionality of
the Legislative Act creating the office of Criminal District
Attorney for Bexar County and further held that Article 5,
Section 21 of the Texas Constitution prohibits the election
of a County Attorney in a County having a resident Criminal
District Attorney.
        Our negative answer to your first question disposes
of your secondary questions.
                              Yours very truly
                            ATTORNEY GENERAL OF TEXAS


                              By s/Joe McCasland
                                   Joe McCasland
                                   Assistant.

JMcC:djm:JMc:wc

APPROVED OCT.24, 1946
s/Grover Sellers
ATTORNEY GENERAL OF TEXAS
THIS OPINION CONSIDERED AND APPROVED IN LIMITFD CONFERENCE.
