                       The Attorney              General of Texas
                                            October    9, 1979

MARK WHITE
Attorney General


                   Honorable Tim Curry                      Opinion No.   MW-6 6
                   Criminal District Attorney
                   Tarrant County Courthouse                Re: Authority of        a district
                   Fort Worth, Texas 76102                  attorney to represent the applicant
                                                            in a proceeding to commit a person
                                                            to a residential care facility under
                                                            the Mentally Retarded Persons Act
                                                            of 1977.

                   Dear Mr. Curry:

                        You have asked whether the Criminal District Attorney of Tarrant
                   County and his assistants have authority to represent the applicant in a
                   commitment proceeding brought under section 37 of the Mentally Retarded
                   Persons Act of 1977,V.T.C.S. article 5547-300.

                        The general statutory authority for the office of the Criminal District
                   Attorney of Tarrant County is V.T.C.S. article 1926-42. This statute is
                   authorized by article V, section 21 of the Texas Constitution. The statutory
                   grant of authority for the Criminal District Attorney of Tarrant County,
                   Texas, is stated in the following language:

                              Sec. 3. It shall be the duty of said Criminal District
                              Attorney or his assistants as herein provided to be in
                              attendance upon each term and all sessions of the
                              Criminal District of Tarrant County and of all
                              sessions and terms of the County Court of Tarrant
                              County, Texas held for the transaction of criminal
                              business, and to represent the state in all matters
                              pending before said courts, and to represent Tarrant
                              County in all matters pending before such courts, the
                              Commissioners Court of Tarrant County and Justice
                              Courts and any other courts where said Tarrant
                              County has pending business of any kind or matter of
                              concern or interest.. . .

                         This statutory duty is consistent with the previously established theory
                   in the State of Texas that county governments are creatures of the state
                   created to carry out state policies.




                                                  ,D. 203
Honorable Tim Curry    -     Page TWO   (Mw-66)



      The cases in Texas dealing with the authority of district and county attorneys have
emphasized the joint nature of the state and county interests in that such cases have
specifically authorized the district and county attorneys to act in matters as officials
“representing the State.” See, e.g., Garcia v. C. W. Laughlin, 285 S.W.Zd 191(Tex. 1955);
State ex reL Downs, et al v. Hamey, 164 S.W.Zd 55 (Tex. Civ. App. - San Antonio 1942,
writ ref’d w.o.m.); State ex rel. Hancock v. Ennis, 195 S.W.2d 151(Tex. Civ. App. - San
Antonio 1946, writ ref’d nr.e.1, in which the court held that the legislature was without
authority to restrict the powers of the county attorneys or district attorneys and the
attorney general to represent the state. See also Attorney General Opinion V-503 (1948).

      In view of the fact that the statute creating the office of the Criminal District
Attorney of Tarrant County, Texas, and the case law of the State of Texas indicate that
your office may represent the state and county in matters of interest to them, it is
necessary to determine if the state and Tarrant County have a sufficient interest in the
commitment of a person under V.T.C.S. article 5547-300 to authorize your office to
represent an applicant in such a commitment. In most instances the moving party is the
superintendent of the residential care facility or is another state official, and in such
cases we believe it is clear that the state has an interest in the matter. In instances in
which a state official is not the moving party, the state may also have an interest, but irl
such cases the determinaticn will depend on the specific facts.

      Article 5547-300, viewed in its entirety, is an act which sets forth the interest of
the state, in protecting and safeguarding the rights of the mentally retarded persons and
the public at large. Thus representing the state’s interest in appropriate commitment
proceedings is a responsibility of the office of the criminal district attorney.

                                      SUMMARY

           The Criminal District Attorney of Tarrant County and his
           assistants are authorized to represent the applicant in a proceeding
           to commit a person to a residential care facility under the Mentally
           Retarded Persons Act of 1977.




                                              MARK WHITE
                                              Attorney General of Texas
JOHN W. PAINTER, JR.
First Assistant Attorney General

TED L. HARTLEY
Executive Assistant Attorney General

Prepared by Martha Allen
Assistant Attorney General




                                         P.   204
Honorable Tim Curry   -   Page Three   (m-66)



APPROVED:
OPINIONCOMMITTEE

C. Robert Heath, Chairman
Martha Allen
David B. Brooks
Walter Davis
Susan Garrison
William G Reid
Bruce Y oungblood




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