Honorable Robt. Id.Sikes      Opinion No. O-5024
Assistant County Attorney
Harrison County               Re: Constitutionality of
Marshall, Texas                   Article 326k-11, Vernon18
                                  R.C.S.; end related
                                  questions.
Dear Mr. Sikes:
          You request the opinion of this Department upon
the following questions:
          (1) Did the Legislature exceed its authority In
enacting S.B. 312, 47th Legislature (Vernon's Article
326k-11, R.C.S.)?
          (2) Was Mr. Sam B. Hall elected to the office of
Criminal District Attorney, or to the office of County
Attorney, of Harrison County, Texas?
         hrticle   326k-11 provides:
         '%ection 1. In any county in this State not
    embraced in or constituting either a Criminal District
    Attorney's District or a District Attorneyts District,
    and wherein the duty of representing the State in all
    criminal matters arising in suoh county devolves upon
    the County Attorney of such county, the Commissionerst
    Court thereof, upon petition of such County Attorney
    at any time during a non-election year, may, by appro-
    priate action spread upon the minutes of such Com-
    misstoners? Court, designate the office of County
    Attorney in such county as t he office of Criminal
    District Attorney of such County, end the incumbent
    of such offFce as the Criminal District Attorney of
    such County; and thereafter and until such time as
    such county shall be included v&thin a regularly
    created and constituted District Attorney's District
    or Criminal District Attorney's District, such office
    shall be designated as the office of Criminal District
    Attorney of such county, and the incumbent thereof shall
    be desi-gnatedas the Criminal District Attorney of such
    county; providing that such change in the desfgnation
                                                               -




Hon. Robt. M. Sikes - page 2, O-5024


    and appellation of suoh office and the incum-
    bent thereof, as aforesaid, shall in no manner
    alter or affect either the provious election
    and qualifications of the incumbent thereof,
    nor shall the same thereafter alter or affect
    either the rights, duties, or emoluments of such
    office or the incumbent thereof; and providing
    further that in all elections thereafter held
    to fill such office, and so long as the same
    shall be so designated, the said office shall be
    designated upon the ballot and in the election
    as the office of Criminal DistrictAttorney of
    such county; and providing further that in the
    event any such county be thereafter embraced in
    or consitutte a regularly created District
    Attorneyrs District or Criminal District Attorney's
    District, the designation of County Attorney  shall
    be restored to such office unless the office of
    County Attorney be abolished in such aounty.
          “Sec. 2.  It is not the intention of this
     Act to create any office of District Attorney
     or any other Constitutional office; but it is
     the intention of this Act merely to authorize
     a change in the name and appellation of the of-
     fice of County Attorney and the incumbent there-
     of in certain counties, without otherwise changing
     or affecting the rights, duties, or emoluments
     either of such office or the incumbent thereof.
          YSec. 3.  This Act is not Intended and shall
     not be considered or construed as repealing any
     law now in the statute books, except these in
     oonflict therewith; but it shall be cumulative
     thereof. Acts 1941, 47th Leg., p. 477, ch. 300."
          The only purpose, and the sole effect of such Act,
if valid, is to change the name of the office of County
Attorney in certain counties.
            Constitution of Texas, Article 5, Section 21,
provides:
          "A county attorney, for counties in which
     there.is not a resident criminal district attorney,
     shall be elected by the qualified votors of each
     county, who shall be commissioned by the Governor,
     and hold his office for the term of two years. In
     case of vacancy the Commissioners' Court of the
Hon. Robt. M. Sikes - page 3, O-5024



     county shall have power to appoint a county
     attorney until the next general election. The
     county attorneys shall represent the State in
     all cases in the District and inferior courts in
     their respective counties; but if any county shall
     be included in a district in which there shall be
     a district attorney, the respective duties of
     distriut attorneys and county'attorneys shall in
     such.counties be regulated by the Legislature.
     The Legislature may provide for the election of
     district attorneys in such distriots, as may be
     deemed necessary, and make provision for the
     compensation of district attorneys and county
     attorneys; provided, district attorneys shall
     receive an annual salary of five hundred dollars,
     to be paid by the State, and such fees, commissions
     and perquisites as may be provided by law. County
     attorneys shall receive as compensation only such
     fees, commissions and perquisites as may be pre-
     scribed by law."
          Article 1, Section 29, of the Constitution, pro-
vides:
          "To guard against transgressions of the high
     powers herein delegated, we declare that everything
     in this 'Bill of Rights' is excepted out of the
     general powers of government, and shall forever~
     remain inviolate, and all laws aontrary thereto,
     or to the following provisions, shall be void."
          Article 326k-11 attempts to change the name of
a constitutional officer. It is therefore void. State
ex rel. Hamilton, Attorne General, v. Trog, Prosscuting
int=ey,   68 Pac. t.wy
          In the case oited the Supreme Court of Washington
held that the title of the offioers designated by the Con-
stitution of that State as "prosecuting attorneys" may not
by changed by legislative enactment to @'districtattorneys",
since such change involves an smendment.of the Constitution.
          The Constitution of the State of Washington pro-
vided that the Legislature, by general and uniform laws,
shall provide for the election in the several counties of
wproseouting attorne sw and prescribe their duties. The
Legislature of that itate in 1937 passed an act, the first
three sections of which read as follows:
Eon. Robt..M. Sikes - page 4, O-5024


         %.ection 1. The offieial title of the
    offioe of Prosecuting Attornsg, and/or County
    Attorney, shall hereafter be k&own and desig-
    nated as Distriot Attorney, and the office of
    Proseauting Attorney and/or County Attorney
    shall hereafter be knoprpand designated as the
    offioe of District Attorney.
         "Sec. 2. The District Attorneys of all
    counties shall have and exercise all such powers,
    duties and privileges within their respective
    oounties as are by law now and hereafter conferred
    upon them as Prosecuting Attorneys and/or County
    Attorneys.
         "Sea. 3. Wherever the words ?Prosecuting
    Attorneyc and/or pCounty Attorney@ are or have
    been used in the laws of the State of Washington,
    the same shall be construed to mean Distriot
    Attorney."
          The main contentions of the respondent In the case
above cited are set out in the opinion of the court, from
which we quote as follows8
         aIt is further contended that the legis-
    lation complained of affects no vested right or
    interest, that it can harm no one, and it is
    argued, with much force and especial emphasis,
    that it in no way defeats the constitutional
    purpose and intent, in that it does not in any
    way aIter or change the oharaoter or duties of
    the offloe, but merely changes its name. This
    argument, it will be observed, is based upon the
    plausible and appealing logic which has made the
    words FWhatss in a name? That whiohwe call a
    rose by any other name would smell as sweetr, one of
    the most familiar quotations in our language.
         "It is further argued that there is no express
    or implied negation or prohibition in any section,
    article, or amendment of the State Constitution which
    would prevent the change, and we are remindedthat
    the presumptions are all in favor of the constitutional-
    ity of the act, and it is said nothing less than a
    certain and unequivocal violation of some constitutional
    inhibition can warrant us in holding it inoperative.
          "The matter before us appears trifling at first
     sfght, and is, in fact, of slight importance, in so
Hon. Robt. M. Sikea - page 5, O-5024


    far as dire& oonsequenoes are concerned. But,
    as suggested by the relator, if the Legislature
    has the power to change the name of one oonsti-
    tutional office, it has the power to change the
    name of any and all. The matter muld appear of
    greater consequence if, for example, instead of
    the act under consideration, we had before us an
    act changing the title of Governor to dictator or
    czar. But, wholly aside from these practical
    considerations, there is a principle involved
    of first importance. There is a constitutional
    inhibition, and, although it arises by implication,
    it is fully as compelling as it would be if
    directly expaessed.
          "With all deference to the.opininn.of the
     trial court, we cannot escape the conclusion
     that the relator appellant is oorreot in his
     contention that the effect of the first three
     sections of chapter 100, Laws 1937, is to amend
     the Constitution. Article 23 of that instrument
     provides that it can only be amended by a two-
     thirds vote of both branches of the Legislature,
     subsequently followed and confirmed by a vote of
     the people.
         *While we are reluctant to thwart the wishes
    of the prosecuting attorneys who earnestly desire
    the proposed change, it is plainly our duty to
    hold that the Legislature, acting alone, had no
    power to make it, and that the first three sections,
    at least, of chapter 100, Laws 1937, are inoperative
    and of no effeot."
          If it be contended that the violation of a con-
stitutional provision is purely technical, and that no
harm conceivably can result, it is sufficient to answer
that it is not within the power of the courts or of the
Legislature to justify the violation of a constitutional
provision on the ground that, in their opinion, to violate
such provision will do no harm. The people have the right
to name their constitutional officers. They have done so.
So far as the Legislature of the courts are concerned,
there is an end to the matter. No more dangerous princi-
ple of constitutional law could conceivably be established
than that a violation of constitutional provision may be
upheld because, in the opinion of the Legislature or the
courts, it can cause no harm.
Hon. Robt. M6.Sikes - page 6, O-5024


          You state, in connection with your second question,
that Sam B. Hall, at the Caneral Election in November, 1942,
received the following votesn
          For   Criminal District Attorney of Harrison
                County, Texas.......................584
          For County Attorney  of Harrison County,
              Texas DDlo~O~O~.~~~.~~.~..~~~~~~...    92

          It appears that in 1941, acting under the purported
authority of Article 326k-13, the Commissionersr Court of
Harrison County, Texas, changed the name of the office of
County Attorney of Harrison County to that of "Criminal
District Attorney of Harrison County."
          You are advised that, in our opinion, Mr. Hall was
elected to the office of %ounty Attorney of Harrison.County,
Texas."
          We assume that only the office of "Criminal
District Attorney of Harrison County, Texas", wss printed
on the ballot; that the people voting for the office of
ttCountgAttorney" wrote in both the name of the office and
the name of Mr. Hall as their choice therefor. Suohvotes
are nevertheless to be counted, upon the principle that
the officers charged with the duty of making up the ballot
can not, by their failure to place the office on the ticket,
deprive the people of the right to fill such office by their
votes at the general election, secured to them by law. See
our Opinion No. O-186, copy of which is enolosed; also,
Aura v. Rrandt (Minn.) ---1 N.W. m   381, at E. -
                                     -          385.
          The votes for Criminal District Attorney, in
our opinion, are likewise    to be counted as cast for Mr. Rall
for the office of County Attorney. The fact that Article
326k-11, and the prooeedingsunder it, were void, can have
no bearing on this question. It is beyond dispute that the
voters casting their votes for Mr. Hall for "Criminal Distriot
Attorney" were voting for him to fill the office of "County
Attorney, by whatever name it might be designated. Their
right to have these votes eounted in accordance with their
readily ascertainable intent is not to be frittered away
because the office has been erroneously designated by the
officers charged with the duty of preparing the ballot.
          Stubbs v. Moursund (Ct. Civ. Aps,) ----
                                             222 S.W. 632;
Moore ve P-206      Soy. 958,
.           -
    .   .       -


                    Hon. Robt. M. Sikes - page 7, O-5024


                              We trust that the foregoing satisfactorily answers
                    your questions. We thank you for the sxcellent brief accom-
                    panying your request, which has been of considerable aid to
                    us.


                                                      Very truly yours
                                                 ATTORNEY GEXERhL OF TEXAS
                                                 .s/ R, W, Fafrohild

                                                 BY        R.   W.   FAlrahild
                                                                     Assistant

                    RWT-MR/cg

                    APPROVED DEC. 22, 1942
                    s/ Gerald C. Mann
                    ATTORNEY GENERAL OF TEXAS

                    Approved Opinion Committee
                    By WRK, Chairman
