                     January 5, 1962

IionorableW. G. Walley, Jr.
Acting Criminal District Attorney
Jefferson County
Beaumont, Texas
                         Opinion No. WW-1236
                        Re:   Authority of the Acting Criminal
                              District Attorney of Jefferson
                              County to employ or terminate the
                              appointment or employment of
                              Assistant Criminal District Attor-
                              neys.
Dear Mr. Walley:
         Your request for an opinion reads as follows:
         'IOnthe 2nd day of January 1962, this writer,
    as Acting Criminal District Attorney of Jefferson
    County, Texas terminated the appointment of W. E.
    Lea, Assistanc Criminal District Attorney for Jef-
    ferson County, Texas.
         Vubsequently, said former Assistant Criminal
    District Attorney requested and obtained a hearing
    before the Honorable Commissioners Court of Jeffer-
    son County, Texas, the same being for the purpose
    of questioning why the appointment of the said W. E.
    Lea should be legally terminated. Said former
    Assistant Criminal District Attorney stated as
    grounds in his request for a hearing before the Hon-
    orable Commissioners Court of Jefferson County,
    Texas, that he had in all ways performed the duties
    assigned to him; that he was appointed by the now
    suspended Criminal District Attorney and that the
    appointment had been approved by the Commissioners
    Court; that neither the now suspended Criminal Dis-
    trict Attorney nor the County Commissioners Court
    had rescinded his appointment and approved of the
    same; that the loss of said appointment at this time
    would entail a financial hardship on him the said
    W. E. Lea; and that there was no justification for
    the Acting Criminal District Attorney's action.
Honorable W. G. Walley, Jr., page 2   &W-1236)


          "This writer now requests the Honorable Attorney
     General of Texas to inform him of whether or not he,
     as Acting Criminal District Attorney, has authority
     to terminate the appointment of an Assistant Criminal
     District Attorney and whether or not he has the au-
     thority to hire Assistant Criminal District Attorneys."

          Article 3902, Vernon's Civil Statutes, provides that
whenever any district, county or precinct officer shall re-
quire the services of deputies, assistants or clerks in the
performance of his duties, he shall apply to the Commissioners
Court of his county for authorit-
                                J to appoint such deputies,
assistants or clerks, stating 'bysworn application the number
needed, the position to oe filled and the amount to be paid.
          Sections 5 and 6 of Article 52-160b, Vernon's Code of
Criminal Procedure, provide in part as follows:
          "Sec. 5. The Criminal District    Attorney of
     Jefferson County, for the purpose of   conducting the
     affairs of this office, and with the   approval of the
     Commissioners Court, shall be and is   hereby author-
     ized to appoint nine (9) assistants,   and fix their
     salary rate as follows: . . .
         Y?ec. 6. Should such Criminal District Attorney
    be of the opinion that the number of assistants or
    stenographers above provided is not adequate for the
    proper investigation and prosecution of crime and the
    effective performance of the duties of his position,
    with the advice and approval of the Commissioners
    Court he may appoint additional assistants and steno-
    graphers or other employees, as hereinafter limited
    and fix their salaries as follows: . . .'I
          Section 4 of Article 326g, Vernon's Civil Statutes,
applicable to Jefferson County, provides as follows:
         Vet. 4. The assistant district attorneys above
    provided for, when appointed shall take the oath
    of office and be authorized to represent the State
    in any court or proceeding in which such district
    attorney is or shall be authorized to represent the
    State, such authority to be exercised under the
    direction of said district attorney. Any such as-
    sistant, stenographer, investigator, or employee
    whether regular or additionalt shall be subject 10
    removal at the will of said district attorney or
    criminal district attorney."
Honorable W. G. Walley, Jr., Page   3   (W&1236)


          It has been held by this office in numerous opinions
that appointments under Article 3902 above referred to, are not
subject to confirmation by the Commissioners Court and that the
Commissioners Court has no power whatever over naming the indi-
vidual to be appointed an assistant. Attorney General Opinions
o-304 (19391, O-480 (19391, O-1914 (1940) O-3448 (19411, o-
3925 (19411, V-699 (1948) and V-1050 (1956). It is onr opinion
hat a similar construction is applicable to the provisions of
b:-title52-160b Vernon's Code of Criminal krocedure. Further-
tlire,Article 3!?6g,Vernon's Civil Statutes specifically pro-
vides that assistant district attorneys whe iher the regular or
additional shall be subject to removal~at the will of the dis-
trict attorney or criminal district attorney.
          In view of the provisions of Article 3902, V.C.S., Ar-
ticle 52-160, V.C.C.P. and Article 326g, V.C.S., you are advised
that as Acting Criminal District Attorney for Jefferson County
you have the authority to terminate the appointment of any as-
sistant criminal district attorney. You are further advised
that you are authorized to hire assistant criminal district attor-
neys.
                             SUMMARY
          Under the provisions of Articles 3902, Vernon's
     Civil Statutes, 52-16013.Vernon's Code of Criminal
     Procedure, and 326g of Vernon's Civil Statutes, the
     Acting Criminal District Attorney of Jefferson County
     has the authority to terminate the appointment or em-
     ployment of any assistant criminal district attorney
     and has the authority to hire assistant criminal dis-
     trict attorneys.
                              Yours very truly,
                              WILL WILSON
                              Attorney General of Texas




JR:zt:wb
Honorable   W.   G. Walley, Jr., page 4   (WW-1236)


APPROVED:
OPINION COMMITTEE
W. V. Geppert, Chairman
Pat Bailey
Arthur Sandlin
Thomas Burrus
Fred Ward
REVIEWED FOR THE ATTORNEY GENERAL
BY:   Houghton Brownlee, Jr.
