                                                                     _:


                                                                     436




       OFFICE     OF THE ATTORNEY GENERAL     OF TEXAS
                            AUSTIN




Honorable Joe c. Olndn6y
Criminal Dlatciot Attorwy
Robk county
ti41Xd4rMAI Toznr


Dear Sir8




                                             1944, requestlug  the
opinion of this                             on8 rtated therein 18,
b part; aa fol

                                    pour  statement over the
                                    hereby rrqusstlng  an
                                      neral’s Office relative
                                   he Offloe a$ Crlmlnal Dirr-
                                   risu ot the faot that this
                        o be bound by the d4014ion rendered
                        ourt againat Hill County Tuesday of
                        impoitant that w4 have a ruling on

                  Do48 the person who was aerving au
     Criminal Dlrtriot  Attorney automatloally  Broome
     County Attornrp

             “II. What ii hia salary, and fi eet by
     tho Coamiasionera Court between what limits?
              “ISIW Bow mar17 asrletantr   are now permitted
      ana what may their salaries    be?
Donorablr   Jo4 0. Cladney,   prig4 2




                 4Th4 aeseessd valuation    of th4 county 1s
      slightly    less than $90,000,000.00;    and the lataat
      Federal    Census glvea the oounty about 51,000 popu-
      lation.w


                 In th4 oas4 or Dill County, T4xa8, p4tltloa4r.           v.
C4o. H. Sh4ppard, Comptrol.l4r,rmspondent (not yet reported)
ttm ihapreae Court hrld Art1014 3269,         Vdrhon*s Annotated Civil
Statutes,.   invalid.     Art1014 $26~ was orlglnally        4naot4d by
the 42nd L4glslatur4,      R4gular S4sslon,     1931, as S4nat4 Bill
Ho. 220, Chapter 354, Page 044, GeneralLaws of T4xas.                 Th4
original    Aot was appllcablo     to oountlds in this Stat4 having
a population     of not less than 33,200 and not sor4 than 75,000
inhabitants    and not oontainlng      a oity of more than 20,000 in-
habitants    as d4terralned by the last pr4oedlng Bsderal C4nsus
and 4aoh suooe4dlng Pedrral C4nsus thsr4after.            and in whloh
oouhtles ther4 wet4 on4 or mor4 Judicial          Dlatrlats.        The 42nd
Lagislatur4     at the lrlrst Call46 Seasion,1931, as4nded Seation 1
of S4nat4 Bill 220, supra, so. as to mak4 said Aot applIoabl4               to
oouutiss    having a population      oi not less than 32,000 and not mor4
than 75 000 lhhabltauts       and not containing     a olty of mor4 than
SO.000 fnhabltants      as detersine     by the laet preceding federal
04nsus, and 4aeh suoosrdlng V4drral C4nsus thereafter.               (Thr
azwtndment to said Beatlon1 her4totor4          wntloned     is 9. B. No. CO,
Ch. 3.S. p. SO, 42nd Leg., First C. S.)

              Vernon’s &notated   Civil Btatutas do not oontals
th4 amendmentto Ssotlon 1 heretororcr mentlowd,    how4ver, w4 must
assum that th4 Suprae Court kn4w of sald am4ndimnt and oonsldered
th4 Statute as am4ndsd in th4 oasr ot 8111 County 1. Qeo. H. Sh4p-
pard , supra.   Therefor4, Axtlole 320q, supra, a8 amended, 1s ln-
valid under th4 holding of th4 Suprwm Court in the said ease
of Xl11 County v. 040. Ii. Sheppard, suprae
                811104 Artiolo 3269 has been hrld Invalid by the Supreme
 Court, it nsosssarfly     follovvs. that th4 ofilor     purportedly   areated
 “Criminal Distrl4t    Attorney,”     doer not 4xlet in those counties
 Coining within th4 provlslons       of said artlol4.      W4 do not think
 that It oan be said that where a person runs for and 18 4leoted
 to the oiflc4   of 4Crlnlnal Dlstrlot       Attorney” undar th4 provisions
 Of Utiol4    326q, that suoh pereon is now the County Attorney after
 said statuts   h.88 b44n held invalid.        Thsrefore,   w4 rssgeotiully
 answer your first    question,     as stated abovr, in thr nrgativ4.
                                                                           438

nonorabl4          Jo0 C. Oltidney,   p1g4 3




                fn r14w or th4 for4golng,    and our Opinion No. O-
3158,    it    1s  opinion that Mr, Oladmy fs sow a d4 fa0t0
                     our
oounty attorn4y.     It 18 our turthrr opinion that th4 lr al tit14
to the oowty &torwy*s        Offi04 Oodld Only be roWred        L on4 or
two W~YS~     by 414otion,  or by appointvmt     to that offi        M~F.
Ol.a&ey has n4ith4r hem llrotrd tior appointed to the offi            Of
county Attors4y,    lo hs never had lrgal    tit14 *O th4 OOWtY at-
torn4y's offfoe.       It rhmld b4 born4 in t&d that ths dr faoto
0rii04r   iwst surrend4r poso4sslon    of his offio4    as 800B as a
94rsos is duly 4lsotrd OT agpointrd to th4 off104 ad ha* putii-
flwl as provided    by law.    Equity will not lrnd him its aid to
r44traln a ~duly appolnt4d 90x80s fms rntering upon the dis-
oharg4 of the duties of the offfo4,       BOOrwill   it rOStrain the
payment of the salary to him. (B4e Dhr T* DmWn, 191 2. D. 379,
and Tex. Jur., Vol. 34, Q. Sea)
                 Rusk County ha4 a population     32,484 lnhabltants       ao-
oordlng to thr 1930 Fsd4ral C4nsu8 aad said Ooanty has a popula-
tion or 81,023 inhabitants       aooording to the 1940 federal Cewus.
As Busk County had a pcqmlatlon of 58,464 inhabitants           aooording
to th4 1930 Fodrral C4neu8, under the applioable          prorlslons     of
Art1014 SW3 and Art1014 3891 th4 naxlnum oom 4nration of th0
County Attorney of Rusk County cannot rxoeed 1 3300 p4f year. In
vi4w or th4 for4golng      statute4   and Seation 13 of Art1014 39l&,
VBrnon*s Ahuotateb Civil Statutes,        th4  County Attorney    of Roik
County who performs th4 dutlss of Dlstrlat         Attorn4y must b4 paid
is mon4y as annual salary in tw4lv4 squal lnstallm4nts            0r not 144s
than the total sua sarndd as ooapsnsatlon         by him in his orrioial
0aEaOity for the fisoal       y4ar 1935 and not mop4 than th4 nuixiaum
allowed suoh 0ffl04r      under laws @XlStlng on August 24, 1935.           AS
hsr4toror4    statrd,  th4 maximus salary or tha County Attorwy or
Rusk Cowty, under A~10108 3083 and 3891 18 $SM)O p4r ysar, how-
4V4r, under    th4 prorlslons    0f SeOtiOB 13 of Art1014 39124 the
mXknOa awount allowed the County Attorney as salary             my b in-
0rrased on4 p4r oent for 0aoh one million         dollars ~a!I uation0r
fraotional    part thereof1n 4x0488 of twenty million        dollar*     talus-
Uos o’l4r and above th4 pn~uioon allow46 suoh offlO4r under laws
4XistiBg    On Augu4t 24, 1958,      (944 th4 oasas or Ha0ogQohes         County
x* ~4Bklas     140 8. 111. (26) 901, and Daoogdoohes Coanty v. wiBa4r,
140 9.        w.   fad)    978)
 Honorable    Jo4 C. Gladney,     perge 4




                    WI now consider your third question.              Artlo      331,
  V4rnon’e Annotated Civil Statutes,           provides,      in effect,    th3t
  county attorneys,        by oons4nt or th4 oo;amiosloners* oourt, shall
  hzve power to appoint in writing one or aOr aesietants,                    not to
  4roeed three, ror their respeotive           Countlea, who shall havr the
I same powers, nuthorlty        and gualliiOation8        as their prinolpals,
  at whose will th4y ehall hold oifice.               Article    331, was enacted
  in 1891, and applied only to the appointsent                0s aaiistant     OountY
  attorneys.       Art1014 $908, Vernon’a Annotat4d Civil 3tntutaa.                as
  am4nd46, is 8 later statute,          r4g .rding the appoint-Wnt Of de-
  putias,    assistants     or olerks by dlatriot        oounty or pr4OinOt
  orriosrs.      Articles    331 and 3902 must be oonsldsr46 and oonstrued
  together,       In view oi Mese statutes,        it    ls~our ODinion, that
  a4slstaBts      of the County Attorney      or Rusk OouBtY must be appointed
  ln oomplianoe with said statutes,             Considering th4 two statutes
  together,     it is our opinion that it is within the dleoretion                 of
  the oommissioners*        oourt to determine ths number Of assistants
  to br appoint,&, as in th4 disor4tion            of said oourt may b4 proper-
  Stat4d another way, that portion of Art1014 331 limiting                   the uum-
  ber of assistants        that mny be appointed is no longer applioable,
  however,    the other portions of Art1014 331 ar4 applioabl4                 and the
  assistants      must oonply with th4 provisions           of said statuts.       Seo-
  tlon 2 of Article        3902 is appllcabl4     to Rusk County and will govern
  the.oompsnsatlon        to be paid the assistant         county attorney.        The
  comp4nsatlon or the first         aeeistant    oounty attorney       oemnot 4xe44d
  $2,000 per aMUQ and th4 oomp4nsation of other assistants                     of the
  oounty attorn4y oannot 4x0446 41,700 p4r annum 4soh.                    Ths oom-
  p4nsation of said assistants          to b4 flxsd by the comml4sioners*
  oourt in oomplianoa with Section 2 Of i&i014                  3802.
                W4 hsv4 oareiully   oonsldrrsd your letter    of Uaroh 1,
  1944, supplemsntlng   your letter  of yebruery 24, 1944, whioh is
  quoted in part above.    hrter oar4fu!.ly oonsidering   Art lcle 326n,
  VBrnon’s Annotet4d Civil Statutes,     olted in your letter    of Sarah 1,
  x4 are of the opinion that said statut4 has no applioation        whatso-
  4Per to the questions   under oonelderation.
                   W4 h~iv4 also oaretully     oonsid4red th4 various Acts
  orsating   ths dlfrarent     District  Courts in Rusk County, and it is
  OUTopinion that       theo4 AOtS do not airsot our answers to your
  W44tions as her4toror4 stated,            Art1014 V, i%otlon 21 or the
  Stat4 Constitution,       among other things,     provides,     1B ;rfect,    that
  the bgislature       may provldr for the eleotion       of district      attorneys
  in said districts      as may be deemed neoessary and make provtsion
  for the comp4nsation or said district          attornrys,      Aft4r car4-
  rullY r4Vi4Wlng krtiol4       322, Vernon's Annotated Cl*11 Statutes
  It is noted that said statute does not authoris4              th4 eleotion      &
  a di4trict    attorney for any of the Judicial         Districts    or Rusk County.
  Therefor4, there is no statutory         authority   authorizing      the oleotlon
  Or a distriot     attorney for said oounty or the Judicial            Dirtriots
  thereor.
EC----
!

                                                                                              440
         Iionorable    Jo8 C. Oladney,     pago 5




                          You oteto In your lottetr of Yaroh lrt that yooo
         ara   anxious   to know what ofi     oxfat  In Ruek oomty at thla
         tine, that is, lf it i8 County Attorney,      Criminal District   At-
         torney or Dirtriot      Attorney.   In via* of the f orsgolng,  you
         are reepeotiully     advised that it 18 our opinion that the oon-
         etitutlonal     0rri08   0r   County   Attorney   rxiatr    in m8k      cotrnty
         at thlr tlao, and that tha offloe oi Criminal                District     Attorney
         or Di8triot  Attorney do88 not 8xi8t.

                                                            Your8 very truly
                                                    AT!l'ORNEY     OF TEXAS
                                                             GENERAL



                                                                    Ardrll   William8
                                                                             Ao8istant

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