### GENERAL WE ATTORNEY

OFTEXAS

April 8, 1953

Hon. Ottis E. Lock, Chairman Senate Finance Committee 53rd Legislature Austin, Texas OpinionNo. S-26 'Re:Constitutionalityof Dear Sir: rehouse Bill 561.
You have requested an opinion of the'constitutionallty of House Bill 561 of the 53rd Legislature creating the office of DistrictAttornet for the CrimlnalDistrict Court of Harris Co,unty, a olishing the office of Criminal DistrictAttorney of Harris County and transferringall civil matters to the County Attorney of Harris County.

Ho,use Bill 561 and its companion,Ho,use Bill 562, create the office of DistrictAttorney'for the Criminal District Co~urtof Harris Co~unty, abolish the,office of Criminal District Attorney of Harris County, create the office of.CountyAttorney for Harris Co,unty and prescribe the d,uties of each office.

T-t, I& nnw well settled that the Legislature is vestedwith the power to create the office of District Attorney and County Attorney, and prescribe their respective duties pursuant to the~provisionsof Section 21 of ArticleV of the Constftution of Texas. Reed v. Triplett, 232 S.W.2d 169 (Tex,Civ.App.1950, errorref.); Neal v* Sheppard, 209 S.W,2d 388, (Tex.Civ.App.1948, error ref.); Jonesv.~Anderson, 189 S.W.2d~65 (Tex.Civ.App.1945,error ref.). It is stated in Reed v. Triplett:

"The 51st Legislaturewas undoubtedly vestedwith power, had it deemed such action. _

Hon. Ottis E. Lock, page 2 (S-26)

necessary, to have created the office of criminal district attorney In the 66th JudicialDistrict composed of Hill County and to have abolished the office of county attorney in that county. Jonesv. Anderson, Tex.Civ.App., 189 S.W.2d 65, er.ref.jNeal v. Sheppard, Tex.Civ.App., 209 S.W.2d 388, er.ref. But the Legislature did not attempt to exercise any such power by the enactment of Art. 322~ of Vernon's Tex.Civ.Stats, It merely created the office of districtattorney in the 66th JudicialDistrict of Hill Countywithout abolishing or attempting to abolish the office of county attorney in that county. We see no Constitutional inhibition against the exercise of such power, even though the judicialdistrictwithin which the office of district attorneywas created consists only of Hill County
. . 0'
You are thereforeadvis,ed thatHouse Bill 561 and House Bill 562 are constitutional. We deem it advisable to point out, however, that Section 21 of ArticleV of the Constitution provides that "A county attorney, for counties inwhich there is not a resident criminal district attorney, shallbe elected by the qualifiedvoters of each county,who shall be commissioned by the Governor,and hold his office for the term of two years." In view of this provision,House Bill 561 abollshing the office of CriminalDistrict Attorney of Harris~ County and creating the'offic~e of DlBtrUztAttomey fork the CriminalDistrict Court of Harris County should be enacted prior to House Bill 562 creating the office of County Attorney. SUMMARY

House Bill 561 and House Bill 562 abolishing the office of CriminalDistrict Attorney of Harris County, creating,theoffice of District Attorney for the Criminal DistrictHon. Ottis E. Lock, page 3 (S-26)

Court of Harris County, and creating the office of County Attorney for Harris County are constitutional.
Yours very truly, APPROVED: J. C. Davis, Jr. County Affairs Division JOHNBEN SREPPERD Attorney General

C. K. Richards Reviewer Robert S. Trotti First Assistant By&e* Assistant

JohnBen Shepperd Attorney General
JR:am