January 25, 1951

Eon. F. T. Graham Opinion Ro. v-1147. County Attorney Cameron County Brownsville,

Texas Re: Authority of a county attorney to prosecute violationsof municlpal ordinancesin co% Dear Mr. Graham: poratlon court.

Your request for an opinionpresents the question of the duty of the county attorney in a county where there is no resident criminaldistrictattorney to represent the prosecutionin corporationcourt,where the ofSense charged is a violation of an ordinance, but not of any penal statute of the State of Texas.

Section 21 of Article V, Constitutionof Texas, provides in part:

"The county attorneys shall represent the State in all cases In the Districtand inferior courts in their respectivecounties; but if any county shall be included in a district in which there shall be a district attorney, the respectiveduties of districtattorneysand county attorneys shall in such countiesbe regulatedby the Legislature." Sy'the express'

terms of the above constitutlonal provisionand under the decisionsof the courts of this State, %he county attorneyhas the right, and is charged with the duty to represent the state in all prosecutions Institutedfog the violation of the criminal laws of the state In the corporationcourt, notwithstanding such prosecutionsmay appear to be for violttion of ordinancesof the city covering the same ground. (RmphaSis added throughout) Rowth v. Greer, 90 S.W. 211 (Tex.Civ.App.

f i?"z:W:r$$ T%3$j; Ha I County v. Stewart 91 Tex. 133, 7Jsoi v. City of San Anielo, 94 S.W. 436 (Tex.Civ.App.

1906).
Cities and towns may, within their delegated authority,prescribe offensesby ordinancewhich are not punishableunder State penal statutes. Acres v. City ofHon. F. T. Graham, page 2 (V-1147)

Dallas, 32 Tex. Crlm. 603, 25 S.W. 631 (1894);Zydias AmusementCo. v. City of Houston, 185 S.W. 415 (Tex.Clv. App. 1916, error” ref.).

Prior to 1899, the Texas courtshad sanctioned the prosecutionof cases and th? issuance of process in the name of the municipal corporation rather than in the
name of the State of Texas where violation of an ordiE?e7r ~~;~~dia~ksonv~ sway-n 711 (1898

I Johnson v. Hanscorn, go Tex. 321, 38 e, 92 Tex. 242, 47 S.W. ; Ex pa B 11 Tex. Ct. App. 159 (1881). Under this procedure,It wai held in Jackson v. Swayne, a, that a county attorney could not compel a city recorder to allow him to prosecute complaintsfiled In the name of the city which chargedacts violativeof State statutes. The case did not hold that the State had no interest in enforcingits penal statutes in a corporationcourt; it held merely that the couuty attorney had no authority to prosecutea case in the name of the city.

In view of the constitutional provision that all prosecutionsshall be carried on in the name and by the authority of the State of Texas and that the style of all writs and processes shall be 'The State of Texas" (Art.V, Sec. 12, Tex. Const.) and the above constltutlonal provision that the county attorneys "shallrepresent the State in all cases in the Mstrlct and inferior courts in their respectivecounties,"the conclusionto be drawn from these cases is that the real party in interest in cases involvingviolationsof ordinances only Is the city rather than the State. Otherwise,these prosecutions

would have been required to Abein the name of the State and the county attorneywould have had the right, as well as the duty, to represent the State in such actions.

The CorporationCourt Act of 1899 (Acts 26th Leg., 1899, ch.55, p.40) redefined the jurisdictionof corporationcourts and changed the manner of conducting proceedingsthereinby providing that the ccmplaintshall begin "In the name and by authority of the State of Texas." Art. 867, V.C.CiP. This statutewas construedin Howth v. Greer. supra,where the court said:

*

. . . We think this shows 811 intention
on the part of the Legislaturethat such prosecutionsas may be instituted In the corporationcourt for violation of the criminal laws of the state,which are also made

## 33

Hon. F. T. Graham, page 3 (V-1147)

violationsof ordinancesof the city, notwithstandingsuch prosecutions may purport to be institutedunder the ordinances, shall be regarded as state cases, cases in which the state is not only a nominal,but a real, party;

. . ."

It la our opinion that the Legislaturedid not intend by Article 867, V.C.C.P., to make the State the real party In interest in prosecutionsinvolvingvlolatlons of ordinancesonly, but merely intended to make the State a nominal party. The State being only a nominal party, the county attorney 1s not required to make ah appearance for the State and "represent the State" in such actions.

I?or

Is there anything In Article 869, V.C.C.P., imposinga duty upon the county attorney to prosecute these violations. This article,which Imposes the duty upon the city attorney to prosecutesuch actions,provides that the county attorney %ay, if he so desires, also represent the State in such prosecutions," and thus is merely permissiveinsofar as the county attorney is concerned.

It is our opinion,therefore,that the county attorneyhas no duty to represent the prosecutlon'lncorporation court when the offense Is solely for the violation of an ordinanceand no penal statute of the State Is Involved.

The county attorneyhas no duty to represent the prosecutionin corporation court when the offense is for a violation of a.city ordinance and no penal statute of the State is involved.

APPROVED:

J. C. Davis, Jr. County Affairs Division

Charles D. Mathews First Assistant Yours very truly,

PRICE DANIEL

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