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 

violations of municlpal ordinances in co% 

Dear Mr. Graham: poratlon court. 

Your request for an opinion presents the question of the duty of the county attorney in a county where 

there is no resident criminal district attorney to represent the prosecution in corporation court, 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, Constitution of Texas, provides in part: 

"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 district attorneys and county attorneys 

shall in such counties be regulated by the 

Legislature." 

Sy'the express' terms of the above constitutlonal provision and under the decisions of the courts of this 

State, %he county attorney has the right, and is charged 

with the duty to represent the state in all prosecutions 

Instituted fog the violation of the criminal laws of the 

state In the corporation court, notwithstanding such prosecutions may appear to be for violttion of ordinances of 

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 offenses by ordinance which are not 

punishable under State penal statutes. Acres v. City of 
Hon. F. T. Graham, page 2 (V-1147) 

Dallas, 32 Tex. Crlm. 603, 25 S.W. 631 (1894); Zydias 

Amusement Co. v. City of Houston, 185 S.W. 415 (Tex.Clv. 

App. 1916, error” ref.). 

Prior to 1899, the Texas courts had sanctioned 

the prosecution of 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 complaints filed In 

the name of the city which charged acts violative of 

State statutes. The case did not hold that the State 

had no interest in enforcing its penal statutes in a 

corporation court; it held merely that the couuty attorney had no authority to prosecute a case in the name of 

the city. 

In view of the constitutional provision that 

all prosecutions shall 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 "shall represent the State in all cases in the Mstrlct and inferior 

courts in their respective counties," the conclusion to 

be drawn from these cases is that the real party in interest in cases involving violations of ordinances only 

Is the city rather than the State. Otherwise, these 

prosecutions would have been required to Abe in the name 

of the State and the county attorney would have had the 

right, as well as the duty, to represent the State in 

such actions. 

The Corporation Court Act of 1899 (Acts 26th 

Leg., 1899, ch.55, p.40) redefined the jurisdiction of 

corporation courts and changed the manner of conducting 

proceedings therein by providing that the ccmplaint shall 

begin "In the name and by authority of the State of Texas." Art. 867, V.C.CiP. This statute was construed in 

Howth v. Greer. supra, where the court said: 

* . . . We think this shows 811 intention 

on the part of the Legislature that such 

prosecutions as may be instituted In the 

corporation court for violation of the criminal laws of the state, which are also made 
33 

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

violations of ordinances of the city, notwithstanding such prosecutions may purport 

to be instituted under 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 Legislature did not 

intend by Article 867, V.C.C.P., to make the State the 

real party In interest in prosecutions involving vlolatlons of ordinances only, 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., 

imposing a duty upon the county attorney to prosecute 

these violations. This article, which Imposes the duty 

upon the city attorney to prosecute such actions, provides that the county attorney %ay, if he so desires, 

also represent the State in such prosecutions," and thus 

is merely permissive insofar as the county attorney is 

concerned. 

It is our opinion, therefore, that the county 

attorney has no duty to represent the prosecutlon'ln corporation court when the offense Is solely for the violation of an ordinance and no penal statute of the State Is 

Involved. 

The county attorney has no duty to 

represent the prosecution in 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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