The Attorney General of Texas 

October 9, 1979 

MARK WHITE 

Attorney General 

Honorable Tim Curry 

Criminal District Attorney 

Tarrant County Courthouse 

Fort Worth, Texas 76102 

Opinion No. MW- 6 6 

Re: Authority of a district 

attorney to represent the applicant 

in a proceeding to commit a person 

to a residential care facility under 

the Mentally Retarded Persons Act 

of 1977. 

Dear Mr. Curry: 

You have asked whether the Criminal District Attorney of Tarrant 

County and his assistants have authority to represent the applicant in a 

commitment proceeding brought under section 37 of the Mentally Retarded 

Persons Act of 1977, V.T.C.S. article 5547-300. 

The general statutory authority for the office of the Criminal District 

Attorney of Tarrant County is V.T.C.S. article 1926-42. This statute is 

authorized by article V, section 21 of the Texas Constitution. The statutory 

grant of authority for the Criminal District Attorney of Tarrant County, 

Texas, is stated in the following language: 

Sec. 3. It shall be the duty of said Criminal District 

Attorney or his assistants as herein provided to be in 

attendance upon each term and all sessions of the 

Criminal District of Tarrant County and of all 

sessions and terms of the County Court of Tarrant 

County, Texas held for the transaction of criminal 

business, and to represent the state in all matters 

pending before said courts, and to represent Tarrant 

County in all matters pending before such courts, the 

Commissioners Court of Tarrant County and Justice 

Courts and any other courts where said Tarrant 

County has pending business of any kind or matter of 

concern or interest.. . . 

This statutory duty is consistent with the previously established theory 

in the State of Texas that county governments are creatures of the state 

created to carry out state policies. 

,D. 203 
Honorable Tim Curry - Page TWO (Mw-66) 

The cases in Texas dealing with the authority of district and county attorneys have 

emphasized the joint nature of the state and county interests in that such cases have 

specifically authorized the district and county attorneys to act in matters as officials 

“representing the State.” See, e.g., Garcia v. C. W. L aughlin, 285 S.W.Zd 191 (Tex. 1955); 

State ex reL Downs, et al v. Hamey, 164 S.W.Zd 55 (Tex. Civ. App. - San Antonio 1942, 

writ ref’d w.o.m.); State ex rel. Hancock v. Ennis, 195 S.W.2d 151 (Tex. Civ. App. - San 

Antonio 1946, writ ref’d nr.e.1, in which the court held that the legislature was without 

authority to restrict the powers of the county attorneys or district attorneys and the 

attorney general to represent the state. See also Attorney General Opinion V-503 (1948). 

In view of the fact that the statute creating the office of the Criminal District 

Attorney of Tarrant County, Texas, and the case law of the State of Texas indicate that 

your office may represent the state and county in matters of interest to them, it is 

necessary to determine if the state and Tarrant County have a sufficient interest in the 

commitment of a person under V.T.C.S. article 5547-300 to authorize your office to 

represent an applicant in such a commitment. In most instances the moving party is the 

superintendent of the residential care facility or is another state official, and in such 

cases we believe it is clear that the state has an interest in the matter. In instances in 

which a state official is not the moving party, the state may also have an interest, but irl 

such cases the determinaticn will depend on the specific facts. 

Article 5547-300, viewed in its entirety, is an act which sets forth the interest of 

the state, in protecting and safeguarding the rights of the mentally retarded persons and 

the public at large. Thus representing the state’s interest in appropriate commitment 

proceedings is a responsibility of the office of the criminal district attorney. 

SUMMARY 

The Criminal District Attorney of Tarrant County and his 

assistants are authorized to represent the applicant in a proceeding 

to commit a person to a residential care facility under the Mentally 

Retarded Persons Act of 1977. 

MARK WHITE 

Attorney General of Texas 

JOHN W. PAINTER, JR. 

First Assistant Attorney General 

TED L. HARTLEY 

Executive Assistant Attorney General 

Prepared by Martha Allen 

Assistant Attorney General 

P. 204 
Honorable Tim Curry - Page Three (m-66) 

APPROVED: 

OPINION COMMITTEE 

C. Robert Heath, Chairman 

Martha Allen 

David B. Brooks 

Walter Davis 

Susan Garrison 

William G Reid 

Bruce Y oungblood 

p. 205