### THE ASTBRNEY GENERAL OF-XAS CRAWPOlzD c. MARTIN AUSTIN.TEXAR 78711 July26,1972 Honorable Joe Resweber County Attorney Harris County Courthouse Houston, Texas 77002 ATTN: Jerry B. Schank Assistant County Attorney Dear Sir: Opinion No.M- 1180 Re:Authority of County Attorney ofHarris County, Texas, to investigate election frauds.

Your request for an opinion on the above subject matter asks the following question:

"Isthe County Attorney ofHarris County authorized to investigate allegations of election frauds presented tohim by written affidavits of two ormore reputable citizens under subsection 1ofArticle 9.02 of the Election Code?" Article 9.02 of the Texas Election Code requires the district and county attorneys, in the case of elections involving less than two counties, to investigate election frauds presented to themby written affidavits of two ormore reputable citizens. It isheld inShenperd v.Alaniz, 303 S.W.2d 846 (Tex.Civ. App. 1957, nowrit), that it is the principal duty of the district and county attorneys to investigate and prosecute violations of all criminal laws, including election laws, and these duties cannot be taken away from themby the Legislature. See also Garcia v. Laughlin, 155 Tex. 261, 285 S.W.Zd 191 (1955).

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It is theprimary duty of the District Attorney of Harris County to represent the State in criminal casespending in the district and inferior courts ofHarris County, Texas. Article 326k-26, Vernon's Civil Statutes. It is theprimary duty of the CountyAttorney of Harris County to represent the State, Harris County, and the officials of such county inall civil matters pending before the courts of Harris County, and any other courts where the State of Texas, Harris County, and the officials of such county have matters pending. Article 331h,Vernon's Civil Statutes. Since the investigation of election frauds and the prosecution for the **same** are criminal matters, theprimary duty to make such investigations falls on the **District** Attorney of Harris County rather than the County Attorney ofHarris County. This does not, however, divest the County Attorney ofHarris County ofhis constitutional power under theprovisions ofArticle V, Section 21 of the Constitution ofTexas. State v.Moore. 57Tex. 307 (1882);Harris County v. Stewart, 91Tex. 146, 41 S.W. 650 (1897): **State** ex rel. Hancock v. Ennis, 195 S.W.2d 151 (Tex.Civ. App. 1946, error ref. n-r-e.); **State** ex rel. Downs v. Harney, 164 S.W.2d 55 (Tex.Civ.App. 1942, error ref.): Shepperd v.Alaniz, supra: Garcia v. Lauqhlin, supra. Inview of the foregoing, you are advised that under the provisions ofArticle V, Section 21of the Constitution of Texas and the provisions ofArticle 9.02 of the Texas Election Code, the County Attorney ofHarris County isauthorized to investigate election frauds. However, this investigation is the primary duty of the District Attorney of Harris County rather than the County Attorney of Harris County. Articles 326k-26 and 331h,Vernon's Civil Statutes.

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. Honorable Joe Resweber, page 3 (M-1180)

SUMMARY The County Attorney of Harris County is authorized to investigate election frauds under the provisions ofArticle V, Section 21, Texas Constitution, andArticle 9.02, Texas Election Code. However, this investigation is the primary duty of the District Attorney ofHarris County rather than the CountyAttorney ofHarris County. Articles 326k-26 and 331h.Vernon's Civil Statutes. truly yours,

Prepared by John Reeves Assistant Attorney General APPROVED: OPINION COMMITTEE Kerns Taylor, Chairman W. E,Allen, Co-Chairman Melvin Corley Bob Lattimore Jerry Roberts Max Hamilton SAMUEL D,MCDANIEL Staff Legal Assistant ALFRED WALKER Executive Assistant NOLA WHITE FirstAssistant

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