OFJ=KlE OF THE ATTORNEY GENERAL OF TEXAS 

AUSTIN 

-Gnmw 

-QR- 

\ 

Honorable 0. A. Falter@ 

OOUty AttOrnaT 

6u1 Saba County 

San Saba, Toxar 

&I, aatIol&iting that ha w0ua be ~ao4mrfrfl. 

on that third eramlnatlon, maar thti raoa aaa 

*au aomiaatod over the prerent in0umbant. 

Thlr week brlagr the infornmtloa that he 

railed again for the third time.; I preeutm 

he will take ~aaothsr euLmfaatIo,a aad~, Ii ha 

doea I awwme that the raeult wlil ba knowa 

beram the Novacabal: elrotlon. 
I 

. 

Honorable 0. A. Walters, ?age 2 

TJnlaea prohibited, eltbsr through a 

mnaamus or Indunotlon, one oriboth prooesdtags, his name will b0 oortifled by the oomaltter and his name will go up oa the tlokot 

at the general l leotIon.w 

On the basis of thsse fasts yes hesire to~knowl 

(1) What steps may be taken to eatabllsh 

the lnellglblllty of the 04n4laate for the orii00 or county attorney; 

(2) If steps may bo taken, rho Is author,- 

. Iesd to institute the aroessary prooerdiags~ < 

(3) 'Other questions based upon the assumptlon that timely stdps will not bo takea. 

U Opinion No. 0+%?05 this department held that 

u&or Artlolss 332 ana 2927 OS the Rev'lssd Civil Statutes, 

'1925, one who does not hire his license to praotloe law aad 

'will not have It at the time of thg Suly prlcmry oleatloa 

Is not entitled to have his name oertitid ae a oanalaate 

for the offLoe oi oounty attorney at suoh eleotion. 

Artlalss 2927, 2928 6.tta 2989 of Veraon~6 Annotatoa 

01~11 Statutes, rep&: as r0110w8: 

*Art. 29117. 

To person shall be ellglblr to any Stats, 

oounty, pretolnot or munlalpal 0PiIoe In this 

Stata unless ha shall be eligible to ho14 ofiiae under the Coastltutloa of this Ytate, and 

unless he shall her0 r6SIdsa In this Stats for 

the pQrIod or tw6lve months and sir months in 

the oounty, prealnot, or aunI0Ipellty, In whIoh 

he orfers himself as a oanblbate, aoxt preoodIng any gea4r41 or speolal eleatloa, and shall 

hare beon 1111 aotual bona fide oltlsen of said 

oounty, prsolnot, or munIolp4lIty .for a0re than 

sir months. No person Ineligible to hold oftloe 

shall ever have his name placed upon the ballot 

at any general or spealal eleotlon, or at 4ny 

prlmclry election where oandldatbs are soleoted 

under prIm4ry eleotlon laws of this State; and 

ao such ineligible candidate 8hal.l ever be VOtea 

upon, aor hnre votes oountad for him, at eny 

suoh general, 8p00141, or primary el0OtIOn. 
Eonorable 0. A. Walters, Page 3 

“Art. ZQE%. \ 

“Neither the Seoretaey of State, nor any 

oounty judge or this State, nor any other authority authoria4a to issue orrtItloat48, shall 

Is8u4 any o4rtlrIoat4s or eleatlon or appolntakent to any person 4l40t0a or-appointed to any 

oriios la this State, who la not eligible to 

hold such 0ff~o0 uadt3r tha CoaetItutIon 0r this 

State and under the above artlale; and the nams 

or ao InslIgIble person, under the Constitution 

ma laws or thle State, shall be oertirira by 

any party, ooamittee, or any authority authorha to have.the naa0e Of 04ndia4t0s placed 

upon the primary ballots at any primary eleatlon In this Statei and the name or ao Inellglble aanalaate under the CoartItutIon and laws 

or this Stst.4 shall be plaO@d upon the ballot 

of any general or 8p40141 eleotloa by any authority whoa@ duty. It -Is to plaoo names of 

eandlaateo ,updn olrlolal ballots, 

“Art. 2929. 

“The dI8trIOt court shall have authority 

to Ieeue writs of Injunction and all other 

neaessary prooese at the suit oi any Iaterestad party, or of any voter, to enforod the pmvisions or the above two artloles and to prbteot.thereunaer the rights or all part.108 and 

the public; for suoh purpose, jurisaiotIon 

and authority Is ooarerrra-upon all dlstrlot 

oourts or this State and all oases filed hereunder ahsll hare rimi right 0r pr000amoe 

upon trial and appeal." 

Under the Artiolee of the RsrIsed Civil Statutes, 

above sat rorth, the Oandldate mentlonrd In your letter Ie 

:not entitled to have hla naae go on the ballot in ths general eleotloa In lOor@mbsr na the D4aooratIo aomlaee for the 

ofrice 0r county attorney. He should not be voted upon at 

that time as suoh nominee, and Wider Article 2929 an ln&K~o- 

,~tIon my iaeus rros the dlstrlot court to prevent his nam 

being plaaea berore the YOters at the general 614OtIOn. 

iet us point out here for your guldanoe that 

awhile mtiole 8E53, Vsraoa~s .4motiit4a 01~11 8tatute8, pro- 

. 
~-, Honorable 0. A. salters, Page 4 

,vides the remedy of an Infornmtloa In the natul 

quo warrato to be 4Ireoted against qae uulawft 

truaiag upon or assuming the atah8 or ea 0rric 

,whIoh he IS aot entitled, that rmaedy IS not a1 

sat11 the oae against whom the writ Is to ,be d: 

hmm,aotually intruded Into ana unlawfully h0iat 

As stated in Callaghan v. Tqbln, 40 T. 1 

90 s: w. (ea) ss, writ refused, 

*There Is nothing In that statute 

that would prbteot the Inauaibent or an 

ofrIo rrom one who thrratenea to remove 

him iron4 the 84q and to take possrssloa 

or the property appertaining to the ofri04. That hatut giVS8 a remedy agalnr 

a person who ha& slr@aay usurped, Intruao 

Into, and unlawfully holds an 0rrf00, as 

the very aesIgnatIon or the prooesdlag 

olearly ~WlIe8.~ It Im R, procieeblng by 

Quo warranto, to be w0a ~agalast oae in 

po8eaesIoa or an orrio*, and 04anot be 

used by an lnouabent to proteot hla frois 

attenwtea usurpation or his 0rti04.r 

see also WIllIsms v. Cast~eman, ii8 

817 9. w. SW. 

.You hare been advised that an injuno 

sue to prereat the nam. of an IaeligIble oandl 

appearing upon the ballot at the general elrot 

uaber as the Demooratlo nomIne for the ofrloe 

oosoera ours.lves with the qu.stIon of who is 

$0 institute the aroessary prooredIngs. 

Although Artlole ii989 provides la ha 

that *any Interestea party, or any tot*PlaaT 

Isjunotloa there provided for, the 0880 or All 

deofaed by the Comlssian of Appeals Is 19s 

0 9. if. (aa) 751, oowtrueu the st4tut4 airr0r 

,/- 

In that OaBe one Braly, the Dl4IntIf 

a third man were oandldates ror the orfIc# of 

torney. At the .l.otIon It appeared that Bml 

the higher& number or votes 048% and the plair 

ssoopd largrst auaber. Braly hosevor, was Ix 

arr Art1010 8987 to be 4 04adhate for th. orI 

trlot attorney, aud the pl4lntIrt, the l eoosd 
Honorable 0. A. Walton, Page b 

lnstttutod the neoeseary etepe, as a totor, to proouro 

an InJuuotion under Artfole gQgQ\ to prev4nt the name of 

Bralp from appearing upon thr ballot at the general eleotion and to prevent hi8 oertiiioetion a8 the Demooratio 

ncdlwe ior the offioe of ~dietriot attorney. The Court 

stated: 

&The petition thorrrore rail6 to thor 

that tha plaintiff hue a logal right, distinot Srom the gwwral pub110 of whioh he 

la a member, whioh will be aHooted by the 

osrtifioation of Braly a8 the Dsnmretir 

nomlneo ior diatriat attornrg, or by the 

printing of his naum, aa euoh, on the of - 

fioial ballot at the goneral l leotion in 

Rovembrber . The plaintlrr, a8 an indirldual,, 

is not rhown to have d juatiolablm interset 

in the aatter. fia thererore io not entitled 

to llvaintain thie euit unless authorized to 

40 80 under that prori8loa of artiole 8889 

o$ the 8tatut.m now to .be noticed. A portlon of that article provider in erreot that 

the diotriot oourt &all hare authority to 

ioeue writs ot injunotion at the suit of ‘any 

voter,’ to restrain ths plsoing or the name 

of an ineligible oandldate upon the offioial 

b&lot at genafal or a~4oial l leotion. 

be th6 true import-of the tatatutory proriaioa 

just nferred to, that provision oannot hara 

offrot to lnveet the plaintiff, simply baoause he is a votar, with the authority to 

;lalntain this wit. The Conatitution does 

not pertit this ‘to be dons. 

the oaee jus8 oited t&at: 

It is 4,+a in 

‘, 

**It is nroeaearp for the et&e to be 

4 party when the action ie for. the benerit 

0r the publio at large, though growing out 
/I korable G. A. i’taltera, Page 6 

of 4 party prlmery eleotion. The etatute 

oannot oonfer a right upoa private inaimuale to hot for all where it Is, shown they 

have no interest airrerent rrm irll othera. 

“The Oonetltution provide8 that the 

oounty attorney shall represent the atate 

Fa all ChS40 In the ai8trLot CQurt. By 

oth4r oonrtitutional provisioa4 the L4girluture is authorized to impose that duty 

on the httornep General, and, in presoribed 

oiroumathnoee, upon the dietriot attorney. 

Sse State Constitution, art 8, I gll art. 

4, a ee. These oouetitutionul provisione 

mark the liznits of leglnlative authority 

to prescribe who shall reprileent the etate 

4nd oontrol Its lntereat6 In a lawruft in 

the district court. The Leg1 slature ie 

isplledly restrained frown oonlerring euoh 

duty and reeponsfbillty on the individual 

oitizen. Maud '1. Terrell, 109 Tex. 97, 200 

P 5. w. 378. Then plaintiff therefore hae no 

authority to naintain thie suit, ae a voter, 

independently or a public off ioial who, ie 

properly clothed with that authority.” 

(underscoring ours) 

Ke my therefore oonolude that any cult provided 

for by Article E929 mat be proneouted by, the State. 

Ssotion 21 of hrtiole 5 Of the Conetitution of 

Texas, reads, in part, as follower 

“, * * . The county, attorney shall 

represent the State in all. 0484n in the 

Uietrlot and lnrerlor courts in their roepeotiv4 ooilntles~ * * ‘.” 

In Uaud, County Tvx Colleotor, v. Terrell, State 

Comptroll4r, LO9 Tsx. 07, 200 S. W. 375, the court stated; 

“. .t 4. Thlit instrument, by Section 

21 or Article 6, lo&gee with the county 

ettorneye the duty of reyreeenting the 

btate in all 0~544 in the dietriot and 

infsrlor courts, with the right in the 

i* Leglsluture to regulate by law the mepeo- 
.P Honorable G. A. Xalters. Page 7 

tlve duties of aiatriot aad oountp attorneys 

wh4re a oounty la inoluded in a’aietrlot having 

a dlstriot attorn4y; and by deotion 22 of Artlole 4 that tidy 44 to errits and pleas in the 

Supreas Court Is ooufided to the Attorney uenoral. * l *** 

639 

see al80 5tapls’s v. ljtat.4, 13.2 Tax. 81, 248 S. W, 

; Diokeon v. mrloklana, ll4 Tax. 176, 2aa a. 1. 1012. 

It ia the opinion of this department and youTax- .,, 

r~epeotfully aayiisra that you in your ofiioial oapaoity es 

oouuty attorney ars authorized to represent the Stats in a 

euit for en lnjunotion under rirtiole 2929 or the Revised 

Civil 8tatute8, 1926, to prevent the nams of an inelfglble 

oandidate for ths office of county attorney in your Oountg 

Ron being pla0ed upon the ballot, Voted upon, or 0@rtiii@d 

as the Demoaratlo nominee for the oifioe at the goner41 eleotlon in liovember. 

IEaoh of ths other puestioue y’ou have presented 

P iqr our oonsideration are based upon hypothetloal situations 

which may never orisc, and in view of the foregolag advieing 

that the rsaedy of injunotfon is 4vaUnble now, their auswer 

Is rendered unn00484ary. 

Very ‘truly yours 

dPlWRNM GWPX#L.OB TXJIS 

IDS;RS