THEA OBNEY GENERAL 

OP%?EXAS 

wl[LL WILSON 

ATTORNEY OWERAL 

JUIY 25, 1962. 

Honorable Wm. A. Nobles 

County Attorney 

Wise County 

Decatur, Texas 

Opinion No. W-1398 

Re: Whether a City Councilman is disqualified from 

holding such office by 

virtue of being an officer of the depository 

bank where the city funds 

are deposited, and, if so, 

whether the County Attorney has a duty to instiDear Mr. Nobles: tute removal proceedings. 

You have requested an opinion of this office on the two 

following questions: 

1. "Is a person holding the office of City 

Councilman in a city incorporated under the general 

laws of The State of Texas, disqualified from 

holding such office by virtue of being an officer and director of the bank in which the funds 

of such city are deposited?" 

2. "Is it the duty of an elected County 

Attorney or District Attorney to institute a 

suit for removal of an official of the governing 

body of a city incorporated under the general 

laws of The State of Texas?" 

We think your second question is answered by Articles 

5992 and 5994, V.C.S. Article 5992 provides as follows: 

"When written sworn complaint charging any 

alderman with any act or omission which may be 

cause for his removal shall be presented to the 

mayor, he shall file the same and cause the alderman so charged to be served with a copy of such 

complaint, and shall set a day for trial of the 

case, and notify the alderman so charged and the 

other aldermen of such town or city to appear on 

such day. The mayor and aldermen of such town 

or city, except the alderman against whom complaint is made, shall constitute a court to 

try and determine the case." 
Hon. Wm. A. Nobles, page 2 (WW-1398) 

Article 5994, V.C.S., sets out the procedure for the above described trial. 

Your.letter indicates that the city in question Is incorporated under the general laws of this State. 

It is our opinion that the above two Articles set out 

the proper method 

should be removed 

therefor. 

We are not 

as follows: 

"When 

of, (1) determining whether a councilman 

for the stated cause, and (2) the procedure 

unmindful of Article 339, V.C.S., which reads 

it shall come to the knowledge of any 

district or county attorney that any officer in 

his district or county entrusted with the collection or safe keeping of any public funds is 

in any manner whatsoever neglecting or abusing 

the trust confided in him, or in any way failing 

to discharge his duties under the law, he shall 

institute such proceedings as are necessary to 

compel the performance of such duties by such 

officer and to preserve and protect the public 

interest." 

Articles 5992 and 5994, V.C.S., and the above quoted 

Article 339, V.C.S., deal with the same general subject matter, 

namely, removal of officers. Articles 5992 and 5994, V.C.S., 

deal specifically with mayors and aldermen, whereas Article 

339, V.C.S., is a general statute. The law is well settled 

that in such case a specific act will prevail over a general 

act. The Texas Supreme Court, in Townsend v. Terrel, 118 Tex. 

463, 16 S.W.2d 1063 (1929), stated: 

"This rule of construction has found frequent and apt illustration where one of the 

supposedly conflicting statutes was general in 

its terms and the other specific. In such a 

case it is universally held that the specific 

statute more clearly evidences the intention 

of the Legislature than the general one, and 

therefore, that will control. In such a case, 

both statutes are permitted to stand -- the 

general one applicable to all cases except 

the particular one embraced in the specific 

statute." 
Hon. Wm. A. Nobles, page 3 (w-1398) 

ton 63 Tex. 437 (1885); 

2 98 S.W. 542 (1905); 

.k.2d 344 (Civ.App., 1943, 

OS River Harbor Nav.Dist., 42 S.W.2d 

Houston, 

You are therefore advised that it is our opinion that 

it is not the duty of a county attorney or district attorney 

to institute a suit for removal of an official of the governing 

body of a city incorporated under the general laws of the State 

of Texas. 

Since you have advised us in connection with your questions that the penal code has not been violated and in view 

of our answer to your second question, we find that we are 

prohibited from answering your first question by virtue of 

Article 4399, Vernon's Civil Statutes, as the matter involved 

does not pertain to your official duties. 

SUMMARY 

It is not the duty of an elected 

County attorney or District attorney 

to institute a suit for removal of an 

official of the governing body of a 

city incorporated under the general 

laws of the State of Texas. 

Yours very truly, 

WILL WILSON 

Attornev General of Texas 

Assistant 

EMcV/mw 

APPROVED: 

OPINION COMMITTEE 

W. V. Geppert, Chairman 

Riley Eugene Fletcher 

Iola Wilcox 

Jerry Roberts 

REVIEWED FOR THE ATTORNEY GENERAL 

By: Leonard Passmore