GENERAL THEA OBNEY

OP%?EXAS

wl[LL WILSON ATTORNEY OWERAL JUIY 25, 1962.

Honorable Wm. A. Nobles CountyAttorney Wise County Decatur, Texas OpinionNo. W-1398
Re: Whether a City Councilman is disqualified from holding such officeby virtue of being an officer of the depository bank where the city funds are deposited,and, if so, whether the CountyAttorney has a duty to instiDear Mr. Nobles: tute removal proceedings.

You have requestedan opinion of this office on the two followingquestions:

1. "Is a personholding the office of City Councilman in a city incorporatedunder the general laws of The State of Texas, disqualified from holding such officeby 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 DistrictAttorney to institutea suit for removal of an official of the governing body of a city incorporatedunder the general laws of The State of Texas?"
We think your second question is answeredby Articles 5992 and 5994,V.C.S. Article 5992 providesas follows:

"Whenwritten sworn complaint chargingany alderman with any act or omission whichmay be cause for his removal shallbe presented to the mayor, he shall file the same and cause the alderman so charged to be servedwith 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 constitutea 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 indicatesthat the city in question Is incorporatedunder the general laws of this State.

It is our opinion that the above two Articles set out the propermethod shouldbe removed therefor.
We are not as follows: "When of, (1)determiningwhether 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 countyattorney that any officer in his district or county entrustedwith the collection or safe keeping of any public funds is in any manner whatsoeverneglecting or abusing the trust confided inhim, or in any way failing to dischargehis duties under the law, he shall institute suchproceedingsas are necessary to compel the performance of such duties by such officerand to preserveand 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 subjectmatter, namely, removal of officers. Articles 5992 and 5994,V.C.S., deal specificallywith mayors and aldermen, whereas Article 339, V.C.S., is a general statute. The law is well settled that in such case a specificact will prevail over a general act. The Texas Supreme Court, in Townsendv. Terrel, 118 Tex. 463, 16 S.W.2d 1063 (1929), stated:

"This rule of constructionhas found frequent and apt illustrationwhere one of the supposedly conflicting statuteswas general in its terms and the other specific. In such a case it is universallyheld that the specific statutemore 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 HarborNav.Dist., 42 S.W.2d Houston,

You are thereforeadvised that it is our opinion that it isnot the duty of a countyattorney or district attorney to institutea suit for removal of an official of the governing body of a city incorporatedunder the general laws of the State of Texas.

Sinceyou have advised us in connectionwith your questions that the penal codehas not been violated and in view of our answer to your second question, we find that we are prohibited from answeringyour first questionby 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 Countyattorney or District attorney to institutea suit for removal of an official of the governingbody of a city incorporatedunder the general laws of the State of Texas.
Yours very truly,
WILL WILSON AttornevGeneral of Texas

Assistant EMcV/mw APPROVED: OPINION COMMITTEE W. V. Geppert, Chairman Riley Eugene Fletcher IolaWilcox Jerry Roberts REVIEWED FOR THE ATTORNEY GENERAL By: Leonard Passmore