April 11, 1961 

Honorable Naomi 

County Attorney 

Amarillo, Texas 

HEUTEY 

of Potter County 

opinion No, ~~-1036 

Re: Whether it is the official 

duty of the County Attorney 

to represent the Sheriff and 

a Justice of the Peace in a 

Civil Suit in Federal Court 

under the facts stated and 

Dear Mrs. Harney: related questions 

Your recent request for opinion has been received and carefully considered by this Department. We quote from your request as follows: 

"Jim Line, who was sworn in as Sheriff of Potter County 

on January 1, 1961, on November 6, 1960, as a citizen, 

filed a complaint which was taken by Wayne Bagley, 

District Attorney, against the manager and employees of 

the State Theatre, charging them under Article 527, showing and exhibiting lewd and lascivious motion pictures; 

the complaint was filed in Justice of the Peace Court 

#S with the Justice of the Peace sitting as an examining 

court in accordance with Articles 35, 245, etc., Vernon's 

Texas Code of Criminal Procedure; the Defendants were 

arrested and brought before the Justice of the Peace Court; 

the examining trial was waived; they were committted by the 

Justice of the Peace and bond set by the Justfce of the 

Peace, returnable to the 4'7th District Court of Potter 

County; at the time the Defendants were arrested by a 

Deputy Sheriff, the motion picture films were seized and 

placed in a safe in the Sheriff's Department where they 

remain in the possession of Sheriff Line in his official 

capacity; Wayne Bagley, District Attorney, presented the 

case to the Grand Jury; the Grand Jury did not No-Bill or 

present a True-Bill; they wrote a memorandum stating that 

no action was required by them because it involved a misdemeanor violation, but if there was a criminal violation, 

then it should be handled by the County Court because of 

the interest expressed by the public in regard to better 

movies; no further action has been taken in regard to this 

matter in any of the State courts. On January 13, 1961, a 

suit was filed in Federal Court by several movie companies 

against Sheriff Jim Lfne and Justice of the Peace Cliff 

Roberts; they ask for the following relief: 
Mrs. Naomi Harney, Page 2 (~~-1036) 

"(1) That the Defendants, their agents, etc. be enjoined during the pendency of the action and permanently 

from infringing any part of the copy-righted motion 

pictures. 

"(2) That the Defendants be required to forthwith 

deliver unto Plaintiffs, the motion picture illegally 

seized which were In their possession and for adjudication as to the question of whether they were lewd, 

lascivious or depraved.' 

"The County Attorney represented the Defendants, Sheriff 

Line and Judge Cliff Roberts. The Court sustained Defendants' Motion to Dismiss for lack of jurisdiction. 

The Plaintiffs are appealing from this order to the 

Fifth Circuit Court in New Orleans. 

QUESTIONS: 

"(1) Is the County Attorney under an official legal 

duty to represent these Defendants in this appeal? 

'[2) If the answer to Question No. 1 is yes, is the 

Commissioners Court obligated and authorized to pay 

all the expenses in connection with this appeal including all expenses incurred by the attorney and 

Court Costs should the case be reversed on appeal? 

“(3) If the County Attorney is under no legal duty to 

represent these Defendants, would the Commissioners 

Court be obligated and authorized to appoint an attorney, paying his fees and all costs in connection 

with this appeal? 

"(4) The case having been presented to the Grand Jury 

by the District Attorney, was it the duty of the Grand 

Jury to either No-Bill or present a Misdemeanor Indictment or was proper action taken when they wrote a statement that if there was a violation then it should be sent 

to the County Court? 

“(5) If the action of the Grand Jury was not proper, 

.would the complaint still be pending before the Grand 

Jury until the term of Court to which the bonds were 

returnable ended?" 

In reference to your Question Number 1: 

The office of County Attorney is established by Article V, Section 
Mrs. Naomi Harney, Page 3 (~~-1.036). 

21 of the Texas Constitution which provides in part as follows: 

"The County Attorney shall represent the State in all 

cases in the District and inferior Courts in their respective counties; but if any county shall be included 

in a district in which there shall be a district attorney, the respective duties of district attorneys and 

county attorneys shall in such counties be regulated by 

the Legislature." 

Article 26 of the Texas Code of Criminal Procedure deals with the 

duties of the County Attorney in counties wherein there is a resident 

District Attorney and in essence gives the County Attorney the duty to 

represent the State in all cases in the County Court in such counties. 

Although there are some special statutes which impose other duties upon 

the County Attorneys we have been unable to find any statute or other law 

which requires the County Attorney to represent the county or any official 

thereof upon the appeal of a case* In fact in the case of Brady v. Brooks, 

99 Tex. 379, 89 S.W. 1052 (1905) the Supreme Court states that the primary 

purpose of the District and County Attorneys is: ". ~ . to prosecute the 

pleas of the State in Criminal cases." (Pa 1056) 

In reference to your Question Number 3: 

The County has not been made a party to the suit simply because 

of the fact that some County Officials are being sued. Davis v. Wildenthal, 

214 S.W.2d 620 (Civ. App. 1951, error refused n.r.e.). Since the County is 

not a party to the suit it is neither authorized nor obligated to furnish 

an attorney for the officials who are being sued. 

In reference to your Question Number 4: 

Under Article 391, Texas Code of Criminal Procedure, a Grand Jury 

may return an indictment if it, in its discretion, sees fit to do so. That 

a Grand Jury may also make recommendations is a well established tradition 

of our jurisprudence. It therefore follows that the action of the Grand 

Jury in this case was entirely within their power and was proper. 

Since the action of the Grand Jury was proper, your last question, 

by its terms, need not be answered. 

SUMMARY 

It is not the duty of the County Attorney to 

represent either the Sheriff or a Justice of 

the Peace in Federal Appellate Court. Since 

the suit is a suit against the Sheriff and a 

Justice of the Peace individually, the County 
Mrs. Naomi Harney, Page 4 (~~-1036) 

is not a party and the County is neither authorized nor obligated to furnish an attorney 

for those two officials. The action of the 

Grand Jury in refusing to return an indictment 

and writing a memorandum about the case was 

within the scope of its power and not improper. 

Yours very truly, 

WILL WILSON 

Attorney General of Texas 

Sam R. Wilson 

Assistant Attorney General 

SRW:br 

AFTRovED: 

OPINION CGMMITTEE 

W. V.. Geppert,,Chairman 

W. Ray Scruggs 

J. Arthur Sandlin 

Iola Wilcox 

REVIEWED FOR THE ATTOPNEY GENFRAL 

BY: Morgan Nesbitt