April 11, 

### 1961

Honorable Naomi County Attorney Amarillo, Texas HEUTEY

of Potter County opinionNo, 

### ~~-1036
Re: Whether it is the official duty of the CountyAttorney to representthe 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 opinionhas been received and carefully consideredby 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 complaintwhich was taken by Wayne Bagley, DistrictAttorney, against the manager and employees of charging them under Article 527, showthe State Theatre, ing and exhibiting lewd and lasciviousmotion pictures; the complaintwas filed in Justice of the Peace Court #S with the Justice of the Peace sittingas an examining court in accordancewith Articles 

### 35, 245, etc.,Vernon's Texas Code of Criminal Procedure; the Defendantswere arrested and brought before the Justice of the Peace Court; the examiningtrial was waived; they were committtedby the Justice of the Peace and bond setby the Justfce of the Peace, returnableto the 4'7th District Court of Potter County; at the time the Defendantswere arrestedby a Deputy Sheriff, the motion picture filmswere seizedand placed in a safe in the Sheriff's Departmentwhere they remain in the possession of Sheriff Line in his official capacity;Wayne Bagley, DistrictAttorney, 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 requiredby them because it involveda misdemeanorviolation,but if therewas a criminalviolation, then it shouldbe handled by the County Court because of the interest expressedby 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 suitwas filed in Federal Court by severalmovie 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 infringingany part of the copy-rightedmotion pictures. "(2) That the Defendantsbe required to forthwith deliver unto Plaintiffs, the motion picture illegally seizedwhich were In their possessionand for adjudication as to the question of whether they were lewd, lascivious or depraved.' "The CountyAttorney representedthe Defendants, Sheriff Line and Judge Cliff Roberts. The Court sustainedDefendants'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 CountyAttorney under an official legal

duty to representthese Defendants in this appeal? '[2) If the answer to QuestionNo. 1 is yes, is the CommissionersCourt obligated and authorizedto pay all the expenses in connectionwith this appeal including all expenses incurredby the attorney and Court Costs should the case be reversed on appeal? “(3) If the CountyAttorney is under no legal duty to representthese Defendants,would the Commissioners Court be obligatedand authorizedto 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 DistrictAttorney,was it the duty of the Grand Jury to eitherNo-Bill or present a Misdemeanor Indictment or was proper action taken when they wrote a statement that if there was a violation then it shouldbe sent to the County Court? “(5) If the action of the Grand Jury was not proper, .wouldthe complaint stillbe pending before the Grand Jury until the term of Court to which the bonds were returnable ended?"
In referenceto your Question Number 1: The office of CountyAttorney is establishedby Article V, SectionMrs. Naomi Harney, Page 

### 3 (~~-1.036).

21 of the Texas Constitutionwhich 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 shallbe included in a district in which there shallbe a district attorney, the respectiveduties of district attorneys and county attorneys shall in such countiesbe regulatedby the Legislature." Article 

### 26of the Texas Code of Criminal Procedure dealswith the duties of the CountyAttorney in countieswherein there is a resident DistrictAttorney and in essence gives the CountyAttorney the duty to representthe State in all cases in the County Court in such counties. Although there are some special statuteswhich impose other duties upon the County Attorneyswe have been unable to find any statute or other law which requires the CountyAttorney 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, 

### 89S.W. 1052 (1905) the Supreme Court states that the primary purpose of the District and CountyAttorneys is: ". ~ . to prosecute the pleas of the State in Criminal cases." (Pa 

### 1056)

In reference to your QuestionNumber 

### 3: The County has not been made a party to the suit simplybecause of the fact that some County Officials are being sued. Davis v. Wildenthal, 214 S.W.2d 

### 620(Civ.App. 1951, error refusedn.r.e.). Since the County is not a party to the suit it is neither authorized nor obligated to furnish an attorney for the officialswho are being sued.

In reference to your QuestionNumber 4: Under Article 391, Texas Code of CriminalProcedure, 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 establishedtradition of our jurisprudence. It therefore follows that the action of the Grand Jury in this case was entirelywithin 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 CountyAttorney to represent either the Sheriff or a Justice of the Peace in FederalAppellate Court. Since the suit is a suit against the Sheriff and a Justice of the Peace individually,the CountyMrs. Naomi Harney, Page 4 

### (~~-1036)

is not a party and the County is neither authorized nor obligatedto 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 casewas within the scope of its power and not improper.

Yours very truly,
WILL WILSON Attorney General of Texas

Sam R. Wilson AssistantAttorney General SRW:br
AFTRovED: OPINION CGMMITTEE W. V..Geppert,,Chairman
W. Ray Scruggs J. Arthur Sandlin IolaWilcox
REVIEWED FOR THE ATTOPNEY GENFRAL BY: Morgan Nesbitt