THEA ORNEY GENERAL 

### OFTEXAS

AUSTIN ~~.TEXAS

June 7, 1962

Mr. Guy E. Jones Opinion No.WW-1353 CountyAttorney Bowie County Re: May a CityAttorney legally repreTexarkana, Texas sent the State in the prosecution of criminal cases in the District Court involvingviolation of the penal laws of Texas on appeal from CorporationCourt of the City and Dear Mr. Jones: related questions.

You have requested an opinion from this office upon the questions of:

"1. May a CityAttorney, or his assistants, legally represent the State in the prosecution in the District Court of criminal cases involving violation of the penal laws of Texas on appeal from Corporation Court of the City? "2. May a CityAttorney, or his assistants legally represent the State in the prosecution in the District Court of criminal cases involving violation of city ordinanceson appeal from Corporation Court of the City? "3

. If the answer to either of the above questions is "yes", is it necessary that the County Attorney be present in the District Court at the trial of such cases on appeal?"
Inyour letter you also stated that the CityAttorney and CountyAttorney, as well as the District Judge,had consented to an arrangementwhereby the CityAttorney or his assistantswould.participate in the appeals from the CorporationCourt of the City of Texarkana.

Appeals from the Corporation Court of the City of Texarkana would be to the District Court of Bowie County,as the provisions of Article 1970-306,Vernon's Civil Statutes, conferupon the District Court certain criminal jurisdictionexercised by the County Court of Bowie County prior to the enactment of Article 1970-306.Mr. Guy E. Jones, page 2 (WW-1353)

While in Attorney General's Opinion No. WW-1302 (1962) this, officeheld that the primary responsibilityand duty of prosecuting cases appealed from a Corporation Court to a County Court involving penal laws of this State rests upon the County Attorney, such opinion did not deal with the issue of whether the CityAttorney and his assistantsmay participate in the further prosecution of cases appealed from CorporationCourt.

In Burkhardv. The State, 18 Tex.Crim. 599 (1885), the court held that:

"There is no law of this State prohibiting counsel other than the district and countyattorney from appearing and prosecutinga cause in behalf of the State. It has been the practice always in this State to permit attorneys employed by private prosecutors to assist the district or county attorney in the prosecutionof a case. This practicehas been known to all the Legislatures that have assembled in the State, and if it be an illegal or improperpractice,as is contended by counsel for defendant, it is indeed strange that it has been so long and so universally toleratedby the law-making power and sanctionedby the courts. It seems that, in some States, this practice is now allowed. But in most of the States it is sanctioned. It is, however, the duty of the district or county attorney to reserve to himself the direction of the case. This he shouldnever surrender to assistant counsel.

. . .I1
See also, 15-A Tex.Jur. 502, District and Prosecuting Attorneys, Sec. 16.

In Philliosv. State, 263 S.W.2d 159 (Tex.Crim.1953), the court held that:

"Counsel other than the district or county attorneymay appear and prosecute or assist in the prosecution of a cause in behalf of the state." and in Loshe v. State, 272 S.W.2d 517 (Tex.Crim.195&), the court further held that:

"He first contends that the trial court erred in allowing Honorable Norman Barr of the SanAngelo bar to participate in the trial as a specialprosecutor. This Courthas recentlyheld against appellant's contentionin Phillipsv. State, Tex.Cr.App., 263 S.W.2d 159."c

Mr. Guy E. Jones, page 

### 3 mw-1353)

The heretofore cited cases are ample authorityfor the position that an attorney, other than the District or County Attorney or their assistants,may participate in or represent the State in criminal cases before the County and District Courts. The his the the fact that such attorneymight be a CityAttorney or one assistantswould in no way act as a prohibitionin view case of Shooue,

v. Courtheld: State,, 

### 38 S.W.2d 

### 793 (Tex.Crim.

### 1931)of of where

your Inview of the foregoing,we are of the opinion that
as, may Dis first two questions shouldbe answered in the affirmative, under the~facts stated, the CityAttorney orhis assistants legally represent the State in criminal cases appealed to the trict Court of Bowie County from the CorporationCourt of the City of Texarkana in cases involvingboth violations of the penal laws of this State and ordinancesof the City of Texarkana.

"Onewho holds the office of county judge and who is a lawyer is privileged to practice law in the district court. The complaint of the fact that the private prosecutor representing the statewas also the county judge is without merit."

As to your third question concerningwhether it is necessary that the CountyAttorney actually be present in the District Court during the trial of the cases on appeal from the CorporationCourt of the City of Texarkana,we are of the opinion that the actual physical presence of the CountyAttorney would not be absolutelynecessary. In the case of Butlerv. State, 299 S.W. 420 (Tex.Cri.m. 1927) the court in its opinion stated that: "Objectionwas made by appellant to the prosecution of the case against him by an attorney appointed by the court. His bill of exception shows that there was no county attorney of Calhoun County and that the district attorneywas absent. Article 

### 31 of the Code of Criminal Procedure expressly authorizes the appointment of an attorney to represent the statewhen the district or county attorney fails to attend any term of the district, county, or justice court. The informationwas filed in this case by the district attorney of Calhoun County. Under these facts, the court did not err in appointing an attorney to prosecute the case. 

### 1039."Youngerv. State, 76 Tex.Cr.R. 243, 

### 173S.W.

Also in the case of Davis, 

### 188S.W.2d 

### 397 (Tex.Crim.

### 1945) the court held that:Mr. Guy E. Jones, page 4 

### (W-1353)

II

. . . appellant complainsbecause Jimmie MacNicoll,who was not the DistrictAttorney, nor an Assistant DistrictAttorney of Dallas County,was permitted to participate in the prosecution of appellant.

. . . The bill fails to disclose any act which the specialprosecutordid thatwas improper orwas done without the consent or approval of the Assistant DistrictAttorney. We see no inhibition in the statute referred to against any lawyer,with the consent and approval of the DistrictAttorney, or his assistant, from participatingin the prosecutionof anyone accused of a violation of the laws of this state.
. . .I' While therewould be no question that the City Attorney or his assistant could participate or assist the CountyAttorney in prosecution of appeals from Corporation Courtwhen the County Attorney is physicallypresent in court, it would seem equally clear that if the CountyAttorney is not present and the defendant raised an objectionupon this point the courtwould have the authority to designate the CityAttorney or his assistant,pursuant to Article 

### 31,Vernon's Code of Criminal Procedure,as the attorney to represent the State. Thiswould be especially true if the CountyAttorney had participated in the filing of the prosecution as the court stated in Garciav. Laughlin, 

### 155Tex. 261, 

### 285S.W. 2d 191 

### (1956)

that:
"In State Board of Dental Examiners v. Bickham,, supra [2O3S.W.2d 5661, the court says: "I***Nor may the State be represented in the district or inferior courts by any person other than the county or district attorney, therein. unless such officer joins

Allen v. Fisher, 

### 118Tex. 

### 38,9 S.W.2d 

### 731; State ex rel. Downs v. Barney, Tex.Civ.App.

### 164S.W. 2d 

### 55,***In SUMMARY The City Attorney or his assistantswith the consent of the CountyAttorney may, under the facts stated, legally represent the State, in criminal cases appealed to the District Court of Bowie County from the Corporation Court of the City of Texarkana in cases involvingviolations of the penal laws of this State and ordinances of the City of Texarkana.
It would not be absolutelynecessary for the CountyAttorney to be physicallypresent in thecourtc

Wr. Guy E. Jones, page 5 

### (W-1353)

room during the trial of such appeals from the Corporation Court of the City of Texarkana as the District Courtwould have authority to appoint the CityAttorney or one of his assistants to represent the State in such prosecutions should any objectionbe raised by the defendant. Very trulyyours, WILL WILSON Attorney General of Texas

PB:wb
APPROVED: OPINIONCOMMITTEE
W. TJ. Geppert, Chairman Sam Stone GrundyWilliams C. J. Taylor John Hofmann Pat Bailey Assistant

REVIEWED FOR THEATTORNEY GENERAL
BY: Leonard Passmore