THEA ORNEY GENERAL 

OFTEXAS 

AUSTIN ~~.TEXAS 

June 7, 1962 

Mr. Guy E. Jones Opinion No. WW-13 53 

County Attorney 

Bowie County Re: May a City Attorney legally repreTexarkana, Texas sent the State in the prosecution 

of criminal cases in the District 

Court involving violation of the 

penal laws of Texas on appeal from 

Corporation Court of the City and 

Dear Mr. Jones: related questions. 

You have requested an opinion from this office upon the 

questions of: 

"1. May a City Attorney, 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 City Attorney, or his assistants 

legally represent the State in the prosecution in 

the District Court of criminal cases involving 

violation of city ordinances on 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?" 

In your letter you also stated that the City Attorney and 

County Attorney, as well as the District Judge, had consented to an 

arrangement whereby the City Attorney or his assistants would. participate in the appeals from the Corporation Court 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, confer upon 

the District Court certain criminal jurisdiction exercised 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, office held that the primary responsibility and 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 

City Attorney and his assistants may participate in the further 

prosecution of cases appealed from Corporation Court. 

In Burkhard v. 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 county attorney from appearing and prosecuting a 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 prosecution of a case. 

This practice has been known to all the Legislatures that have assembled in the State, and if 

it be an illegal or improper practice, as is contended by counsel for defendant, it is indeed 

strange that it has been so long and so universally tolerated by the law-making power and 

sanctioned by 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 should never surrender to assistant counsel. . . .I1 

See also, 15-A Tex.Jur. 502, District and Prosecuting 

Attorneys, Sec. 16. 

In Phillios v. State, 263 S.W.2d 159 (Tex.Crim. 1953), 

the court held that: 

"Counsel other than the district or county 

attorney may 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 San Angelo 

bar to participate in the trial as a special prosecutor. This Court has recently held against appellant's contention in Phillips v. State, Tex.Cr.App., 

263 S.W.2d 159." 
c 

Mr. Guy E. Jones, page 3 mw-1353) 

The heretofore cited cases are ample authority for 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 attorney might be a City Attorney or one 

assistants would in no way act as a prohibition in view 

case of Shooue, v. 

Court held: 

State,, 38 S.W.2d 793 (Tex.Crim. 1931) 

of 

of 

where 

your 

In view of the foregoing, we are of the opinion that 

as, 

may 

Dis 

first two questions should be answered in the affirmative, 

under the~facts stated, the City Attorney or his assistants 

legally represent the State in criminal cases appealed to the 

trict Court of Bowie County from the Corporation Court of the 

City of Texarkana in cases involving both violations of the penal 

laws of this State and ordinances of the City of Texarkana. 

"One who 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 state was also 

the county judge is without merit." 

As to your third question concerning whether it is necessary that the County Attorney actually be present in the District Court during the trial of the cases on appeal from the 

Corporation Court of the City of Texarkana, we are of the opinion 

that the actual physical presence of the County Attorney would 

not be absolutely necessary. In the case of Butler v. State, 299 

S.W. 420 (Tex.Cri.m. 1927) the court in its opinion stated that: 

"Objection was 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 attorney was absent. Article 31 of the Code 

of Criminal Procedure expressly authorizes the appointment of an attorney to represent the state when the 

district or county attorney fails to attend any term 

of the district, county, or justice court. The information was 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." 

Younger v. State, 76 Tex.Cr.R. 243, 173 S.W. 

Also in the case of Davis, 188 S.W.2d 397 (Tex.Crim. 1945) 

the court held that: 
Mr. Guy E. Jones, page 4 (W-1353) 

II 

. . . appellant complains because Jimmie MacNicoll, who was not the District Attorney, nor an 

Assistant District Attorney of Dallas County, was 

permitted to participate in the prosecution of appellant. . . . The bill fails to disclose any act 

which the special prosecutor did that was improper 

or was done without the consent or approval of the 

Assistant District Attorney. We see no inhibition in 

the statute referred to against any lawyer, with the 

consent and approval of the District Attorney, or his 

assistant, from participating in the prosecution of 

anyone accused of a violation of the laws of this 

state. . . .I' 

While there would be no question that the City Attorney 

or his assistant could participate or assist the County Attorney 

in prosecution of appeals from Corporation Court when the County 

Attorney is physically present in court, it would seem equally 

clear that if the County Attorney is not present and the defendant 

raised an objection upon this point the court would have the authority to designate the City Attorney or his assistant, pursuant 

to Article 31, Vernon's Code of Criminal Procedure, as the attorney to represent the State. This would be especially true if the 

County Attorney had participated in the filing of the prosecution 

as the court stated in Garcia v. Laughlin, 155 Tex. 261, 285 S.W. 

2d 191 (1956) that: 

"In State Board of Dental Examiners v. Bickham,, 

supra [2O3 S.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, 118 Tex. 38, 9 S.W.2d 731; 

State ex rel. Downs v. Barney, Tex.Civ.App. 164 S.W. 

2d 55, ***In 

SUMMARY 

The City Attorney or his assistants with the 

consent of the County Attorney 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 involving violations of the penal laws of this 

State and ordinances of the City of Texarkana. 

It would not be absolutely necessary for the 

County Attorney to be physically present in the court 
c 

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 Court would have authority to appoint the City Attorney or one of his assistants 

to represent the State in such prosecutions 

should any objection be raised by the defendant. 

Very truly yours, 

WILL WILSON 

Attorney General of Texas 

PB:wb 

APPROVED: 

OPINION COMMITTEE 

W. TJ. Geppert, Chairman 

Sam Stone 

Grundy Williams 

C. J. Taylor 

John Hofmann 

Pat Bailey 

Assistant 

REVIEWED FOR THE ATTORNEY GENERAL 

BY: Leonard Passmore