OFFICE OF THE AITORNEY GENERAL OF TEXAS 

AUSTtN 

4-G- 

-- 

Your opinion r 

been reeeioed and oom 

laring quotation repra 

letter: 

San Augustine 

fen to aeteEn1ne 

not conr.aLFl8 filed a ccnteat 

a oopy ot aontxes Xcuillal, county 

ation ie whether under rirticle 

e DUTY of the County Attorney to 

lidity of the elsation..,." 

Article 66640a, Vernon's Annotated penai Code, 

in p?COVidbg iOr % pO8Sible COnt8St Of Such a lOCal OpttOn 

aleotion reads, in so far as applicable, as follows: 

"....aadthe pmaeeili~gs in suah (local 
Eon. Joe J, Fisher, Page 2 

option electiun) COnt8st shell be ccnduoted 

in the 8ene rranner, as now ~ovem the contest or’ say general election....* (Parenthetical fnnortion ours) 

ikticle 3069, Zievfsed Civil 8xcGdm3, 1925, grovides: 

*ff t.ke contest be for the validity of 

an election held for any other purpose than 

the election of an officer or offioem in eny 

county. or part of a county or precinct of a 

0ounty;or in any incorporated city, town or 

village, tip resident or suoh county, FreCi%?t, 

city, tom or village, or any, number o?' such 

residents, may contest such electlon iu the distrint court of such county in the sme .mmner 

and under the sm.m rules, as far as applicable, 

as are prescribed in this chapter for contostIn3 the val:dity OP an eleotion for a ccuzty 

ofeice." 

The suCceedin Article 3070, Revised Civil Statutes, 1925, declares: 

*In any case provided for i;n the preaedlng artiole, the county attorney of the county, 

or if there is no ootmty attomey,.the district 

attorney of the dLstrict, or the rayor of the 

city, town or vLlla~e, or the officer nrho declared the ofricial result of' said election, or 

one of then, as the case rzay be, shall be Dade 

the oonteetee, and shall be served with nctice 

and stotment, and shall file his reply thereto 

as. in the cam of a coiltest for office;...." 

Artiole 3043, Revised Civil Statutes, 9925, provides that: 

Vhe person . . . shall, within ten days 

alter~receiving such notice azd statemnt, cleliver, or cause to be delivered, to said contest&&, his aSent or attornsg, a reply thereto in writing." 
Ron. Joe J. Fisher, Page 3 

Artiale 5, Section 21, of the Constitution 

01ares: 

de- 

"....'i'he oounty attorneys shall represent the SWte in a3l cases Fn the District 

and inferior courts inthelr respective counties; but if any county shall be included in 

a distriot inwhichthore shall be a dietrfot 

attorney, the respective duties of distriot 

attorneys and countp attorneys shall in such 

oounties be regulated by the LBgislatu.re....w 

It till be noted that the latter olause of the 

.~onstitutional proviso set ou t above affixes an important 

'Vi-estrietion or qualification upon the generaa power announeed in the first clause. San Augustine County is within a $udiaLal distriat having a district attorney; therefore the terms of the Constitution relegates to the k&vlature license and authority to define the power and duties 

of the county attorney. 

The ten ,"duties" as used in the Constitution 

inherently implies the further idea of "power" or -authority." Consequent$y, we must look to legislative aat in 

order to asoertain the extent as well as the,definition 

of the county attorney's duties. .Zis powers and duties 

are uo-extensive. In other words, where there is no authority there .ctan be no duty; and where there is no duty 

there can be no power or authority. See~liechem on Fublia 

Offices and Officers, Sections 501 and 502. 

It is to be observed here, that we have been 

unable to find any statutory provision requiring or authorizing a county attorney to defend the validity of.a 

local option election In event of contest proceeding. 

~Eor do wa believe that the terns oi~titicle 5070, phztsed 

Civil Statutes, 1925, supra, im~se such a duty. - 

statutory provision merely provides that the ,naroed contestee in aQ election oontcst "shall file his reply" (underscoring ours) to the natiae and i;tutement of oontest. 

The case of Eoore et al vs. Commissioners' Court, 

ol= c?itus county, 192 SW 605, involving an election contest 

cn ano';her natter, while not decisive of this ques,tion, is 

strohgly persuasive. The opinion is short and we quote it 
Iion. Joe J. Fisher, Page 4 

in ?ull, to-wit: 

"I-3, 

an election 

J. The proceeding is to oontest 

held in justiCe precinct Bo. 3 

o? Titus county for the purpose of preventing 

the ruming at large of hogs, sheep, and goats 

in said precinct. The court sustained a general demurrer to the petition, and the appeal 

is to review the ~ruling of the court in that 

respect. 

"The petition alleged that the county 

'attorney had agreed that a notice of the contest need not be given to him by the ccntestants and had agreed to waive such notice and 

service thoteof upon him. The petition does 

not undertake to allege that a written statement o? the grounds of the contest had been 

served upon the county attorney of the county, 

The ntatutezrequires the,:~iving ok? notice of 

the contest (Artiole 3151, Vernon*s Saylea' 

Statutes), and zequiiws that the county attorney in this character o.?:proceeding *shall be 

&+seS?k~~ with notice ands-tatement~ (Article 

307S,"Vornon*s Saylea' Statutes) 

&xl servink of. the notice &u&d w 

statute is not for the benefit o? the county 

attorney and~~necluliarly personal to him, who 

is merely a formal party to such proceeding 

Fge giving and serving o? the notice preocgbed 

bg the statute is the prerequisite to the jurisdiction of the drstriot court. Cauthron v. 

h.lrphy, 61 Tex. CIV. Appl 462,~ 130 5, vi. 671. A 

speci?ic mode of contesting an election having 

been prescribed by the statute, that particular 

ncx48e alone'can be presorted to; it is exalusive 

of every other nodfi. And this particular proceeding 15 not a contest as between two persons, 

so as to suthorize'and warrant the oounty attorney to waive a statutory proee&ure essentially 

involving jurisdiction of the district court. 

"It is believed the court did not err in 

sustaining the demurrer, end the judgment is 

a??irced.'9 
. 

Hon. Joe J. Fisher, page 3 

You are therefore raspecti?xlly advised that 

it is the opinion OF this department that it ia not the 

duty or the county attorney td deiend the validity or a 

oostoated local option eleotion. Ycu are iurther respsctrully advised that it is the opinfon of this department that when the coumty attorney is Eade conteatee and served with notice under Xrtialas 3043 aid 3070, 

I?evisad Civil Statutes, 1925, it then beooraes the duty 

of tha county attorney to prepare and file the written 

contsstee'e reply as required by said statutes and that, 

when this fn done the county attorney has fully disc 

charged his statutory duty. +?ny additional act or acts 

0r the county attorney b9g0na that 0r riling his reply 

would seem to rest'gurelp within the discretion or the 

county attorney. Them would appear so other criterion 

which would be resorted to. 

The opinion or th% department, dated April 

22, 1938, mitten-by Fion. Jce. @harp, assistant Attorney 

General, Vol. 381, page 120, holdlq to the contrary, 

aitesthe case of Xooker vs. ‘r'oster, 1 SVf (2nd) PC, which 

cam we think is nslthcr decisive nor persuasive, and 

said opinion is therefare overruled.