OFFICE OF THE AITORNEY GENERAL OF TEXAS **AUSTtN**

4-G-

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Your opinion r

been reeeioed and oom laring quotationrepra 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 CountyAttorney to lidity of the elsation..,."

Article 66640a, Vernon'sAnnotatedpenai Code, in p?COVidbg iOr % pO8Sible COnt8St Of Such a lOCal OpttOn aleotion reads, in so far as applicable,as follows:

"....aadthe pmaeeili~gsin suah (localEon. 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 fnnortionours)
ikticle 3069, Zievfsed Civil 8xcGdm3, 1925, grovides:
*ff t.ke contestbe for the validity of an electionheld 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 incorporatedcity, town or village, tip residentor 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 eleotionfor 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 officernrhodeclared the ofricialresult of' said election,or one of then, as the case rzay be, shall be Dade the oonteetee,and shall be servedwith 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~receivingsuch 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

oountyattorneys shall represent the SWte in a3l cases Fn the District and inferior courts inthelr respectivecounties; but if any county shall be included in a distriot inwhichthore shall be a dietrfot attorney,the respectiveduties of distriot attorneys and countp attorneys shall in such oounties be regulatedby the LBgislatu.re....w
It till be noted that the latter olause of the .~onstitutional

proviso set out above affixes an important 'Vi-estrietion

or qualificationupon the generaa power announeed in the first clause. San AugustineCounty is within a $udiaLaldistriathaving a districtattorney;therefore the terms of the Constitutionrelegates 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 inherentlyimplies the further idea of "power" or -authority." Consequent$y, we must look to legislativeaat in order to asoertain the extent as well as the,definition of the county attorney'sduties. .Zispowers 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 Officesand Officers, Sections 501 and 502.

It is to be observedhere, that we have been unable to find any statutoryprovisionrequiringor authorizinga county attorney to defend the validity of.a local option election In event of contestproceeding. ~Eordo wa believe that the terns oi~titicle5070, phztsed Civil Statutes, 1925, supra, im~se such a duty. - statutoryprovisionmerely provides that the ,naroedcontestee 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, involvingan election contest cn ano';her

natter, while not decisive of this ques,tion, is strohglypersuasive. The opinion is short and we quote itIion.

Joe J. Fisher, Page 4

in ?ull, to-wit:

"I-3, an election J. The proceeding is to oontest

held in justiCeprecinct Bo. 3 o? Titus county for the purpose of preventing the ruming at large of hogs, sheep, and goats in said precinct. The court sustaineda 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 'attorneyhad 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 petitiondoes not undertake to allege that a written statement o? the grounds of the contesthad been served upon the county attorney of the county, The ntatutezrequires the,:~iving

ok? notice of the contest (Artiole3151, Vernon*s Saylea' Statutes),and 

### zequiiwsthat the county attorney in this character o.?:proceeding *shallbe &+seS?k~~

with notice ands-tatement~ (Article 307S,"Vornon*sSaylea' Statutes) &xl servink of.

the notice &u&d w statute is not for 

### the benefit o? the county attorneyand~~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 prerequisiteto the jurisdiction of the drstriot court. Cauthronv. h.lrphy,

61 Tex. CIV. Appl 462,~ 130 5, vi. 671. A speci?icmode of contestingan electionhaving been prescribedby the statute, that particular ncx48e alone'canbe presorted to; it is exalusive of every other nodfi. And this particularproceeding 15 not a contest as between two persons, so as to suthorize'and warrant the oounty attorney to waive a statutoryproee&ure essentially involving jurisdictionof the district court.
"It is believed the court did not err in sustainingthe demurrer, end the judgment is a??irced.'9.

Hon. Joe J. Fisher, page 3

You are therefore raspecti?xlly advisedthat it is the opinion OF this department that it ia not the duty 

### or the countyattorney td deiend the validity or a oostoated local option eleotion. Ycu are iurther respsctrullyadvised that it is the opinfon of this department that when the coumty attorney is Eade conteatee and servedwith 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'ereply as required by said statutesand that, when this fn done the county attorneyhas fully disc chargedhis statutoryduty. +?ny additionalact or acts 0r **the county**  attorney

### b9g0na that 0r riling his reply would seem to rest'gurelpwithin the discretionor 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, assistantAttorney 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 decisivenor persuasive,and said opinion is therefare overruled.