Honorable Wm. B. Sullivant Opinion No.M-904

CountyAttorney Cooke County Courthouse Re: Who serves asDistrict Gainesville, Texas Attorney of the 16th Judicial District, pursuant to Senate Bill 906,Acts Dear Mr. Sullivant: 62nd Leg., R.S., 1971.

Your recent letter requesting the opinion of this office concerning the referenced matter states, inpart, as follows: "The 62nd Legislature, Regular Session, 1971', passed Senate Bill 906, creating the 235th Judicial District Court and the office of District Attorney for the Court. The District will include Cooke, Wise and Jack Counties. The Governor appointed me to fill theposition of District Attorney for this court until November, 1972,when the term of office will expire and the office will become elective. A problem has come tomind onwhich Iwould appreciate anAttorney General's Opinion tohelp clarify matters here inCooke County. "It is this: Cooke County isalready in the 16th Judicial District, which District serves both Cooke and Denton Counties. The 16thwas setup so that the County Attorneys of Cooke and Denton Counties would serve asDistrict Attorneys of the 16thDistrict when the court sits in their respective counties. As IreadArt. 199-A, Subchapter B, Sec. 2.007, the County Attorney inCooke County shall serve thenew court created by S.B. 906, 62nd Legislature, Regular Session, 1971. Idonot think thiswas the intent of S.B. 906. If the creating of the office of District Attorney in S.B. 906 is tobe interpreted as superceding theprovisions ofArt. 199-A, Subchapter B, Sec. 2.007,please advise whether the District Attorney under S.B. 906 shall serve in the 16th Judicial District orwhether

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the CountyAttorney shall continue to serve as District Attorney in the 16th Judicial District." The 16th Judicial District was created byArticle 199(16), Vernon's Civil Statutes.

Section 2.007 ofArticle 199a,Vernon's Civil Statutes, which is the Judicial Districts Act of 1969,provides as follows:

"Thedistrict attorney (orcounty attorney or criminal district attorney), the sheriff? the district clerk, the bailiffs, and other officers serving the other district court or courts of the county shall serve in their respective capacities for the court created by thisAct." The caption of Senate Bill 906,Acts 62nd Leg. R.S. 1971,provides, inpart, as follows:

"AnAct . . .creating the 235th Judicial District
. . .; amending theJudicial Districts Act of 1969, as amended (Article 199a, Vernon's Texas Civil Statutes)
. . .;creating the office ofdistrict attorney of the 235th Judicial District I,

. . . Section 2of theAct provides as follows: "Subchapter C,Judicial Districts Act of 1969 (Article 199a,Vernon's Texas Civil Statutes),is amended by adding Section 3.028 to read as follows: "'Section 3.028. (a)The 235th Judicial District, composed of the Counties ofWise, Jack, and Cooke, is hereby created. "'(b) The enactment of this amendment shall in noway change, alter, diminish, or affect theprovisions of Subdivision 16,Article 199, Revised Civil Statutes of Texas, 1925, as amended, but is in addition toand cumulative of thoseprovisions."' Section 4 of theAct provides: "(a) The office of district attorney for the 235th Judicial District is established. The district

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attorney shall have thepowers and duties prescribed by law for district attorneys. "(b) On the effective date of thisAct, the Governor shall appoint adistrict attorney for the 235th Judicial District who shall serveuntil the general election in 1972 anduntil his successor is elected and has qualified.
. . .'I Section 8of theAct provides: "All laws andparts of laws in conflict herewith are hereby repealed to the extent of such conflict and inany and all cases of such conflict, theprovisions of thisAct shall prevail."
A conflict is thuspresented byportions of the foregoing statutes. On the one hand, Section 2.007 ofArticle 199a, quoted supra! states, ineffect, that the district attorney of the 16thJudicial District (who is the County Attorney of Cooke County when the 16th Judicial District Court sits in that County) shall be also the District Attorney of the 235th Judicial District Court created pursuant toArticle 199a.

On the other hand, Section 4of Senate Bill 906, quoted supra, establishes the office of the District Attorney for the 235th Judicial District, andprovides forhis independent election, with no reference being made to theDistrict Attorney of the 16th Judicial District.

We are of the opinion that the language of Section 8of Senate Bill 906, quoted supra, is controlling in resolving the conflict adverted tohereinabove, and that the specific provisions of Section 4of theAct relating to the establishment of the office ofDistrict Attorney for the 235th Judicial District have impliedly repealed the language of Section 2.007 ofArticle 199a, insofar as that language would prohibit the establishment of the separate office of District Attorney for the 235th Judicial District.

The applicable rule of statutory construction has been stated as follows:

"(W)here irreconcilably conflicting acts are passed at the same time orwhere parts or sections of the same act are in irreconcilable conflict, the act orprovision later inposition prevails as the

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latest expression of the legislative will, and repeals the other in so far as there is irreconcilable conflict." 53Tex.Jur.Zd 150, Statutes, Sec. 101. See, also, Attorney General's Opinion No.M-472 (1969).

Indiscussing the law of implied repeal, the Supreme Court of Texas, in State v. Easley,~~,.404 S.W.2d 296 (Tex.Sup. 1966) stated, atpage 300, that:

"The rule of lawapplicable is stated in the case of Commercial Credit Co., Inc.v.American Mfg. Co., et al. (Tex.Civ.App. 1941), 155 S.W.2d 834, 839,writ refused, as follows: "'We are not unaware of the general rule of law in this Statewhich holds that repeals by implication arenot favored. But as early asRogers v. Watrous, 8Tex. 62, 58Am.Dec. 100, and by numerous cases ondown to recent dates itwas announced that subsequent statutes revising the subject matter of former ones, and evidently intended as a substitute for them, although containing no express words to that effect, must operate to repeal those going before. This rule was followed by the Commission ofAppeals in First Nat. Bank v. Lee County Cotton Oil Co., 274 S.W. 127,where the authorities are collated over a period of seventy-five years. See also Meek v. Wheeler County, 135 Tex. 454, 125 S.W.2d 331, approved by the Supreme Court, 135 Tex. 454, 144 S.W.2d 885.' See also Gaddis v. Terrell, Land Commissioner, 101 Tex. 574, 110 S.W. 429 (1908)."
Inview of the foregoing, we are of the opinion that Section 4 of Senate Bill 906 impliedly repeals Section 2.007 of Article 199a, insofar as Section 2.007 relates to the office of District Attorney of the 235th Judicial District.

Your questions are, therefore, answered as follows: (a)the County Attorney of Cooke County shall serve as the District Attorney of the 16th Judicial District Court, when that Court sits in Cooke County, and (b)the District Attorney of the 235th District Court, created by Senate Bill 906, shall serve that Court in all counties inwhich it sits.

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Hon. Wm. B. Sullivant, page 5 (M-904)

SUMMARY Section 4of Senate Bill 906, Acts 62nd Leg., R.S. 1971, impliedly repeals Section 2.007 of Article 199a,Vernon's Civil Statutes (theJudicial Districts Act of 1969), insofar as Section 2.007 relates to the office of District Attorney of the 235th Judicial District. The County Attorney of Cooke County shall serve as the District Attorney of the 16thJudicial District Court, when that Court sits in Cooke County. The District Attorney of the 235th Judicial District Court, created by said Senate Bill 906, shall serve that Court inall inwhich it sits. truly yours,

fTexas Prepared byAustin C. Bray, Jr. I' Assistant Attorney General APPROVED: OPINION COMMITTEE Kerns Taylor, Chairman W. E.Allen, Co-Chairman Sally Phillips Wardlow Lane Van Thompson, Jr. Bill Craig
MEADE F.GRIFFIN Staff Legal Assistant
ALFRED WALKER Executive Assistant NOLA WHITE FirstAssistant

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