E NEu GENE EXAS

Honorable Steve Latham County Attorney Hill County Hillsboro, Texas Opinion No. C-378
Re: Whether a County Attorney may represent himself in the trial of a misdemeanor charge filed in another county.
Dear'Mr. Latham:

Your letter concerning the above captioned question reads in part as follows:

"In accordance with Article 4399 of Vernon's Civil Statutes, the opinion of the Attorney General is requested on the followingquestion: "May aCounty Attorney of one County represent himself on the trial of amisdemelanor charge filed in another County? "The following facts are pe~rtinent: The undersigned County Attorney of **Hill** County has been charged with amisdemeanor game violation inMason County." Article 32 ofVernon's Code ofCriminal Procedure provides as follows:

"District and County Attorneys shall not be of counsel adversely to the State in any case, in any court, nor shall they, after they cease tobe such officers, be of counsel adversely to the State in any case inwhich they have been counsel for the State."
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Hon. Steve Latham, page 2 (C-378)

We are not deciding whether aDistrict or County Attorneywho represents himself on the trial of amisdemeanor charge is "of counsel" as that term isused in irticle 32, supra, but for thepurpose of this opinion, even if such attorney is "of counsel", it is our opinion, based upon the following authorities, that such Article shouldbe construed so as to except from itsprohibition the right of such attorneys to represent themselves. The legislative power which has been vested in our State is plenary and complete except as that power is limited by the State Constitution orby the Federal Constitution. Ferquson v. Maddox, 114 Tex. 85, 263, S.W. 888 (1924); Terre11 v. King, 118 Tex. 237, 14 S.N.2d 786 (1929).
Ye believe thatArticle 32,Vernon's Code ofCriminal Procedure, isgenerally sound and serves a legitimate legislative purpose. Were itnot that its terms seem toprohibit absolutely a county ordistrict attorney from defending himself against any criminal charges lodged against him, except upon resignation from office, its constitutionality would not be open to doubt. However, the freedom toparticipate in the preparation of one's own defense is a fundamental right guaranteed by both the State and Federal Constitutions. U. S. Const. Amendment VI: Tex. Cnst. Art. I, Sec. 10;Anselin V. State, 160 s.%. 713 (Tex.Crim. 1913). Although public office iS aprivilege and not a right, a person cannot normally be barred from public office for exercise ofhis constitutional rights. "...we need not pause to consider whether an abstract right to public employment exists. It is sufficient to say that constitutional protection does extend to the public servant whose exclusion pursuant to a statute ispatently arbi,kraryor discriminatory." Wieman v. Updeqraff, 344TJ.S.153 at page 192, 73 S.Ct. 215, 97 L.Cd. 21G (1952): II.. .thata person isnot compelled to hold &zblic office cannot possibly be an excuse forbarring him from office by state imposed criteria forbidden by the Constitution.
. . ."Torcaso v.Watkins, 367U.S. 488 at pages 495, 496; 81 S.Ct. 1680, 7L.Ed,2d 982 (1961). Moreover, even if some compelling reason may be shown
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for restricting the exercise of constitutional rights, the burden is on the State to show necessity and thatno alternative forms of regulation not restrictive on constitutional rights would suffice. "Ina series ofdecisions this Court has held that even though the governmental purposebe legitimate and substantial, that purpose cannot be pursued by means thatbroadly stifle fundamental personal liberties when the end can be more narrowly achieved. The breadth of legislative abridgment must be viewed in the light of less drastic means for achieving the samebasic purpose." Shelton v. Tucker, 364U.S. 479 at page 488, 81 S.Ct. 247, 5L.Ed.2d 231 (1960).
In itsdesire toguard the public against improper administration by district or county attorneys, the Legislature appears tohave deemed it proper to forbid disloyalty by enactment ofArticle 32 to strike down all possibly disloyal acts, rather than attempt to separate theharmless and theharmful.
Inmost cases thiswould be within the Legislature's power since it isnormally neither necessary nor desirable to permit county ordistrict attorneys to act in two capacities in their normal dealings with the State. Article 32 would become unconstitutional only if it infringes on the constitutional right to defend oneself against criminal prosecution when the public welfare does not require such stringent protection. We think it clear such stringent protection isnot required under the fact situation about which you have inquired. However, we wish to reemphasize the constitutionality ofArticle 32generally and stress thatwe express no opinion with respect to fact situations which gobeyond the onehere involved. The Supreme Court of Texas has declared, 'I.. .it isa well settled rule of statutory construction thatwhere the language ofa statute isbroad enough to cove,rmatters without, aswell aswithin, the power of the Legislature to enact, courts should construe,the statute,in arestricted manner,as applying only tomatters lying within the legislative power. This rule should be applied in all instances unle,ssthe statute itself clearly indicate,sotherwise. + F .'I Waco v. Landinqham, 138 Tex. 156, 157 S.W.Zd 631 at page 633 (1941).
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Pursuant to the above, we conclude thatArticle 32, Vernon's Code of Criminal Procedure, must be construed so as to except from its prohibitions the right to defend oneself against amisdemeanor charge brought in another county. Any other construction would render itunconstitutional in violation ofU. S. Const. Amendment VP, and Texas Const. Art. I, Sec. 10.
SUMMARY Article 32,Vernon's Code ofCriminal Procedure, should be construed so as to except from its prohibition the right of a county attorney to represent himself on the trial of amisdemeanor ~chargebrought inanother county. Any other construction would render it unconstitutional inviolation of U.S. Const. Amendment VI and Texas Const. Art. I. Sec. 10. Very trulyyours, WAGGONER CARR Attorney General 

## By<L, J. (Larry)Craddock Assistant LJC:sj:mkh:clm

APPROVED: OPINION COMMITTEE
W. V. Geppert, Chairman Howard Fender Malcolm Quick Kerns Taylor James Strock
APPROVED FOR THEATTOPNEY GENERAL BY: Stanton Stone

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