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 following question: 

"May a County Attorney of one County represent himself on the trial of a misdemelanor 

charge filed in another County? 

"The following facts are pe~rtinent: The 

undersigned County Attorney of Hill County has 

been charged with a misdemeanor game violation 

in Mason County." 

Article 32 of Vernon's Code of Criminal 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 

to be such officers, be of counsel adversely to 

the State in any case in which they have been 

counsel for the State." 

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. 

Hon. Steve Latham, page 2 (C-378) 

We are not deciding whether a District or County Attorney who represents himself on the trial of a misdemeanor charge 

is "of counsel" as that term is used in irticle 32, supra, but 

for the purpose of this opinion, even if such attorney is "of 

counsel", it is our opinion, based upon the following authorities, that such Article should be construed so as to except 

from its prohibition 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 or by 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 that Article 32, Vernon's Code of Criminal 

Procedure, is generally sound and serves a legitimate legislative purpose. Were it not that its terms seem to prohibit 

absolutely a county or district 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 to participate 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 a privilege and not a right, 

a person cannot normally be barred from public office for 

exercise of his 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 is patently arbi,krary or discriminatory." 

Wieman v. Updeqraff, 344 TJ.S. 153 at page 192, 73 S.Ct. 215, 

97 L.Cd. 21G (1952): II. . .that a person is not compelled to 

hold &zblic office cannot possibly be an excuse for barring him 

from office by state imposed criteria forbidden by the Constitution. . . ." Torcaso v. Watkins, 367 U.S. 488 at pages 495, 

496; 81 S.Ct. 1680, 7 L.Ed,2d 982 (1961). 

Moreover, even if some compelling reason may be shown 

-1796- 
Hon. Steve Latham, page 3 (C-3781 

for restricting the exercise of constitutional rights, the 

burden is on the State to show necessity and that no alternative forms of regulation not restrictive on constitutional rights would suffice. "In a series of decisions 

this Court has held that even though the governmental purpose be legitimate and substantial, that purpose cannot be 

pursued by means that broadly 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 same basic 

purpose." Shelton v. Tucker, 364 U.S. 479 at page 488, 81 

S.Ct. 247, 5 L.Ed.2d 231 (1960). 

In its desire to guard the public against improper 

administration by district or county attorneys, the Legislature appears to have deemed it proper to forbid disloyalty 

by enactment of Article 32 to strike down all possibly disloyal acts, rather than attempt to separate the harmless and 

the harmful. 

In most cases this would be within the Legislature's 

power since it is normally neither necessary nor desirable 

to permit county or district 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 is not required under the fact situation about which 

you have inquired. However, we wish to reemphasize the constitutionality of Article 32 generally and stress that we express 

no opinion with respect to fact situations which go beyond 

the one here involved. 

The Supreme Court of Texas has declared, 'I. . .it is a 

well settled rule of statutory construction that where the 

language of a statute is broad enough to cove,r matters without, as well as within, the power of the Legislature to enact, courts should construe, the statute, in a restricted manner , as applying only to matters lying within the legislative power. This rule should be applied in all instances 

unle,ss the statute itself clearly indicate,s otherwise. + F .'I 

Waco v. Landinqham, 138 Tex. 156, 157 S.W.Zd 631 at page 633 

(1941). 

-1797- 
Hon. Steve Latham, page 4 (C-378) 

Pursuant to the above, we conclude that Article 32, 

Vernon's Code of Criminal Procedure, must be construed so 

as to except from its prohibitions the right to defend oneself against a misdemeanor charge brought in another county. 

Any other construction would render it unconstitutional in 

violation of U. S. Const. Amendment VP, and Texas Const. 

Art. I, Sec. 10. 

SUMMARY 

Article 32, Vernon's Code of Criminal Procedure, 

should be construed so as to except from its prohibition the right of a county attorney to represent himself 

on the trial of a misdemeanor ~charge brought in another 

county. Any other construction would render it unconstitutional in violation of U.S. Const. Amendment VI and Texas 

Const. Art. I. Sec. 10. 

Very truly yours, 

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 THE ATTOPNEY GENERAL 

BY: Stanton Stone 

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