December 16, 1957

Honorable Homer Garrison Director, Texas Department of public Safety Austin, Texas Opinion No. WW- 325

Re: Whether the CountyAttorney, Mstrict Attorney

### or Crirlnal DistrictAttorney, respectively,has a duty to represent the State in appeals and other actions In the local courts resulting from acts and orders of the Departmentof Public Safety, pursuant to the SafetyResponsibilityAct (Art.6701h, Dear Mr. Carrlson: V.C.S.) and related questions.

We have receivedyour letter of November 18, 1957, submitting severalquestions for the opinion of our department. These questionsamount to but one proposition, that is, is there a duty upon the district attorney, county attorney,
or criminal district attorney, as the case 'maybe, to represent the Department of Public Safety and, consequently,the State of Texas in appeals and other actions resulting from acts and orders from the Department of Public Safetypursuant to the Safety-ResponsibilityAct (Article6701h,V.C.S.).

The statutesof the State of Texas are very confusing concerningthe powers, rights, and duties of county attorneys, district attorneys and criminaldistrict attorneys. However, the Constitutionof the State of Texas, in Section 21 of ArticleV, imposesupon county attorneys the followingduty:

"The county attorneys shall represent the state in all oases in district and Inferior courts in their respective counties,but if any county shallbe included in a district In which there shallbe a district attorney the respectiveduties of district attorneys and county attorneys shall in such countiesbeHonorable Homer Garrison,page 2. (m-325)

regulatedby the Legislature."
Accordingly, in any county in which there is a county attorney, the duty evolvesupon such county attorney to represent the Department of Public Safety,which is but
an agency of the State of Texas In the district and Inferior courts in appeals and actions arising from the operation of the Safety-ResponsibilityAct.

We have been unable to find any general duties placed upon the district attorneys of the State to represent the State in civil actions In the district or Inferior courts of the counties or districtswhich they represent. The duty, powers and responsibilitiesof the district attorneys depend upon the statuteswhich create theirpositions, and in each particular instance the statute creating the office of the district attorneymust be referred to, to determine if such district attorneyhas the duty to represent the Department of Public Safety in the appeals and actions above referred to.

Criminaldistrict attorneys exist In the State of Texas In lieu of the district and county attorneys In the county in which theyhave been established. Neal v. Sheppard, 209 S.W. 2d 388 (Tex. Civ.App. 1948); Art. P S 21 T Const. They succeedto the powers of both the d&l& a::' county attorneys in such countiesand, accordingly,under the power generally given to the county attorney by the provisions of Section 21 of ArticleV of the Texas Constitution,would have the duty to represent the State in all cases In the dlstrict and inferior courts in their respective counties.

Our holding 'maybe summarizedas follows: Any county attorney has the duty to represent the State in appeals and actions resulting from the operations of the Safety-Responslbility Act, since the Department of Public Safety Is the agency affected and is an agency of the State of Texas. Criminaldistrict attorneys,because of their successionto the powers of the county attorneys In the counties in which they are created, have the same duties as county attorneyswith respect to actions arising from the Safety-ResponsibilityAct. District attorneys have dutieswith respect to the civil actions arising from the operation of the Safety-ResponsibilityAct in accordancewith the Individual statutes creating their position, there being
no general statute concerningor governing their duties in the realm of representationof the State.Honorable Homer Garrison,page 3. (w-325)

SUMMARY

Countyattorneys and criminal district attorneys shall represent the State (Departmentof Public Safety) In local courts In appeals and actions resulting from acts and orders of the Department of Public Safetypursuant to the SafetyResponsibilityAct (Article6701h,V.C.S.). The duties of district attorneys in this respect depend upon the specifla legislative act creating their position.

Very truly yours,

WILL WILSON Attorney General of Texas

JHM:zt

APPROVED:

OPINION COMMITTEE

Geo. P. Blackburn, Chairman Mrs. Marietta McGregor Payne B. H. Timmins, Jr. Fred Werkenthin Assistant

REVIEWEDFORTHE ATTORNEY GENERAL BY: James N. Ludlum