THEA~~ORNEYGENERAL 

OF TEXAS 

November 30, 1959 

Honorable Bill Thomas 

County Attorney 

Opinion No. WW-750 

Taylor County Courthouse Re: Whether the Commissioners' 

Abilene, Texas Court of Taylor County has 

the right of election between the employment of an 

Assistant District Attorney 

under Article j'26h or Article 326k-39, Vernon's Civil 

Dear Mr. Miles: Statutes. 

You have requested the opinion of this office on the 

following question: 

I! 

. . . whether or not the Commissioners' 

Court has the right of election between 

the employment of an Assistant District 

Attorney under Article 326h or Article 

326k-jg? . . ." 

Article 326h, Vernon's Annotated Civil Statutes, provides: 

"Sec. 1. In any judicial district in 

this State composed of more than one county 

and in which there is a city having an actual population of 50,000 inhabitants or more, 

the drstrlct attorney shall have authority, 

with the approval of the commissioners' court 

of such county in which said city is situated, 

to appoint not more than two assistants, who 

shall be licensed to practice law in this 

State, and shall perform such duties as shall 

be required of them by the district attorney 

and under the direction of the district attorney shall have all the authority that may 

be exercised by the district attorney. The 

district attorney shall use one of said assistants as an investigator to assist In 

the performance of the duties of his office, 

in addition to whatever other duties may be 

required of such assistant. Said assistants 
Honorable Bill Thomas, page 2 (WW-750) 

shall take the constitutional oath of office 

and serve at the will of the district attorney, 

not to exceed under any one appointment the 

maximum time fixed by the Constitution for 

such officers. 

"Sec. 2. The salary of each of said 

assistants shall not exceed three thousand 

dollars ($3,000.00) per year, to be paid by 

the county In which said city is situated 

by warrant drawn on the general fund thereof, 

all salaries payable monthly. The district 

attorney shall ascertain the population of 

any city in his district necessary to be 

ascertained under this Act by making application to the mayor of any such city for a 

certificate as to the population of such city. 

It shall be the duty of any such mayor to 

ascertain by some reasonable accurant estimate 

the population of any such city, and his 

certificate to same under oath shall authorize 

the district attorney to assume its correctness 

and act upon the information contained in such 

certificate in making any appointment of an assistant or assistants under this Act." 

In the absence of a certificate from the Mayor of Abilene as to the actual population of that city, we will use the 

Texas Almanac. According to the 1958-59 Edition, the 1957 estimated population of Abilene, Texas, the county seat of Taylor 

County, was 65,000. Taylor County is located in the 42nd and 

104th Judlclal Districts. The 42nd Judicial District is composed of Taylor, Callahan and Shackelford Counties, and the 

104th District is composed of Taylor, Jones and Fisher Counties. 

Under these facts, it would seem apparent that Abilene 

and Taylor County would come under the above statute. However, 

Article 326k-39, passed in 1957, provides: 

"Section 1. The district attorney for the 

42nd Judicial District and the district attorney 

of the 104th Judicial District with the consent 

of the district judges of the 42nd Judicial District and the 104th Judicial District, respectively, and of the Commissioners Courts in each of 

the counties comprising the 42nd and 104th Judicial Districts, are hereby authorized to appoint 

an assistant district attorney for the district 

attorneys of such districts. 
Honorable Bill Thomas, Page 3 (w-750) 

"Sec. 2, The assistant district attorney 

provided for in this Act must be duly and legally 

licensed to practice law in this State. The assistant may be required to give bond. 

"Sec. 3. The assistant provided for In this 

Act shall receive a salary of not less than Three 

Thousand Dollars ($3,000) nor more than Four Thousand Dollars ($4,000) per annum, said salary to be 

flxed by the district attorneys of the districts 

and ap roved by the district judges of the 42nd 

and 10 E th Judicial Districts and by the Commissioners Court of each of the counties comprising the 

42nd and 104th Judicial Districts. In addition 

to his salary, the assistant shall be allowed the 

actual and necessary expenses Incurred in the proper discharge of his duties, never to exceed 

Eleven Hundred Dollars ($1,100) per annum. 

"Sec. 4. The salary and expenses of the assistant district attorney provided for in this 

Act shall be paid out of the general funds of the 

counties, prorated according to the population of 

the counties composing the judicial districts." 

As this Statute sets out, it is a specific Article dealing with the 42nd and 104th Judicial Districts only. Both Articles 326h and 326k-39 have as principal subject matter Assistant District Attorneys; 326h being a general statute and 326k39 being a specific statute. A comparison of Article 326h and 

326k-39 reveals various conflicts between the two. Some of 

these conflicts are: 

'(1) Number of Assistants. Under Article 326h, it Is 

possible to have four (4) assistants in Taylor County, while 

326k-39 limits the number to one (1) who will serve as assistant to both District Attorneys. 

(2) Method of appointing. Under 326h, only the Commissioners' Court of the County in which a city of a population 

of 50,000 or more shall give approval, while 326k-39 provides 

that all Commissioners 1 Courts in each of the counties comprisin 

8 

the 42nd and 104th Districts must give approval. Also, 

32 k-39 provides that the district judges of the two judicial 

districts must give their consent while 326h is silent on this 

matter. 
c 

Honorable Bill Thomas, page 4 (WW-750) 

(3) Salaries. Article 326h provides a salary not to 

exceed $3,000 per year for each assistant to be paid by the 

county in which the city of 50,000 population is located, while 

326k-39 provides for a salary of not less than $3,000 nor more 

than $4,000 per year which shall be paid by the various counties in the districts prorated according to population. 

On the effect of a specific act conflicting with a 

prior general act, oneauthority states: 

"This rule of construction has found frequent and apt illustration where one of the 

supposedly conflicting statutes was general 

,in its terms and the other specific. In such 

a case it is universally held that the specific 

statute more clearly evidences the intention 

of the Legislature than the general one, and 

therefore that it will control. In such a case, 

both statutes are permitted to stand--the general one applicable to all cases except the particular,,one embraced in the specific statute. 

(Townsend v. Terrell, 118 Tex. 463, 16 

S.W.id 1063 [1929). 

Thus, it is our opinion that this is the proper rule 

of construction that should be applied here. It is also important to note that Article 326k-39 was passed thirty years 

after Article 326h, and certainly shows more clearly the leglslative intent in this regard in the 42nd and 104th Judicial 

Districts. 

SUMMARY 

The Commissioners' Court of Taylor County 

does not have the right of election between 

employment of an Assistant District Attorney 

under Article 326h or Article 326k-39. The 

District Attorneys must hire the assistant 

with the consent of the Commissioners' Court 

and the District Judges under Article 326k-39. 

JMF:mfh 

Yours very truly, 

WILL WILSON 
Honorable Bill Thomas, page 5 (WW-750) 

APPROVED: 

OPINION COMMITTEE 

W. V. Geppert, Chairman 

James Irion 

Iola Wilcox 

Gordon C. Cass 

REVIEWED FOR THE ATTORNEY GENERAL 

BY: Leonard Passma- e