### THEA~~ORNEYGENERAL
OF TEXAS

November 

### 30,1959

Honorable Bill Thomas County Attorney OpinionNo. WW-750
Taylor County Courthouse Re: Whether the Commissioners' Abilene, Texas Court of Taylor Countyhas the right of election between the employment of an Assistant District Attorney under Article j'26hor 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' Courthas the right of electionbetween the employment of an AssistantDistrict Attorneyunder Article 326h or Article 326k-jg?

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

"Sec. 1. In any judicialdistrict in

this State composed of more than one county and in which there is a city having an actual population of 50,000 inhabitantsor more, the drstrlct attorney shallhave 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 shallperform suchduties as shall be required of them by the district attorney and under the direction of the district attorney shallhave all the authority thatmay be exercisedby the district attorney. The district attorney shalluse one of said assistants as an investigatorto assist In the performance of the duties of his office, in addition to whatever other duties may be required of such assistant. Said assistantsHonorable Bill Thomas,page 2 (WW-750)

shall take the constitutionaloath of office and serve at the will of the district attorney, not to exceedunder 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 salariespayablemonthly. The district attorney shall ascertain the population of any city in his district necessary to be ascertainedunder this Actby making application to the mayor of any such city for a certificate as to the population of such city. It shallbe the duty of any suchmayor to ascertainby some reasonable accurant estimate the population of any such city, and his certificate to sameunder oath shall authorize the district attorney to assume its correctness and act upon the informationcontained in such certificate in making any appointment of an assistant or assistants under this Act."

In the absence of a certificatefrom 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, Callahanand 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 Countywould come under the above statute. However, Article 326k-39,passed in 1957, provides:

"Section1. The district attorney for the 42nd Judicial District and the districtattorney of the 104th Judicial District with the consent of the district judges of the 42nd JudicialDistrict and the 104th Judicial District, respectively, and of the CommissionersCourts 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 Actmust be duly and legally licensed to practice law in this State. The assistantmay be required to give bond.

"Sec.

### 3. The assistantprovided 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 Eth Judicial Districts and by the Commissioners Court of each of the counties comprising the 42nd and 104th JudicialDistricts. In addition to his salary, the assistant shallbe 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 attorneyprovided for in this Act shallbe 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 specificArticle dealing with the 42nd and 104th Judicial Districts only. Both Articles 326h and 326k-39have as principal subjectmatter Assistant District Attorneys; 326hbeing a general statuteand 326k39 being a specific statute. A comparison of Article 326h and 326k-39 reveals various conflictsbetween 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-39provides that all Commissioners1 Courts in each of the counties comprisin8 the 42nd and 104th Districtsmust give approval. Also, 32 k-39 provides that the district judges of the two judicial districtsmust give their consentwhile 326h is silent on this matter.c

HonorableBill 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-39provides for a salary of not less than $3,000 nor more than $4,000per yearwhich shallbe paid by the various counties in the districtsprorated according to population.

On the effect of a specific act conflictingwith a prior general act, oneauthority states:

"Thisrule of constructionhas found frequent and apt illustrationwhere one of the supposedly conflicting statutes was general ,in its terms and the other specific. In such
a case it is universallyheld that the specific statutemore clearly evidences the intention of the Legislature than the general one, and therefore that it will control. In such a case, both statutes arepermitted to stand--thegeneral one applicable to all cases except the particular,,one

embraced in the specific statute. (Townsendv. Terrell, 118 Tex. 463, 16 S.W.id 1063 [1929).

Thus, it is our opinion that this is the proper rule of construction that shouldbe appliedhere. It is also important to note that Article 326k-39was passed thirty years after Article 326h, and certainly showsmore 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 electionbetween employment of an AssistantDistrict Attorney under Article 326h or Article 326k-39. The District Attorneysmust hire the assistant with the consent of the Commissioners'Court and the District Judgesunder Article 326k-39.

JMF:mfh Yours very truly,

WILL WILSONHonorable Bill Thomas,page 5 (WW-750)

APPROVED:

OPINION COMMITTEE W. V. Geppert, Chairman

James Irion

IolaWilcox

Gordon C. Cass

REVIEWED FOR THE ATTORNEY GENERAL BY: Leonard Passma- e