TIIE ATTOI~EY GENEIZAL 

OF %-EXAS 

April 6, 1962 

Mr. Wayne Burns 

County Attorney 

Howard County 

Big Spring, Texas Opinion No. W-1302 

Re: Whether the City Attorney 

or the County Attorney has 

the primary responsibility 

in prosecuting criminal 

cases appealed from the 

Corporation Court to the. 

Dear Mr. Burns: County Court. 

You have Fqueated an opinion fro! this office 

upon the question of whether the City Attorney or -the 

County Attorney has the primary reaponslbility in prosecuting criminal cases appealed from the Corporation Court 

to.the County Court in whkh a trial de novo is required. 

Section 21 of Article V, Constitution of Texas, 

provides in part that: 

II . . . The C.ounty Attorneys shall represent 

the State in all caaea in the District, and infezlor courts in their respective counties; .but if 

a,ny county shall be included in a district in 

.whidh there ahall be a District Attorney,. the 

respective duties of District httorneys and County 

Attorneys shall in n1q?h.countiea be regulated by 

the Legislature. . . ..*’ (Emphasis added) 

Article 869, Vernon’s Code of Criminal Proce+e 

provides that: 

“All prosecutions, in a corporation co&t 

ahall be conducted by the city attorneg..of slich 

city, town or village, or by his deputy. m 

countv sttorneg of thk county in which said ‘city, 

town or village la situated w. if he -so desires, 

also npresent the State in such Prosecutions. 

In such cases, the safd county attorney shall 

.no’t be entitled .to rqce%ve any fees or other compensation whatever for said’ services. The county 
Mr. Wayne Burns, Page 2'(WW-1302) 

attorney shall have no power to dismiss any 

prosecution pending In said court unless for 

reasons filed and approved by the recorder." 

(Em~hasls added) 

-\ Article 26, Vernon's Code of Criminal Procedure 

provides In part that: 

"The county attorney, shall attend the 

terms of all courts In his county below 

the grade of district court, and shall represent the State In all criminal cases under 

examination or Drosecution in said county; . . .'I 

In the case of Howth v. Green, 90 S.W. 211 

(Civ.App. 1905, error ref.) the court had before it the' 

question of the authority of,the county attorney to 

reprerent the State in cases before the Corporation Court 

Involving violations of the penal laws of this State. 

The court in its opinion stated that pursuant to the 

provisions of Section 21 of Article V of the Constitution 

of Texas: 

3, . . . It was the. rinht and duty ~of the 

~county attorney to represent the state . . . 

'"The corfioratlon court of the city 

0f~Beaumont being one of the Inferior 

courts of hhe state referred to in the 

Constitution, the right of the county 

attorney to appear in said court, either 

by himself or his lawfully appointed 

deputy, and represent the,atate in all 

cases pending thereln.to which the state 

la a party, Is Indisputable. This riaht 

IS also an exclusive right. If the county 

attorney, or his lawfully authorized deputy, 

appears and offers to represent the state 

In such ca~sea, neither the city attorney 

nor'any other officer or attorney has the 

right to take any part in such prosecution. 

Harris County v. Stewart, 91 Tex. 146, 

41 S.W. 650. This is clear as to cases 

in which oersons are charned with violation 
Mr. Wayne awns, Page 3 (Kid-13C2) 

of-the criminal laws of the state, of which 

the corporation court has .iurlsdlctlon concurrently with ustlce courts; . . ." (Emphasis added j 

By the expPess terms of the prevlously quoted 

constltutlonel and statutory provisions,, and under the 

decision of the courts In such cases as Howth v. Green, 

supra, it appears clear that the County Attorney.has the 

primary duty and responslbillty of representing the State 

In all.cases lnstltuted for the violation of criminal lawa 

of the State In all courts In his county inferior ~to the 

dlstrlct,court. 

However; an exception to this statement is found 

In Attorney General's Opinion No. V-1147 (1951) wherein 

this office held that the County Attorney has no duty to 

~represent the prosecution In Corporation Court when the 

offense is for a violation of.a city ordinance and no 

penal stat,ute of the State Is Involved. In such instances 

the.prlmary ~sponsibility of prosecuting the vl6latlon of 

a city drdlnance Is placed upon the City At,torney and 

participation by the County Attorney'la merely dlscretlonary or permissive a8 Is evidenced by the la~fguage of Article 

869., whlch.states that,the County Attorney . . . may, 

If.&! so desires, also represent th..State in such prosecutio.ns . . . .'I . . 

Consequently, we are of the' opinion that, In 

view-of, the constltutlonal.and statutory provlqlons pertalnlng to the duties of the County Attornek, It. ia the 

primary re'aponsiblllty and duty of the Coun.ty,Attorney to 

represent the. State in a~11 protiecutlona for .violation Of 

the penal.laws of this State when such. vlolatloqa~ are 

being prosecuted in any of the courts of the county~below 

the level: of'diatrlct cdurt.. The exception to th$a rule 

Is .that the County Attorney does,hot have the primary 

respdnslblllty and duty of repreaPnting,the State In. those 

caees,in C.otiporatlon. Court whicb.concern violations of city 

ordln'ances rather than.penal laws of.tlils State.. 

.Aa"nelther the co&titutlonal nor statutori 

provisions he=tofore cited contemplate anyone other than 

the 'County Attorney a~ssumlng the 'kesljonslbility and duty 

of prosecuting criminal cases before the County Court, 
Mr. Wayne Burns,'Page 4 (WW-1302) 

it would, In our opinion, necessarily follow that the 

primary duty and nsponslbillty of prosecuting appeala 

from Corporation Court to County Court would rest upon 

the County Attorney. 

SUMMARY 

The primary responsibility and duty of 

prosecuting cases appealed from a Corpoyatlon Court to a County Court Involving 

violations of the penal laws of this State 

rests upon the County Attorney. 

Sln,cerely yours, 

WILL WILSON 

PB:kkc 

Pat Bailey 

Assistant 

APPROVED 

OPINSON COMMITTEE 

. W..V. Geppert, Chairmall 

Morgan Nesbltt 

Cudley McCalla 

T:?omas Burrus 

Frank Booth 

REVIEWEDFORTHEATTORNEYGENERAL 

BY: Houghton Brownlee, Jr.