TIIE ATTOI~EY GENEIZAL OF %-EXAS

April 6, 1962

Mr. Wayne Burns CountyAttorney Howard County Big Spring, Texas Opinion No. W-1302
Re: Whether the CityAttorney or the County Attorney has the primary responsibility inprosecuting 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 CityAttorney or -the CountyAttorney has the primary reaponslbility in prosecuting criminal cases appealed from the Corporation Court to.theCounty Court inwhkh a trial de novo is required.

Section 21 ofArticle 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;.butif a,nycounty shall be included in a district in .whidhthere ahall be a District Attorney,.the respective duties of District httorneys and County Attorneys shall in n1q?h.countieabe regulated by the Legislature.

. . ..*’(Emphasisadded) Article 869, Vernon’s Code of Criminal Proce+e provides that:

“Allprosecutions,in a corporation co&t ahall be conductedby the city attorneg..ofslich 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-sodesires, also npresent the State in such Prosecutions. In such cases, the safd county attorney shall .no’t be entitled .torqce%ve any fees or other compensation whatever for said’services. The countyMr. Wayne Burns, Page 2'(WW-1302)

attorney shall have no power to dismiss any prosecutionpending In said court unless for reasons filed and approved by the recorder." (Em~haslsadded) -\ 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 Involvingviolations of the penal laws of this State. The court in its opinion stated thatpursuant to the provisions of Section 21 ofArticle V of the Constitution of Texas: 3,

. . . Itwas the.rinht and duty ~ofthe ~countyattorney to represent the state
. . . '"The corfioratloncourt of the city 0f~Beaumontbeing 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.towhich 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 inwhich oersons are charned with violationMr. Wayne awns, Page 3 (Kid-13C2)

of-the criminal laws of the state, ofwhich the corporation court has .iurlsdlctlonconcurrentlywith ustlce courts;
. . ." (Emphasis addedj 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 CountyAttorney.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~tothe dlstrlct,court.

However; an exception to this statement is found InAttorney General's Opinion No. V-1147 (1951)wherein this office held that the County Attorney has no duty to ~representtheprosecution In Corporation Court when the offense is for a violation of.a city ordinance and no penal stat,uteof the State Is Involved. In such instances the.prlmary~sponsibility of prosecuting the vl6latlon of a city drdlnance Is placed upon the CityAt,torneyand participationby the County Attorney'la merely dlscretlonary or permissive a8 Isevidenced by the la~fguage ofArticle 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 theCoun.ty,Attorneyto represent the.

State in a~11

protiecutlonafor .violationOf 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 .thatthe 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"neltherthe co&titutlonal nor statutori provisions he=tofore cited contemplate anyone other than the 'CountyAttorney a~ssumlngthe 'kesljonslbility and duty of prosecuting criminal cases before the County Court,Mr. Wayne Burns,'Page 4 (WW-1302)

itwould, 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,cerelyyours, WILL WILSON

PB:kkc Pat Bailey Assistant

APPROVED OPINSON COMMITTEE

. W..V. Geppert, Chairmall Morgan Nesbltt Cudley McCalla T:?omas

Burrus FrankBooth
REVIEWEDFORTHEATTORNEYGENERAL BY: Houghton Brownlee, Jr.