OFFICEOFTHEATTORNEYGENERALOFTEXAS AUSTIN

fionornble

C. N. Covnesa stateknd:ciitor Austin,Texas

Dear Sir:

"We 8x33 no3 onakin of aacount;

an4 r

G AssistantDistrict Attorney

- fjji+i District 

### 3,000. 3,000. 7 AsxlstsntDistrict AttoXney

- 53ra Dist??lct 2,700. 2,700.

### Bon.‘~c.

Ii. COWOS#, PaGo 2

a

, 9
10

11 12HCXI, C. H. Camm~, Page 

### 3

paPd, an5 in,each im3itidu~linstense vhat years viaid be involved in a&lLtion to t!xose csvared by ';. the Appzwiation Act of tiie 47th La~iolatux~?~
IJa will refer to th-3

vkiotls mttors ccntalned in your request as Item 

### 3, Itea 4,,cta., using the ymber fos oaeh Itea that ym have used.

ArMole Q, SeotZcrn 21, of t'na Comtltution of Texas, is as PoilGws:

“A counf;g attoraey,Pm countks in which there is not a Fe&dent ci?imical district attornag, sha1.i be elootedby the qualifiedvoters or" each county,xrho

shabl be caw.~issFonecl by tine Governor, a&hold his off%00 for the tam of two yeam. In' ces~ of vacancrg

the Comfssiooers* Couzzt of the acxmty s'hali

h3ve pwcr to appol.n$ a county attorney untfL the next.geneP3~ekCtfOnn Th3 coiultg attorneyssha9.3

regpesent the State in a13. oases in the District and inferic~ courts in their mespectivecounties; but if any oomty 3M!S be includod in e distrLc,cl in Shkh 'kei+c

shall bo a di3- td.ck attorney,the rcspectfveduties of ditit~iot ottorneysand county attorneys &hall in such cour$ies be regulntecl by th8 Le@;isla%u.x-e. Y.3 Le&3lature nay protide for the.ek$tioa of dLstrict attorneys $.u auoh diStriCtSi GS Wig be d~eecled 3k?COSS3=, aEd 112al:o p32ovision

for the coqensntLo9 of dLstx4Lot at-. torncys,nril

oounty attorneys; provLdlod, dbtric~ attomo~s shall.

rooeive an annual salary of five .' ., hun&*ed dollars, to be psld by the State, and suoh fens, co1mis3ion3

nnb perquisitesa3 nay be provided by law. County attmmgs &?111 recefvo a3 aos@easotion

only such fees, ~m?zLis3LOns and perqulASm 8s may be prescr&bedby 1a'J." Arf;iclo 322, Yertionss Amotated CLvl.1

Statutes, Ls In psrt as follms:

'IThe follc~4.~~

Jud.Foial

DFstricts,in.thfs s&z&e shall each res-osetively elect a DistH.ctAttopmy, viz2

. . . u&h,

. . . twcnVy-r;eoo!d., a. thiXtietln,

. . . ninth,.

.. . th@tiy.-fix&h, ,..forQ-sorcn&h,

. ..fo$tyflf-~y-‘~~hLxd,

. . sevarkg-socori1,

. . .

:

#

:. .

. ‘,

### ‘79.5

Hon. C. il.

Cam3ss., Page 4,

2 : ’
; ‘ .

wgeu. 1. !n?Al; m3txict Ate@nays ..I:: 311 S~lC~l3l Dlsex?iuts cim~osad of only ona county,non. C. Ij. Cavmss, Pcge 6.



### Item 7 Is authorlzad& Article 326k-7,whichis in ai Po33o~s: "Sm. 2. That tho DPstslctAttOmey ofthe $&%I Sudic~al,

Dfstrlct or TO-xas tg authorlee? to -~ -' appotnta9 Assfs"tant District Attorney in additicxa to that authorizedby Stictio~~ 2 of' Article 

### 326% GSI oaxriodfomazrj in Vamon~s Civil. Statute of the State of Texas',

urrdor Act5 

### of 1331,Forty-s;c~oud Le&mitLlxe, pa&3 744, C@plm 291. 

### "Sec.2. The AssistantDistrict.httorneg providedfor in soctio?I 1 shall bo a duly 3icenWxI attorneyat 3av and a bona fide z%M.dent~ of’ Travis county an!3

shall poscess a33 IAm aua3ff~c.cstlons that era nw ratpS.rod

by low of the Di&rLot httiorney of 

### the 533?3

sud,iclal

lllatrlct

of t119 %ta;aGa of Tox3aj shall take the 03th 05 ofX=Qo.; shi~ll. bo subject to r~iijov~l

by tha wP13 0.f

the Distld~t AttOX'ney;aha

.. ’ . ... .

,

_ :~ i

_ /. ~.Hon. C. II. Cavness, Page 

### 8

"In any judicialdistrict ln this State consistingof mope than one county ln which there is situateda CFty or not less than thirty-four thousand (3&,000)Inhabitants and not more than'; forty-fourthousand (]:]I-,000) inhabitants,

accordins to tho last preceding Federal Census, the district attorney 3baLl appoint one assistant district attorney,provided the districtattorney &all furni3h data to the dlstrlct judge of his district that he 13 in neod of an as,sLstant and is himself unable to attend. to all the duties rcquired of him b3 law, and tbzt it is necessary to the best interest of the State that an assistant districtattorneybe appointed. Ss5.d assistant district attorney so appointed shall be a qualified resident of the district in which said appointment is made and shall give bond and take the official oath. The said assistantdistrict attornsy shall be a.qualiSiedlicensedattorney and shall~have

authority to performall the acts and duties of the dlstriat attorneyunder the laws of thl3 State; said appointmentshall be for such time as the district attorney shall deem best in the enforcementof the law, not to be less than. ,,
one month. Said assistant districtattorney shall be paid by the Comptrollerfor the time of actual _i :,' service renderedat the rate of !iVenty~five PIundred 'Dollars

### ($2500)

per annum: Said sum shall be paid upon certificates

of the districtattorney of said ,~;. district that said assistantdistrictattorney has parformedhis duties and is entit1e.d to~pag. The districtattorney of any such districtat any time ' ,I~ '_ '.' he deems said assistantunnecessary,or finds that .- he .is not attending to hi's duties as requfrcdby (~ law, by remove said person fron office by mertly writing to said district judge to that effect. The 49th Judicial District of Texas is compoacd of the Counties of D&nit, Zapata,:Jim Ho&g and Webb. In said district there was located the City of Iaredo, whose population, as shovn by the Ped8ro.l Census of lg!hO, was 39,274. aereforo, said JudicialDistrict came within,theprovisions of Article 324 of se,ld

statutes.

- .!. ":WQhave been unable"to' flnd.r*ny:,'statute~

spec~lfi&iy 'au- ' .thoplz$ngthoAssistantDi3trlc,t .Attorncg’ or Spoelal Investkgator 'for the 30th distrlct.referred to in item 10, or pr83cribing the q~lifications,~dutios and compensation

of the person appolnted to880

HonorableC. H. Cavness, Page 9

'suchpckitlon;

but, for the reasonshereinafter set forth, it is our opinion that the appropriationof a salary for such person is sufficient

authcrlty for bio appo3ntmont and belngps,ld the salary so provided,

That p&rt of Item 30 pertatiing to the 72nd District is authorized

by Art. 326-1, Sections 1 and 3 of which read as follows: "Sec. 1. The District. Attornog of the 72nd Judicial DLstr:ct of Texas, is horeby~ authorized to appoint one Assistant DlstrlctAttorney. "

. . . . %c. 3. The AssistantDistrkt Attorney provided for in Section 1 of tnbs Act shall rccetve an annual salary of $2,500.00,payable monthly, out of any money,not otherwiseappropriated,upon the.swornascount of such Assistant DistrictAttorney, approved by the District Attorney."~

‘.We have been unable to find any statute speclficallyauthorizingthe Assistant DistrictAttorney for the 47th dlstr5kt referredto in Item 11, 'or prescribingthe qualifications, duties and compensation

of the person appointed to au& position, but, for the reasonshereinafter set forth, it is our opinion that~ the appropriat.i.on

of a salary fo

r such person fs sufficientauthority for his appointmentand.belngpaid the salary so provided.

'Item 12 is authorizedby Article Xi&:-3 of said.statutes, which is,in part,as follox3:

"sec. 1. Dlafrict attorneys in each. judl-~ -~ cl.al district ti this 3tats containingfive or more countieshavin?; a cornblued

population,ac- '. cording to the FourteenthCensus of the Uaited :Sfatesof the year 1920, of not less than 98,740 nor in excess of 98,750, shall receive from the State as py for their servkces the sum of Five Hundred (~500.00)Dollars per annum, as nrovided

. .- by the constitution, and & addition thereto, and ln lieu of the fees, commissions, and perquisites provided~bylaw, shall recoivo from the S.tate the sum of Ten ($10.00)Dollars for each of the first 350 days of every calendaryear as compensation for t3ttcasllng

examlati~ trials,Habeas Corpus hearings, the sessions of the District Court of the district they regresent;.and for performing kuch other duties as~lmposo~by lav. -Tno corn-- pensationprovided for in thls:Aci shall be gaid monthly by:the State upon,warrants 'dra-311 by ~theBon. C. H:Cavmss, Pago 10Hon. C. H. Cavness, Page 11

raking the total populationof oaid’judlaial district 98,743, and bringilx said districtwithin the provisionsof tho last above-quoted

st%tuts. Article III, Section 44, of the Constitution, irovides as follous:

“The Legislatureshall provide by law for the coskpensation

of all officers, servants,agonts and public COntP3ct3P23, not provided for Ln thin Const-ltutioq

but shall not grant extra coqensation to any officer,agent, servant, or public contractors,

after such public service shall have been pcrfomed or contract entered into, for the parfomance of the sake; nor grant, by appropriation or otherwise, any ano;mt of ~omy out OP the I Treasury of the State, to any individual, on a claim, real or pretended,when the sane shall not have been provided for by pm-oxisttig law; nor employ any one l.~

the nam? of tie State, anles3 authorizedby pre-existing law.
It is our opinion that each and all of the appropriations reserved to J.n

your request for whioh we have pointed out statutes specfffcully

creatlsgand authorizing the offtoialpositions for which atid,approriationsmere made were ln coapliance~vaitb sold Art, III, Sec. 4

$ , of the Constitutionof Texas, therefore,that they were leSa1. Further,-Art.‘V, Sec. 21, of the Constitution, ,and.Art. 322, of Vernon*sAnnotated Clvll Statutes,hereinabove set out, authorizeeach and all of the- offices of districtattorney Involved herein, emI t&e various statutes referred to legally create such officialpositions. Practicallyall of the statuteshereinaboveset out which authorize the appointment of assistantdistrict attorneys contain the provision @at said asslstantdistrictattorneys shall have authority to perform all the acts and~dutios of the districtattorney under the laws of this State. Those of said statutes

where such specific authority Is not given to aoskstant districtattorneysauthorize said assistantdistrictattorneys to pcrfom tho sorvfces then district attorney 1s authorized to, perfom. Therefore,it is our opinirm that each and all of said assistantdistrictattorneys were l~gallyauthorized and that said ~~appropi4atlons

were legal.
As to;Item 3,.‘.

the Supre.k ‘Court in ths case of -2&c ,P&o Rfchapds, et al, 155 9. 1~..(2cI),~597, hold that the

. ,..~ *a

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.. . . .. :_ ”

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:
. .-A I-- i --d---1_;-- .,

Ron. C. Pi,

Cavnflss,

Peg12 12

w?ovisfonsauthariz& the oretltioa of o&~~tLllnal mdop oort8iQ Ooditi-. sn 1583 g adopted.

an Ret which contained a defini~lonof oritinald:stx?ict ottoma. That Act providedaa follcws;

I,
%n. C. B. Ctwness, Pega 33Hon. c. H.~CaVness,Page 14

in the c&e 0P Commlssloners~ Court of LInestone CGIlnty V. CiaI?i%tt,

236 s. I?.

970, Texas COlZlliSslon of Appeals, the court da:
"'Section 56, Art. 3, vas Cl part Gf the o~lglnal Constitution of 18*?6, There 1s nothlw in t'ne

lan,ggaua~;i?

of that section suggastlveof a litnitation cf the effect of the provfoion against, CrGntlon OS officos by local or special law tG any cla3s 0~ classes or"

offlccs,nor Is there a suggastlon 'of

such lfmltati'on

in any other pGrtion of,tbe Constitution. The litlitation rofel~s

to_glacesonly, an?l not to claones of-Tij;-ficors. 2233 places In uiilch the.croation

of officesby sGccia1 or local Taw is prohibitedare col-nties, cities, towns,~end oloctlm .md school districts.

%nder Ax&le 5, Section 29, of ourState Constttution,

supra, the LegislatureIs given the ~' power to create the office, of distz4ct attorxneyln such districtsas it may deem neccosary and to deJ fine the powers and duties of such ol'flcc?s.This

section of the Csnstltuticn would also authorize the Legislatureto create tho office OS districtattorney ln a specific judicialdistrictby its name or.any other fozn of do&nation and by the 3ame token it would authopiee the Le@.sl.aturc to allou ~thedistrictattorney of a particularnamed dl~t:~lc~t to employ assistanta.

. "It. is our opinion that bur State Cdnstltutlon does not prohibit the tsgislaturofrom enactlnga local or opocial law creating the ofSice of assistant districtattorney. Tho Constitution a009 pro- ~hlbittho creation of county, city, toxin, election districtandnschGGldistrict offices by local or ~. opeclal lav; ; krticle.25,. Code of .Crlminal

Procedure of the State of’ '..,~Texas,'.~preacri~es't~;e!dutles ofCistrl$t Attorneys as follows: %auh distr~~t~attornag ah&: reProcent'~the State ln all ,'.. crlmlrzl~~casca

ln'the d.lotN.ct

cGurt3 of his dlstrlct, 0 except iu~cnsesvhero hc has .becn, before his election, '. " <

I,Hon. C. Ii. Cavness, Page 15

.employed

adversely. Ifhen

any crinhal proceeding Is had before an exanfnlng court In his district or

, before a judgeupon bsbeas corpus, and he is not%- ; fied of the sane, and is at the tine within the ;. county where such pmccsdlng is had, he ,shallrepresent the Stats therein,unless preventedby other officialduties."
Acts of,

the 47th Legislature,1941, Ch. 148, p. 207, containod the Judiciary Appropriation,

a part of which was as follows:.
"Be it enactedby the Lcgis1otur.e of the State of Texas

.. "

. . .

‘%or the Years Endlng August 31, < '. ~ 1942 Aw-$ 31, (I

. . .~ . :Xi, Cmpensation of on0 Asststant'District

Attor- > neg or one SpecLal Inventigatorfor each of the follonlngJudicial Districts:Thirtiethand Seventy-necond,at

$1;800. per .year.........,....;....3,600.00 "11. Salary of Assists.& District Attorney in Forty-seventh Mstric,t............~.....2,510.00 "

.. 2,510.OO "Section1. Thzt the several sum of nokey .herelnspecifled

or so much thereof as may be coceasary,are hereby approprLatedout of any moneys 'in the State Treasuq, not otherwiseappropriated, for the purposesherein Indicatedas follows:'

"

. . Supreuc Gonsml duties, In the case of Terre11 vs. Sparks, 135 S. W. 519, the

Court had mder considerationthe pouer of the Attorney to employ an attorney to assist him in performing certain said attorneynot b&.ng an AssistantAttorney General and the only authority for his enploymentbeing fomd In a bill appropriating

suds for said purpose. Sec. 1 of said appropriation bill reads as follous:non. C. II, Cavnesa, Page 16

‘For the purpose of enforcingany and all laws of the.

state of Texas, and for the purpose of paying any and all necessary cxpenscs in, ;:. bringing suits or paying cxponses in prosecuting same, there is hereby appropriated out of any money In the stc?tc treasury, not othoruiseappropriated,the sirzi of $25,ooo.oa or 50 much thereofas map be necessary, to bo cxpendcd under the dlrcctionof the Attorney Goncral by and with the approval of the ,Govcrnor, ana to be paid upon warrants drawn by the coqtrollar of public accounts Attorney Gcnoral.

I’ on vouchersapprovedby the

In holding that the Attornog General uas authorizedby .said appropriation

bill to employ an attorney to asslst’in the performance

of said duties, the court la.aid dovn the following principles,oflaw vhhloh. are applkable here: “The next importantquestion that arises in the case is: .3&d

Gou. Campbelland Atty. Gen. Lightfootauthorityunder the statute to employ Terre11 as special counsel to assist the Attorney General 5.n

the grosccutl@n of the cases named and other cases which might arise? The pouer to make the contractmust be derived from the statuto ltself; therefore

we must construs its terms to ascertainwhether,or not that authority is given. For the rule of construction by \zhLch

we aro to be governed,we copy from Sutherlandon Statutory Construction,

11 341, as follous: whmonovcr a paver is given by statute, everything necessary .to make it effectual or requisite to attdn the ” end Is implied. It in a well-establishedprlnciple that statutes containinggrants of power are to be constrdodso as to .lnclude the authority to do all thirgsnecessary to accotipllsh the object .of the grant. The grant of an express pouer carrieswith it by neceosnry implicationevery other power necessary and proper to the cxecution of the potrer expresslygranted. Where the law commandsanything to be done, it authorizes the performanceof whatevermay be necessary for executing.

its commands.

1 ‘By. the texms of the statute of the ThirtyFirst Eeglolrturo

before copied, tho duty is inpoocd upon the Attorney Ganeral and the pouicr 10Bon/C. H. Cavncss,page 17 ,

conferred

upon him to prosecute suits against those who are unlawfully claiml,nG the public lands of the state, for it Is evident from the torms of the;act that it was in the mind of the LeGlslature whenit enacted this law that condltloiis requireda vl~orous prosecutionof tine state's claims against those who were lnfrlr@n~ upon the rights in the public lands of the state. In view of this duty, tha lanDago, 'and for the purpose of paying any and all necessary ~expenses

in brin$ng suits OP payln,g expenses in pro3ecutlnGsame,( empowers the Attorney Gsncral, with the concurrenceof the Governor, to expend the sum appropriated or so imuch

thereofas may be necesi' sary to accomplish the purpose specified in the act, and the cost of whatevermight be necessary l.n the discharge of the duties tlmo Imposed upon him Is lneluded in the term 'expense.' The second section of the act shows that in the mind of the Legislature there was an immediate necessity for theAttorney General to make applicationof this fund to the .protectlon of the.publiclands of the state. Suits were authoriced~

to be brought by ~thelan@age, 'to pay the expense of.brin&ng suits and also ln prosecut-; j IT@ the seine.''Cutof this requirementthere arose the necessityand the power of said officers to do, the thl.n~s

that were required to be dane in order to instituteand to prosecute those suits, and It requires no argument to show that the services of attorneyswer$ necassary to the performance of, this duty.

. . ; The law imposes certain duties upon a District Attorney. In the performanceof said duties, he may, or he may not, need tho servicesof someone'clse. When the Legislaturepassed the appropriationblll here under consideration, it 1s evident that It was in the mfnd of the Legislaturethat the conditionswere such that the DistrictAttorneys in the districtsnamed were in need of assistance in the performanceof the duties placed upon them by law. Therefore,

even though it was not set forth in said appropriation bill what the qualifications of said assistants should be, or what duties they Vare to perform, said DistrictAttorneys were authorizedby said approprlatlonsto expend the suus appropriated, or so much thereofas might be necessary for such purpose, in performlng the duties of thciroffices by employing the assistants thereinprovided for.Hon. C. Pi. Cavness, Page 18

Thare is no general'statuto creating the office of Assistant DistrictAttorney that is applicable to all DistrictAttorneys. There ara numerous statutes creating the ofSice of Assistant DistrictAttorney and Assist-ant CriminalDistrictAttorney that are applicableto districtsnpecifically named or identlfied,by other descriptions

such as populationbrackets, or number of counties embracedtheredn,etc. It Is our opinion that, where the only authorityconferred upon the DistrictAttorney of a designated district to appoint an AssistantDistrictAttorney is Sound in an appropriation

bill vhich makes an appropriation to pay the salory of an Assistant DistrictAttorney, the assistant thus authorieed to be appointed is not in fact an officerwith all the powers and dutios OS his prlncipl, bec~usc no such office hs3 bepn, or can be thus, createdby the Legislature. The mere appropriation by the Legislatureof money for the payment of compensationto the incumbentof a specified posj.tion

does not have the affect of creating

an office, or of glvlng such'lncumbent~ the character of an officer. Tho only way an oSfice can be createdby the &egislature Is by a statuteduly passed for .that purpose& Such an assistant as is here bea consideredis merely an employee,and not an officer since he is given none of the powers of his principal and is not authorizedto perform any of the duties of his principal. Therefore,since this position is not an office and the person appointedthereto Is only an employee,his compensation may properly be provided for In the appropdation bill, and suoh appropriation bill is sufficient authority for such appointmentand for the State to pay .the

appointee the salaryprovided thcrein.~

, ,Xt hisouropinio$,therefore, that each and,all of the appropriatlons'harelnabove referred to were in all things legal, which conclusion-makes it unnecessarySor us to answer any of the other questions~propounded by you. fruoting that this satisfactorily answers your inquiry, we remain, Your8 very ~truly,

I ATTORHEX CEXMAL OF

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