OFFICEOFTHEATTORNEYGENERALOFTEXAS 

AUSTIN 

fionornble C. N. Covnesa 

state knd:ciitor 

Austin, Texas 

Dear Sir: 

"We 8x33 no3 onakin 

of aacount; an4 r 

G Assistant District Attorney 

- fjji+i District 3,000. 3,000. 

7 Asxlstsnt District AttoXney 

- 53ra Dist??lct 2,700. 2,700. 
Bon.‘~c. Ii. COWOS#, PaGo 2 

a 

, 9 

10 

11 

12 
HCXI, C. H. Camm~, Page 3 

paPd, an5 in,each im3itidu~l instense 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 elooted by the qualified voters or" each 

county, xrho shabl be caw.~issFonecl bytine 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 

attorneys sha9.3 regpesent the State in a13. oases 

in the District and inferic~ courts in their mespective counties; but if any oomty 3M!S be includod in e distrLc,cl in Shkh 'kei+c shall bo a di3- 

td.ck attorney, the rcspectfve duties of ditit~iot 

ottorneys and 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 perquisites a3 nay be provided by law. County attmmgs &?111 recefvo a3 

aos@easotion only such fees, ~m?zLis3LOns and perqulASm 8s may be prescr&bed by 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.ct Attopmy, 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 DPstslct AttOmey ofthe 

$&%I Sudic~al, Dfstrlct or TO-xas tg authorlee? to -~ -' 

appotnt a9 Assfs"tant District Attorney in additicxa 

to that authorized by Stictio~~ 2 of' Article 326% GSI 

oaxriod fomazrj 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 Assistant District.httorneg 

provided for in soctio?I 1 shall bo a duly 3icenWxI 

attorney at 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 bytha wP13 0.f the Distld~t AttOX'ney; aha 

.. ’ 

. . 
. . . 

, 

_ :~ i _ /. ~. 
Hon. C. II. Cavness, Page 8 

"In any judicial district ln this State 

consisting of mope than one county ln which there 

is situated a CFty or not less than thirty-four 

thousand (3&,000) Inhabitants and not more than'; 

forty-four thousand (]:]I-,000) inhabitants, accordins to tho last preceding Federal Census, the 

district attorney 3baLl appoint one assistant 

district attorney, provided the district attorney 

&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 

district attorney be 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 assistant district 

attornsy shall be a.qualiSied licensed attorney 

and shall~have authority to perform all the acts 

and duties of the dlstriat attorney under the laws 

of thl3 State; said appointment shall be for such 

time as the district attorney shall deem best in 

the enforcement of the law, not to be less than. 

,, 

one month. Said assistant district attorney shall 

be paid by the Comptroller for the time of actual 

_i :,' 

service rendered at the rate of !iVenty~five PIundred 

'Dollars ($2500) per annum: Said sum shall be paid 

upon certificates of the district attorney of said ,~;. 

district that said assistant district attorney has 

parformed his duties and is entit1e.d to~pag. The 

district attorney of any such district at any time 

' ,I~ 

'_ '.' 

he deems said assistant unnecessary, or finds that .- 

he .is not attending to hi's duties as requfrcd by (~ 

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 Judicial District came within,the provisions of Article 324 

of se,ld statutes. 

- .!. 

":WQ have been unable"to' flnd.r*ny:,'statute~ spec~lfi&iy 'au- 

' .thoplz$ngtho AssistantDi3trlc,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 to 
880 

Honorable C. H. Cavness, Page 9 

'such pckitlon; but, for the reasons hereinafter set forth, it is 

our opinion that the appropriation of 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 Dlstrlct Attorney. 

" 

. . . . 

%c. 3. The Assistant Distrkt 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 otherwise appropriated, upon the.sworn ascount of such Assistant District Attorney, approved by the District 

Attorney."~ 

‘.We have been unable to find any statute speclfically authorizing the Assistant District Attorney for the 47th dlstr5kt 

referred to in Item 11, 'or prescribing the qualifications, duties 

and compensation of the person appointed to au& position, but, 

for the reasons hereinafter set forth, it is our opinion that~ the 

appropriat.i.on of a salary fo r such person fs sufficient authority 

for his appointmentand.belng paid the salary so provided. 

'Item 12 is authorized by 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 containing five or 

more counties havin?; a cornblued population, ac- '. 

cording to the Fourteenth Census of the Uaited 

:Sfates of 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~by law, shall recoivo from the S.tate the 

sum of Ten ($10.00) Dollars for each of the first 

350 days of every calendar year 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-- 

pensation provided for in thls:Aci shall be gaid 

monthly by: the State upon,warrants 'dra-311 by~the 
Bon. C. H:Cavmss, Pago 10 
Hon. C. H. Cavness, Page 11 

raking the total population of oaid’judlaial district 98,743, 

and bringilx said district within the provisions of tho last 

above-quoted st%tuts. 

Article III, Section 44, of the Constitution, irovides 

as follous: 

“The Legislature shall 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 

authorized by 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 creatlsg and authorizing the offtoial positions for 

which atid,appro riations mere made were ln coapliance~vaitb sold 

Art, III, Sec. 4 $ , of the Constitution of Texas, therefore, that they 

were leSa1. Further, -Art.‘V, Sec. 21, of the Constitution, ,and.Art. 

322, of Vernon*s Annotated Clvll Statutes, hereinabove set out, authorize each and all of the- offices of district attorney Involved 

herein, emI t&e various statutes referred to legally create such official positions. Practically all of the statutes hereinabove set 

out which authorize the appointment of assistant district attorneys 

contain the provision @at said asslstant district attorneys 

shall have authority to perform all the acts and~dutios of the 

district attorney under the laws of this State. Those of said 

statutes where such specific authority Is not given to aoskstant 

district attorneys authorize said assistant district attorneys 

to pcrfom tho sorvfces then district attorney 1s authorized to, 

perfom. Therefore, it is our opinirm that each and all of said 

assistant district attorneys 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 . . , 

.. . . .. 

:_ ” 

. . 

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

Ron. C. Pi, Cavnflss, Peg12 12 

w?ovisfons authariz& the oretltioa of o&~~tLllnal 

mdop oort8iQ Ooditi-. sn 1583 

g adopted. an Ret which contained a 

defini~lon of oritinal d:stx?ict ottoma. That Act 

provided aa follcws; 

I 
, 

%n. C. B. Ctwness, Pega 33 
Hon. 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 

suggastlve of 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_glaces only, an?l not to 

claones of-Tij;-ficors. 2233 places In uiilch 

the.croation of offices by sGccia1 or local 

Taw is prohibited are col-nties, cities, 

towns,~end oloctlm .md school districts. 

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

Constttution, supra, the Legislature Is given the ~' 

power to create the office, of distz4ct attorxneyln 

such districts as 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 Legislature to create tho office OS district attorney ln a specific judicial district by its name 

or.any other fozn of do&nation and by the 3ame 

token it would authopiee the Le@.sl.aturc to allou 

~the district attorney of a particular named dl~t:~lc~t 

to employ assistanta. 

. 

"It. is our opinion that bur State Cdnstltutlon 

does not prohibit the tsgislaturo from enactlng a 

local or opocial law creating the ofSice of assistant district attorney. Tho Constitution a009 pro- 

~hlbit tho creation of county, city, toxin, election 

district andnschGGl district 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~cnses vhero 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 judge upon bsbeas corpus, and he is not%- ; 

fied of the sane, and is at the tine within the ;. 

county where such pmccsdlng is had, he ,shall represent the Stats therein, unless prevented by other 

official duties." 

Acts of, the 47th Legislature, 1941, Ch. 148, p. 207, containod the Judiciary Appropriation, a part of which was as follows:. 

"Be it enacted by 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 Inventigator for each of 

the follonlng Judicial 

Districts: Thirtieth and 

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 

"Section 1. Thzt the several sum of nokey 

.herelnspecifled or so much thereof as may be coceasary, are hereby approprLated out of any moneys 

'in the State Treasuq, not otherwise appropriated, 

for the purposes herein Indicated as follows:' 

" . . 

Supreuc 

Gonsml 

duties, 

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

Court had mder consideration the pouer of the Attorney 

to employ an attorney to assist him in performing certain 

said attorney not b&.ng an AssistantAttorney General and 

the only authority for his enployment being 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 enforcing any 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 othoruise appropriated, the sirzi of $25,ooo.oa or 50 much 

thereof as map be necessary, to bo cxpendcd 

under the dlrcction of 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 vouchers approved by the 

In holding that the Attornog General uas authorized by 

.said appropriation bill to employ an attorney to asslst’in the 

performance of said duties, the court la.aid dovn the following 

principles ,of law vhhloh. are applkable here: 

“The next important question that arises in 

the case is: .3&d Gou. Campbell and Atty. Gen. 

Lightfoot authority under 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 contract must be derived from the statuto ltself; therefore we must construs its terms to ascertain whether ,or not that authority is given. 

For the rule of construction by \zhLch we aro to 

be governed, we copy from Sutherland on 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-established prlnciple that statutes containing grants of power 

are to be constrdod so as to .lnclude the authority to do all thirgs necessary to accotipllsh the 

object .of the grant. The grant of an express 

pouer carries with it by neceosnry implication every other power necessary and proper to the cxecution of the potrer expressly granted. Where the 

law commands anything to be done, it authorizes 

the performance of whatever may 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 10 
Bon/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 required a vl~orous 

prosecution of 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 

pro3ecutlnG same, ( empowers the Attorney Gsncral, 

with the concurrence of the Governor, to expend the 

sum appropriated or so imuch thereof as may be necesi' sary to accomplish the purpose specified in the act, 

and the cost of whatever might 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 application of this fund to the .protectlon of the.public lands of the state. Suits were 

authoriced~ to be brought by ~the lan@age, 'to pay 

the expense of.brin&ng suits and also ln prosecut-; 

j IT@ the seine.' 'Cut of this requirement there arose 

the necessity and the power of said officers to do, 

the thl.n~s that were required to be dane in order to 

institute and to prosecute those suits, and It requires no argument to show that the services of attorneys wer$ necassary to the performance of, this 

duty. . . ; 

The law imposes certain duties upon a District Attorney. 

In the performance of said duties, he may, or he may not, need tho 

services of someone'clse. When the Legislature passed the appropriation blll here under consideration, it 1s evident that It was 

in the mfnd of the Legislature that the conditions were such that 

the District Attorneys in the districts named were in need of assistance in the performance of 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 District Attorneys were 

authorized by said approprlatlons to expend the suus appropriated, 

or so much thereof as might be necessary for such purpose, in performlng the duties of thciroffices by employing the assistants 

therein provided for. 
Hon. C. Pi. Cavness, Page 18 

Thare is no general'statuto creating the office of Assistant District Attorney that is applicable to all District Attorneys. 

There ara numerous statutes creating the ofSice of Assistant District Attorney and Assist-ant Criminal District Attorney that are 

applicable to districts npecifically named or identlfied,by other 

descriptions such as population brackets, or number of counties 

embraced theredn, etc. It Is our opinion that, where the only 

authority conferred upon the District Attorney of a designated 

district to appoint an Assistant District Attorney is Sound in an 

appropriation bill vhich makes an appropriation to pay the salory 

of an Assistant District Attorney, the assistant thus authorieed 

to be appointed is not in fact an officer with all the powers and 

dutios OS his prlncipl, bec~usc no such office hs3 bepn, or can 

be thus, created by the Legislature. The mere appropriation by 

the Legislature of money for the payment of compensation to the 

incumbent of 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 created by the &egislature Is by a statute duly passed for .that purpose& Such an assistant as is here bea considered is merely an employee, and not an 

officer since he is given none of the powers of his principal and 

is not authorized to perform any of the duties of his principal. 

Therefore, since this position is not an office and the person 

appointed thereto Is only an employee, his compensation may properly be provided for In the appropdation bill, and suoh appropriation bill is sufficient authority for such appointment and for the 

State to pay .the appointee the salary provided thcrein.~ 

, 

,Xt his ouropinio$,therefore, that each and,all of the 

appropriatlons'harelnabove referred to were in all things legal, 

which conclusion-makes it unnecessary Sor 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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