Attorney General Opinion WW-1236

January 5, 1962 Iionorable W. G. Walley, Jr. Acting Criminal District Attorney Jefferson County Beaumont, Texas Opinion No. WW-1236 Re: Authority of the Acting Criminal District Attorney of Jefferson County to employ or terminate the appointment or employment of Assistant Criminal District Attor- neys. Dear Mr. Walley: Your request for an opinion reads as follows: 'IOn the 2nd day of January 1962, this writer, as Acting Criminal District Attorney of Jefferson County, Texas terminated the appointment of W. E. Lea, Assistan c Criminal District Attorney for Jef- ferson County, Texas. Vubsequently, said former Assistant Criminal District Attorney requested and obtained a hearing before the Honorable Commissioners Court of Jeffer- son County, Texas, the same being for the purpose of questioning why the appointment of the said W. E. Lea should be legally terminated. Said former Assistant Criminal District Attorney stated as grounds in his request for a hearing before the Hon- orable Commissioners Court of Jefferson County, Texas, that he had in all ways performed the duties assigned to him; that he was appointed by the now suspended Criminal District Attorney and that the appointment had been approved by the Commissioners Court; that neither the now suspended Criminal Dis- trict Attorney nor the County Commissioners Court had rescinded his appointment and approved of the same; that the loss of said appointment at this time would entail a financial hardship on him the said W. E. Lea; and that there was no justification for the Acting Criminal District Attorney's action. Honorable W. G. Walley, Jr., page 2 &W-1236) "This writer now requests the Honorable Attorney General of Texas to inform him of whether or not he, as Acting Criminal District Attorney, has authority to terminate the appointment of an Assistant Criminal District Attorney and whether or not he has the au- thority to hire Assistant Criminal District Attorneys." Article 3902, Vernon's Civil Statutes, provides that whenever any district, county or precinct officer shall re- quire the services of deputies, assistants or clerks in the performance of his duties, he shall apply to the Commissioners Court of his county for authorit- assistants or clerks, J to appoint such deputies, stating 'by sworn application the number needed, the position to oe filled and the amount to be paid. Sections 5 and 6 of Article 52-160b, Vernon's Code of Criminal Procedure, provide in part as follows: "Sec. 5. The Criminal District Jefferson County, for the purpose of affairs of this office, and with the Commissioners Court, shall be and is ized to appoint nine (9) assistants, salary rate as follows: . . . Attorney of conducting the approval of the hereby author- and fix their Y?ec. 6. Should such Criminal District Attorney be of the opinion that the number of assistants or stenographers above provided is not adequate for the proper investigation and prosecution of crime and the effective performance of the duties of his position, with the advice and approval of the Commissioners Court he may appoint additional assistants and steno- graphers or other employees, as hereinafter limited and fix their salaries as follows: . . .'I applicable Section 4 of Article 326g, Vernon's Civil Statutes, to Jefferson County, provides as follows: Vet. 4. The assistant district attorneys above provided for, when appointed t shall take the oath of office and be authorized o represent the State in any court or proceeding in which such district attorney is or shall be authorized to represent the State, such authority to be exercised under the direction of said district attorney. Any such as- sistant, stenographer, investigator, or employee whether regular or additionalt shall be subject 10 removal at the will of said district attorney or criminal district attorney." Honorable W. G. Walley, Jr., Page 3 (W&1236) It has been held by this office in numerous opinions that appointments under Article 3902 above referred to, are not subject to confirmation by the Commissioners Court and that the Commissioners Court has no power whatever over naming the indi- vidual to be appointed an assistant. Attorney General Opinions o-304 (19391, O-480 (19391, O-1914 (1940) O-3448 (19411, o- 3925 (19411, V-699 (1948) and V-1050 (1956). It is onr opinion hat a similar construction is applicable to the provisions of b:-title 52-160b Vernon's Code of Criminal krocedure. Further- tlire, Article 3!?6g, Vernon's Civil Statutes i specifically pro- vides that assistant district attorneys whe her the regular or additional shall be subject to removal~at the will of the dis- trict attorney or criminal district attorney. In view of the provisions of Article 3902, V.C.S., Ar- ticle 52-160, V.C.C.P. and Article 326g, V.C.S., you are advised that as Acting Criminal District Attorney for Jefferson County you have the authority to terminate the appointment of any as- sistant criminal district attorney. You are further advised that you are authorized to hire assistant criminal district attor- neys. SUMMARY Under the provisions of Articles 3902, Vernon's Civil Statutes, 52-16013. Vernon's Code of Criminal Procedure, and 326g of Vernon's Civil Statutes, the Acting Criminal District Attorney of Jefferson County has the authority to terminate the appointment or em- ployment of any assistant criminal district attorney and has the authority to hire assistant criminal dis- trict attorneys. Yours very truly, WILL WILSON Attorney General of Texas JR:zt:wb Honorable W. G. Walley, Jr., page 4 (WW-1236) APPROVED: OPINION COMMITTEE W. V. Geppert, Chairman Pat Bailey Arthur Sandlin Thomas Burrus Fred Ward REVIEWED FOR THE ATTORNEY GENERAL BY: Houghton Brownlee, Jr.