Attorney General Opinion WW-1302

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 prose- cuting 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 infez- lor 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 com- pensation 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 rep- resent 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 concur- rently with ustlce courts; . . ." (Em- phasis 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 dlscretlon- ary 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 pro- secutio.ns . . . .'I . . Consequently, we are of the' opinion that, In view-of, the constltutlonal.and statutory provlqlons per- talnlng 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 Cor- poyatlon 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.