274 S.W. 1011 | Tex. App. | 1925
There is no dispute about the facts, and the question is one purely of law, viz. upon which one of the two officers is devolved the legal duty and obligation of prosecuting attorney in criminal actions and proceedings cognizable in the district court of Red River county? The court has jurisdiction to determine the question in order to give the relief the law can afford, although the proceedings are in the nature of a private, and not public, action, within the scope of the law, as a property right is involved — the right to receive fees of office. Both parties are prosecuting attorneys for the state; the one the county attorney of Red River county, the other a district attorney residing in Lamar county. Each of the two officers as such is entitled by law to receive such fees and compensation as may be prescribed by law. Section 21, art. 5, Const. And the duration of the term of the two officers is fixed at two years. Section 21, art. 5, Const.; section 30, art. 16, Const. As provided by the Constitution:
"The county attorney shall represent the state in all cases in the district and inferior courts in their respective counties; but, if any county shall be included in a district in which there shall be a district attorney, the respective duties of district attorneys and county attorneys shall, in such counties, be regulated by the Legislature." Article 5, § 21.
Therefore the law makes the two offices separate and distinct, though with the same tenure, rights, powers, duties, and obligations of prosecuting attorneys. The one, however, is made subordinate to the other, having exclusive control, to some extent, of business of the state cognizable by the district court, in the certain instances specially named in the law. As expressly provided, the county attorney shall be the prosecuting attorney to "represent the state in all cases In the district and inferior courts in their respective counties," unless his county "shall be included in a district in which there shall he a district attorney." In such case, as provided, "the Legislature" is empowered and required to regulate "the respective duties of district attorneys and county attorneys." In other words, in such case, the Legislature, by statutory provision, shall direct and assign the duties of the prosecuting attorney, as agent of the state, severally performable by such different officers in the courts of that county. Hence, as a provision of law upon which to found a private right, as relating to compensation, a county attorney could claim there was vested in him the authority and imposed on him the duty "to represent the state in all cases in the district and inferior courts" of his "county," in case it appears that his county does not comprise a part of "a district in which there shall be a district attorney" authorized and provided for by the Legislature. Is that situation shown in the instant case? In the present act the Legislature, acting under authority expressly conferred by the Constitution, created the One Hundred and Second judicial district, composed of Red River county, in which the appellant was county attorney, and Bowie county. Red River county was transferred from the Sixth judicial district, composed of the counties of Lamar, Fannin, and Red River. The act provided for the "immediate" appointment of "a judge of the One Hundred and Second judicial district." But, as regards a district attorney, the act in section 8 expressly provided that "the district attorney of the Sixth judicial district shall prosecute all criminal cases" arising "in Red River county" triable "in the One Hundred and Second judicial district court." "Thereafter," as further provided, "the county attorney of Red River county" shall represent the state in "all criminal cases in the district court of the One Hundred and Second judicial district." At the time of the present enactment, and for a time prior thereto, a district attorney was specially provided to represent the state in the counties of Lamar, Fannin, and Red River, composing the Sixth judicial district. Acts 1915, p. 259 (Vernon's Ann.Civ.St. Supp. 1918, art 339). January, 1927, is the date of the expiration of the term of office of the said district attorney. The object of the Legislature, as is evident, is to create a new judicial district including Red River county, and to have "a judge" preside over the same, and to have "a district attorney" for a limited time to represent the state "in Red River county" in the district court. "Thereafter," as provided, meaning after January 1, 1927, the office of district attorney as applicable to "Red River county" was to be discontinued and cease to exist. But, according to the wording, it was "the district attorney of the Sixth judicial district" that was to represent the state in the district *1013 court of "Red River county." No new office though, in this respect was undertaken to be created, and no right that did not exist before was conferred. The purpose of the Legislature is evinced merely to continue in force without interruption the situation already existing, and not to presently disturb the rights already attached, as specially relating to the district attorney. There is plainly shown the intention of the Legislature to recognize "the Sixth judicial district," as composed of the counties of Lamar, Fannin, and Red River, as a continuing district under the act of 1915 "for the election of a district attorney," in force and unchanged in that special regard until January, 1927. Therefore in such intention and purpose, as is evident, the legal effect attaching to section 8, as in the nature of a saving clause, is to continue in force without interruption, and not repeal by the present act the law of 1915 as specially applicable to the district attorney, and to fix a date for the change effective at the time designated, January, 1927. Then, if, as provided and intended, the old Sixth judicial district, as composed of Lamar, Fannin, and Red River counties, is specially continued, so far as pertains to the district attorney and the performance of duties imposed on him therein, Red River county would be presently "included in a district in which there shall be a district attorney" within the scope and terms of the constitutional provision, although transferred otherwise to another judicial district. As true, appellee would be, as proven, a resident of his district, within the meaning and scope of section 14 of article 16 of the Constitution, since Lamar county is within such Sixth district. Consequently, if it were within the authority of the Legislature to so legislate, the scope of the controversy here would be reached. Wherein, then, do the terms of the provision contravene or violate constitutional provisions?
The Legislature is clothed with absolute authority to create, increase, or diminish judicial districts. Section 7, art. 5. Const. Under this provision one county may be divided into parts or portions, and each part or portion thereof constitute a separate and distinct judicial district. Lytle v. Halff,
The Legislature is free to fix in each act the time it, as a whole or in part, shall take effect, and may therefore provide that it shall take effect in whole or in part from its passage, approval, or at a fixed date; the deferred time being reasonable. Consequently it is concluded that continuing Red River county under the operation of the act of 1915, as relates to the district attorney, for the time stated, did not have the effect to strip the county attorney of any right vesting in him by assigning the duties of prosecuting attorney to the attorney of another separate district. For until the act of 1915, as pertains to the district attorney, ceased so be legally effective as to Red River county, such county remained under its operation for that special purpose, and did not presently became a part of the new district for such purpose. Red River county became, we think, a part of the new district for all purposes, except the one purpose only, as related to the district attorney. It was not by the act cut off from the old district for the one purpose stated, but presently remained a part of the old district for the one purpose stated. Quite a different question would be presented had the act intended to permanently continue the old district for the special purposes stated.
There is quite a distinction between assigning the duties of prosecuting attorney to the attorney of another distinct district, *1014
and the latter holding office in the original district not presently changed in that regard and made effective as to the new district. It is quite analogous to the holding that a special district court may even be created for one county, to cease to exist at a time named, and the terms of the officers of said court to expire at the time named. Carter v. Missouri, K. T. R. Co.,
It is believed that the judgment should be affirmed, and it is accordingly so ordered.
