delivered the opinion of the Court.
*263 This is an original application for writ of mandamus and prohibition filed in this Court by relators, Estella G. Garcia and other citizens of Duval County, Texas. The facts in this case are as follows:
On October 26, 1955, the Attorney General of Texas, the District Attorney of the 79th Judicial District of Texas, which includes Duval County, Texas, (Duval County had and has a regularly elected, qualified and acting county attorney who did not join in the suit at the time of the filing and the entry of the orders under attack in this proceeding), upon the relation of Frank A. Vaello, filed suit in the District Court of Duval County, asking the judge of said court to remove relator, Estella G. Garcia, from her office as County Commissioner, Precinct No. One, Duval County, Texas. In the petition seeking removal it was alleged that relator, Garcia, as a member of the Commissioners’ Court had violated the provisions of the Nepotism Act of our State, and particularly in four separate instances by casting her vote to pay three claims for money against Duval County in favor of her son, and in the fourth instance in favor of relator’s daughter, when relator well knew her daughter had been discharged and held no valid claim against the County. It was also alleged that by voting to pay her daughter funds of Duval County, relator was hiring, or attempting to hire said daughter in violation of the Nepotism Act. There was a further allegation that relator, in conjunction with certain other members of the Commissioners’ Court of Duval County, had entered into an alleged illegal contract undertaking to employ an attorney to recover funds belonging to Duval County, and had agreed to pay such attorney 15% of all amounts so collected as result of suit or suits filed by such attorney. It was alleged that an appeal was taken from such order of employment to the District Court of Duval County; and that the District Court had rendered a judgment enjoining the execution of the contract because, in making this contract, the Commissioners’ Court had “acted without reason, arbitrarily and wrongfully, and constitute acts of bad faith and not being for the best interest of Duval County, Texas, and the public.” Certain other acts and statements of relator, Garcia, were wil-fully and knowingly done by relator and constituted official misconduct, as well as incompetency. The prayer was (1) for an order directing the Clerk of the District Court to issue citation, accompanied by a certified copy of the petition, to Estella G. Garcia, the defendant in the suit; (2) to set a time for hearing of the cause; (3) the suspension of relator, Garcia, from her office, and the appointment by the court of a qualified per *264 son as Commissioner in relator’s place, conditioned upon such appointee giving a proper and- legal bond and (4). upon final hearing that Estella G. Garcia be permanently removed, and for general relief. The petition was duly sworn by Vaello, as one of the plaintiffs. After presentation of this petition on October 26, 1955 the District Judge directed the Clerk of the court to file same, and set the cause for hearing on November 25, 1955 at 10:00 a.m. at the courthouse of Duval County, and directed that proper citation and notice of setting ■ be issued to Estella G. Garcia. On October 26, 1955 Vaello filed a motion that Mrs. Garcia be suspended from her office and some qualified person be appointed temporarily to fill her office, upon qualifying according to law. Thereafter, and on the same day, the District Judge suspended Mrs. Garcia from office and appointed T. H. Molina, a qualified person to fill her office, and required him to give bond as required by law for the protection of Mrs. Garcia, should she - not be removed from office. Molina gave a bond which was approved by the District Judge in open court on October 26, 1955.
Mrs. Garcia and other citizens of Duval County filed this application for mandamus (1) commanding the District Judge to set aside his order removing Mrs. Garcia from office and appointing T. H. Molina in her stead; (2)• prohibiting the District Judge from taking any action in this suit,, “unless and until the County Attorney of Duval County should join in the suit on behalf of the State of Texas,” and certain other orders relative to other litigation in counties other than Duval County.
.It is the contention of relators that the district court and the judge thereof acquired no jurisdiction of this cause, for the reason that the county attorney of Duval County did not join in the same; therefore, the orders of the district judge were void. Unless the action taken by the district judge were void, relator can recover no relief in this proceeding.
The present suit was instituted under the provisions of Article 5, Section 24 of the State Constitution and Article 5970, Vernon’s Annotated Civil Statutes, which gives to the district judge power to remove certain county officers,' including commissioners, for “* * * incompetency, official misconduct, habitual drunkenness * ?•*.” In addition-to the Constitutional provision covering the- three above causes for removal, the article also provides: “* * * or other causes defined by law, upon cause therefor being set forth in writing and the finding of its truth by a jury.” Under this provision of the Constitution it has been
*265
held that, pending a trial of the cause upon its merits, the district judge has the right and power to temporarily isuspend such officer and appoint for the time being another to discharge the duties of the office. Article - 5982; Vernon’s Annotated Civil Statutes; Griner v. Thomas,
In order that the district judge and the district court may have jurisdiction to hear and determine the cause, it is necessary that the parties bringing the action possess the legal capacity to institute and maintain the suit. Staples v. State,
Relators rely upon Article 5, Section 21, State Constitution, to sustain their position that only the county attorney is authorized to represent the state in an ouster proceeding brought under the provisions of Title 100, Vernon’s Annonated Civil Statutes of which Articles 5972 and 5996 are a part; therefore, county attorney not having joined in this suit, all proceedings had herein are void. Article 4, Section 22, defines the duties and powers of the Attorney General to represent the State “* * * in all suits and pleas in the Supreme Court of the State in which the State may be a party * * * and perform such other duties as may be required by law * * * .” This article was also amended November 2, 1954, but the quoted language is substantially that existing prior to the amendment. The powers conferred by the Constitution upon the state officials are generally held to be exclusive, and except in the manner authorized by the Constitution, these powers cannot be enlarged or restricted. Maud v. Terrell, supra; Brady v. Brooks,
In the case of State ex rel. Downs v. Harney, 1942, Texas Civ. App.,
“As the powers and duties of the Attorney General are prescribed by the Constitution and Statutes, those powers must be limited to those so prescribed, and may not be enlarged by the courts.
* *
“It is our considered judgment that, since there is no constitutional or statutory provision which vests in the Attorney General the power, or makes it his duty, to institute actions for the removal of county officers under the provisions of Art. 5, Sec. 24, of the Constitution, and Art. 5970 of the Statutes, [Title 100 — Officers—Removal Of, Vernon’s Annotated Civil Statutes] the Attorney General cannot assert or exercise such power and duty in this action. We conclude that such power and duty vests in the county attorney under Section 21, Art. 5, of the Constitution, * * * which provides that ‘the county attorneys shall represent the State in all cases in the District and inferior courts in their respective counties.’ ”
The Harney case very ably and thoroughly discusses the rights and powers of the Attorney General in his representation of the State in its litigation.
Since the Attorney General does not possess the power to institute these removal proceedings, we must next determine v/hether the District Attorney of Duval County (it being situated in a multiple county district) possessed such right and authority. The article below is the amended article adopted November 2, 1954, but the provisions quoted are the same as *267 in the 1876 Constitution. Relators contend that there has been no legislative enactment modifying the exclusive right of the county attorney to represent the county in the district and inferior courts as set out in the Constitution. Neither side has cited any action by the Legislature, and we have been unable to find any statutes to that effect. Further, it is contended that the Legislature has not defined the duties of a district attorney so as to entitle him to represent the state in such courts, to the exclusion of or in conjunction with the county attorney. Again we are cited to no such legislative enactment and have found none. Neither have we found a case so holding.
Article 5, Section 21 provides, among other things, that “* * * The County Attorneys 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. * * * ” The first clause quoted gives only to the county attorneys the right to represent the State in district and inferior courts, but the last clause recognizes that there may be both county and district attorneys in the same county, and by its provision for duties of the district attorney and regulation of the county attorneys’ and district attorneys’ duties, the Constituion recognizes the right of the district attorney to represent the State in conjunction with the county attorney. Also, the Constitution recognizes the right of the Legislature to regulate and prescribe to each of these officers their respective duties. By such right the Legislature has seen fit to provide in Articles 25 and 26 of the Code of Criminal Procedure that the district attorney shall represent the State in the prosecution of all criminal cases in the district courts of his district, except where he is disqualified. When the district attorney is disqualified the county attorney is given the right to represent the State. Also the county attorney is required to represent the State in all criminal cases tried in courts other than the district courts, and to appear in district courts as representing the State when the district attorney is absent from district court, and, further, the county attorney may assist the district attorney in cases in the district court.
In the absence of a specific legislative enactment we believe the Constitution provides for either the district attorney or the county attorney, jointly or singly, in the event either fails to act, to be the proper officer to represent the State in the district court. The State cites an opinion of a former attorney general *268 holding that either may represent the State.' While such opinion it not binding on us, we have given it due consideration by virtue of the fact that the attorney general is the one designated to advise State officers.
In the case of Trigg v. State,
“* * * It would seem proper, also, for the district attorney or county attorney, when not disqualified, to prosecute the case on behalf of the State, — not doubting, however, the authority of the judge to request other attorneys to act, where the State, for any cause, is not otherwise represented, or to act as assistants of the State’s counsel. These suggestions, in relation to the proper practice in this proceeding, are drawn by analogy from ‘informations in the nature of a quo • warranto’ as practiced in England, and in many of the American States, for the removal of an officer from his office. That,- when filed at the instance of a relator, rests upon the sound discretion of the court to admit it. (High on Ex. Rem., secs. 591, 605, 608). The allegations must be specifically made, and, in some. shape of oath, sworn to by the relator, (Id., secs. 733, 734, 739.)
“Surely, in an extraordinary and summary proceeding of this kind, imposing upon the judge the responsible and delicate duty and the high power of removing a whole class of officers, in order to preserve, if necessary, the proper organization of the State government for the execution of the laws, such orderly and well-defined regulations should be adopted in the judicial inquiry as may be consistent with its prompt and faithful exercise.” (Emphasis added.)
In the case of Brady v. Brooks,
In the case of Reeves v. State,
In the case of State ex rel. Downs v. Harney, supra, after holding the attorney general had no right to bring and prosecute this action for removal, the Court said: “* * * whereas, the sheriff contends that the action being one to remove him from office for acts of misconduct prescribed in Section 24, Art. 5, of the Constitution, and Art. 5970, R.S. 1925, it is the exclusive province of the district and county attorneys to institute the proceedings under the provision of Art. 5, Sec. 21, of the Constitution, requiring county attorneys to represent the State in all cases in the district and inferior courts in their respective counties. We have reached the firm conclusion that the contentions of the sheriff must be sustained; that this purely local action to remove the sheriff of Nueces County should have been brought, if at all, by the district or county attorney of that county; * *
In State Board of Dental Examiners v. Bickham, supra, the Court says:
“* * * Nor may the State be represented in the district or inferior courts by any person other than the county or district attorney, unless such officer joins therein. Allen v. Fisher,118 Texas 38 ,9 S.W. 2d 731 ; State ex rel. Downs v. Harney, Tex. Civ. App.,164 S.W. 2d 55 , * * *."
In the Ennis case (State v. Ennis, 1946, Texas Civ. App.,
We think that the district attorney was a proper official to represent the State in this ouster proceeding and that therefore the trial court had jurisdiction to entertain the suit and to suspend relator, Garcia, temporarily pending a trial on the merits. The district court had jurisdiction to appoint Molina to fill her position until final determination of the cause. The county attorney also could bring the action.
It is contended that to permit both the county and district attorneys to bring this action might lead to confusion in the trial of the case in the event these two officials should differ on the method of conducting such trial. We think the district judge is empowered to resolve such conflict, and to determine which of the two officials, having equal powers and rights, will best protect the State’s interests, and to make such rulings as in his discretion will effectuate this end.
It follows that the judgment of the trial judge in the premises was not void, and the mandamus sought will be denied.
Opinion delivered December 14, 1955.
Rehearing overruled January 18, 1956.