Case Information

*1 Hon.~cullen B. Vance Opln*on Ro. v-503

Re: &Jr ofthe 'Co&y Attor- ney to represent the State In a suit brought to.remo~e a ofi hithi or a county l?hldh,io llaclud- ~66 ill a dlstri.ot alere there Is a district at-, t orney .

n8 lWt8r

tQ YOUr lr808llt hltt8r t0 this &PC&l+ ment ml@ reads,' in part, a8 follovs:

.'. ~%ecrtloq 22 of ArtloW of. the StcLte'~ Constitution provides th@county aWmeya 8hall represent the St&e In all cases,ln. ., the dlat?ict and 1Werior ootite in thelz re$Qectl.ve Comties, but Ql'&ldef+hatthe resQeCtive'dUtiea,& district attorneys~and .~ counW~ att+&ys shall be.regulated 9 ,the Legislature wh&re the county Is included in a.diatrict in vhioh there, is-& dlstriot a$-- torney. Jaekkson county~ls 1Qcsted where~there is 'a.distr$et attorney. Bo legislative e+%at- mnt, 80 far aa I have b~een.eble to find, has been made under' the above aeatlon of the Con- .atltotion.

“The pqebtlon piesexited 1s whether‘lt Is my duty to represent theState in 8 suit for removal of e county offlalsl, or whether this dosy is imposed upon the Dletrlct At- torney. . . .

Section 21,.Art.,V, of the State Constitution provides, Inpart, that8

"The county attoMeya shall represent the State in all eases in the MsCrl,ct and lnierlor court.8 in their respective aoun- *2 Eon. Cullen B. Vance, page 2 (V-503)

tier, but ii any couaty shall be lnoluded in a dlstr.iet la whioh there shall be a dlstr$ot attorney, the respective duties oS.distrlot attorneys and cotity attorneys shall in suoh tountles be regulated by the Legislature."

Section of Article V, Is as Sollowe: "County'Judges, county attornejs, glerks of the District and County CWrts, justices of the peace, constables, and other county oSSiae@a, may be removed by the Judges of the M&Plot Courts for incompetency; oSflclal miroomduot, habitual drunkcnnesa, .or other cauaea~'d+ned by lav, upon the cause there- set forth ln'wrltfing and the SW- SOP w lng of i s truth by a jury. ,- ~.,

&ticle 5970, Y. C. S., provide@, in part, aa s011wsr

"4ill dlstrlotand oounty attorneys, ooun- ty ju&er, oommlssloners;' olerke ofthe die- trio% iand obunty courta,and single clerks In cowties. where one.olark dleoharges the duties.

of dlfatrlot and oouuty oleek, county treamrer, s&e@S eowity surveyor, a86etmor, colleotor, ~Q&&#& oattle and hide laapeetor,, juatloe 0s hha'paaq and all county offloers PQV or h&reaftbP exlrtlng by authority olther of the Con&batMn or,lavs, may be removed from OS- flee by the judge 9s the fliatrl@t oourt for lneempetewy, ofSlolal m%soomduot or becoming lntodwted by drinking intbxioating liquor; as.8 beverage, .vhether a duty or not; . . .=

In the caab of State V. Narey, 164 8i~W. (24) 55,'the court in passing upon the question of irhoqe duty It was8 to.brl suit to remove the sherlff of Nueoes County;'whelre here iraa a Criminal District Attorney and "&

a County Attorney, held thatr

"lie aonclude that such power. and duty vests lmthe- countf attorney wcler S&ci'Pl, M;-s, of the Constitutti6n, quoted above, whlqh.pmmldee that 'the county attbrheys ahall iwpresent'the State in all oaaea In t&,Dirtriot and inSeMor con&s in their resgiotW4p 0ountie8.*"

, .1.

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Eon. Cullen B. Vance, page 3 (V-503)

In the case'of State v. Bhnls, 195 S. W. (2d) 151, even though the court held it wan the duty of the ': Mstrlct Attorney to bring a suit for the removal of the aheriff for official misoonduct, we do not believe that the court Intended that this was.an exclusive duty of the Diistrlct Attorney. On the contrary, me think that the court implied that It was not the exclusive Suno- tion of the Dlatrlot Attorney since the court olted the Rarney Case with approval.

Mbreover, in the case 'of Reeves v. State, 9. W. which was for the removal of a sheriff for misconduct or office, the court held that in an action to oust a county orfiber that such action must be brought by a Countq or District Attorneg.

'Therefore; in view 0s the foregoing, it is the kipidon of this Department that it is the duty OS both the COunty and District Attorney to represent the State in a suit for removal of a county official, but aueh duty la not exoluslvely that of either.

.Itla the duty of both the County At? torney.'and District Attorney to repreaent the State ln a' sult~'Sor removal of a'county OfSloial, but such duty la not excl~8lvi3lg that of either. Seotlon 21, Art. V, State Constitution; State v:Rarney, 164 3. W.

(26) 55; State v. IhIs, 195,s. W. (2d)l51; Reeves v. ,State,,267 S. W. 666.

Yours very truly, ATTORRRY ffRRRRAL OF TRXAE4 ByA--

Bruce Allen Assistant