Case Information
*1 OFFICEOFTHEATTORNEYGENERALOFTEXAS AUSTIN
fionornble C. N. Covnesa
state knd:ciitor
Austin, Texas
Dear Sir:
"We 8x33 no3 onakin
of aacount; an4 r
G Assistant District Attorney 3,000. 3,000.
- fjji+i District
7 Asxlstsnt District AttoXney 2,700. 2,700.
- 53ra Dist??lct
Bon.‘~c. Ii. COWOS#, PaGo 2
a
, 9
10
11
12 *3 Page 3
HCXI, C. H. Camm~,
paPd, an5 in,each im3itidu~l instense vhat years viaid be involved in a&lLtion to t!xose csvared by ';.
the Appzwiation Act of tiie 47th La~iolatux~?~
IJa will refer to th-3 vkiotls mttors ccntalned in your request as Item 3, Itea 4,,cta., using the ymber fos oaeh Itea that ym have used.
ArMole Q, SeotZcrn 21, of t'na Comtltution of Texas, is as PoilGws:
“A counf;g attoraey, Pm countks in which there is not a Fe&dent ci?imical district attornag, sha1.i be elooted by the qualified voters or" each county, xrho shabl be caw.~issFonecl by tine Governor, a&hold his off%00 for the tam of two yeam. In' ces~ of vacancrg the Comfssiooers* Couzzt of the
acxmty s'hali h3ve pwcr to appol.n$ a county attor- ney untfL the next.geneP3~ ekCtfOnn Th3 coiultg attorneys sha9.3 regpesent the State in a13. oases in the District and inferic~ courts in their me- spective counties; but if any oomty 3M!S be in- cludod in e distrLc,cl in Shkh 'kei+c shall bo a di3- td.ck attorney, the rcspectfve duties of ditit~iot ottorneys and county attorneys &hall in such cour$ies be regulntecl by th8 Le@;isla%u.x-e. Y.3 Le&3lature nay protide for the.ek$tioa of dLstrict attorneys $.u auoh diStriCtSi GS Wig be d~eecled 3k?COSS3=, aEd 112al:o p32ovision for the coqensntLo9 of dLstx4Lot at-.
torncys, nril oounty attorneys; provLdlod, dbtric~
attomo~s shall. rooeive an annual salary of five .' ., hun&*ed dollars, to be psld by the State, and suoh fens, co1mis3ion3 nnb perquisites a3 nay be pro- vided by law. County attmmgs &?111 recefvo a3 aos@easotion only such fees, ~m?zLis3LOns and per- qulASm 8s may be prescr&bed by 1a'J." 322, Yertionss Amotated CLvl.1 Statutes, Ls
Arf;iclo In psrt as follms:
'IThe follc~4.~~ Jud.Foial DFstricts,in.thfs s&z&e shall each res-osetively elect a DistH.ct At- topmy, viz2 . . . u&h, . . . twcnVy-r;eoo!d., .a. thiX- th@tiy.-fix&h, ,..forQ-sorcn&h, . ..fo$ty- flf-~y-‘~~hLxd, . . , sevarkg-socori1, . . . tietln, . . .
ninth,. . . .
: # . :. .‘,
‘79.5 Hon. C. il. Cam3ss., Page 4
. wgeu. 1. !n?Al; m3txict Ate@nays ..I:: 311 S~lC~l3l Dlsex?iuts cim~osad of only ona county,
,
2 :’ ; ‘
non. C. Ij. Cavmss, Pcge 6. . .
Item 7 Is authorlzad & Article 326k-7, whichis in
ai Po33o~s:
"Sm. 2. That tho DPstslct AttOmey ofthe $&%I Sudic~al, Dfstrlct or TO-xas tg authorlee? to -~ -' appotnt a9 Assfs"tant District Attorney in additicxa to that authorized by Stictio~~ 2 of' Article 326% GSI oaxriod fomazrj in Vamon~s Civil. Statute of the State of Texas', urrdor Act5 of 1331, Forty-s;c~oud
Le&mitLlxe, pa&3 744, C@plm 291.
"Sec. 2. The Assistant District.httorneg provided for in soctio?I 1 shall bo a duly 3icenWxI attorney at 3av and a bona fide z%M.dent~ of’ Travis county an!3 shall poscess a33 IAm aua3ff~c.cstlons that era nw ratpS.rod by low of the Di&rLot httiorney of the 533?3 sud,iclal lllatrlct of t119 %ta;aGa of Tox3aj shall take the 03th 05 ofX=Qo.; shi~ll. bo subject to r~iijov~l by tha wP13 0.f the Distld~t AttOX'ney; aha
.. ’
. . . , /. ~.
_ :~ i _
Hon. C. II. Cavness, Page 8
"In any judicial district ln this State consisting of mope than one county ln which there is situated a CFty or not less than thirty-four thousand (3&,000) Inhabitants and not more than'; forty-four thousand (]:]I-,000) inhabitants, accord- ins to tho last preceding Federal Census, the district attorney 3baLl appoint one assistant district attorney, provided the district attorney &all furni3h data to the dlstrlct judge of his district that he 13 in neod of an as,sLstant and is himself unable to attend. to all the duties rc- quired of him b3 law, and tbzt it is necessary to the best interest of the State that an assistant district attorney be appointed. Ss5.d assistant district attorney so appointed shall be a quali- fied resident of the district in which said ap- pointment is made and shall give bond and take the official oath. The said assistant district attornsy shall be a.qualiSied licensed attorney and shall~have authority to perform all the acts and duties of the dlstriat attorney under the laws of thl3 State; said appointment shall be for such time as the district attorney shall deem best in ,, the enforcement of the law, not to be less than.
one month. Said assistant district attorney shall _i :,' be paid by the Comptroller for the time of actual service rendered at the rate of !iVenty~five PIundred 'Dollars ($2500) per annum: Said sum shall be paid upon certificates of the district attorney of said ,~;. district that said assistant district attorney has parformed his duties and is entit1e.d to~pag. The ' ,I~ district attorney of any such district at any time '.' '_
he deems said assistant unnecessary, or finds that .- he .is not attending to hi's duties as requfrcd by (~ law, by remove said person fron office by mertly writing to said district judge to that effect.
The 49th Judicial District of Texas is compoacd of the Counties of D&nit, Zapata,:Jim Ho&g and Webb. In said district there was located the City of Iaredo, whose population, as shovn by the Ped8ro.l Census of lg!hO, was 39,274. aereforo, said Judicial District came within,the provisions of Article 324 of se,ld statutes.
- .!. ":WQ have been unable"to' flnd.r*ny:,'statute~ spec~lfi&iy 'au- ' .thoplz$ngtho AssistantDi3trlc,t .Attorncg’or Spoelal Investkgator
'for the 30th distrlct.referred to in item 10, or pr83cribing the
q~lifications,~dutios and compensation of the person appolnted to
880 Honorable C. H. Cavness, Page 9
'such pckitlon; but, for the reasons hereinafter set forth, it is our opinion that the appropriation of a salary for such person is sufficient authcrlty for bio appo3ntmont and belngps,ld the salary so provided,
That p&rt of Item 30 pertatiing to the 72nd District is authorized by Art. 326-1, Sections 1 and 3 of which read as follows:
"Sec. 1. The District. Attornog of the 72nd Judicial DLstr:ct of Texas, is horeby~ authorized to appoint one Assistant Dlstrlct Attorney.
" . . . .
%c. 3. The Assistant Distrkt Attorney provided for in Section 1 of tnbs Act shall rc- cetve an annual salary of $2,500.00, payable
monthly, out of any money,not otherwise appro- priated, upon the.sworn ascount of such Assist- ant District Attorney, approved by the District Attorney."~
‘.We have been unable to find any statute speclfically au- thorizing the Assistant District Attorney for the 47th dlstr5kt referred to in Item 11, 'or prescribing the qualifications, duties and compensation of the person appointed to au& position, but, for the reasons hereinafter set forth, it is our opinion that~ the appropriat.i.on of a salary fo r such person fs sufficient authority for his appointmentand.belng paid the salary so provided.
'Item 12 is authorized by Article Xi&:-3 of said. stat- utes, which is,in part,as follox3:
"sec. 1. Dlafrict attorneys in each. judl-~ -~ cl.al district ti this 3tats containing five or '. more counties havin?; a cornblued population, ac- cording to the Fourteenth Census of the Uaited :Sfates of the year 1920, of not less than 98,740 nor in excess of 98,750, shall receive from the State as py for their servkces the sum of Five Hundred (~500.00) Dollars per annum, as nrovided . .- by the constitution, and & addition thereto, and
ln lieu of the fees, commissions, and perquisites provided~by law, shall recoivo from the S.tate the sum of Ten ($10.00) Dollars for each of the first 350 days of every calendar year as compensation for t3ttcasllng examlati~ trials, Habeas Corpus hearings, the sessions of the District Court of the district they regresent;.and for performing kuch other duties as~lmposo~ by lav. -Tno corn-- pensation provided for in thls:Aci shall be gaid monthly by: the State upon,warrants 'dra-311 by ~the *10 Bon. C. H:Cavmss, Pago 10
Hon. C. H. Cavness, Page 11
raking the total population of oaid’judlaial district 98,743, and bringilx said district within the provisions of tho last above-quoted st%tuts.
Article III, Section 44, of the Constitution, irovides as follous:
“The Legislature shall provide by law for the coskpensation of all officers, servants, agonts and public COntP3ct3P23, not provided for Ln thin Const-ltutioq but shall not grant extra coqensa- tion to any officer, agent, servant, or public contractors, after such public service shall have been pcrfomed or contract entered into, for the parfomance of the sake; nor grant, by appropria- tion or otherwise, any ano;mt of ~omy out OP the I Treasury of the State, to any individual, on a claim, real or pretended, when the sane shall not have been provided for by pm-oxisttig law; nor employ any one l.~ the nam? of tie State, anles3 authorized by pre-existing law.
It is our opinion that each and all of the appropriations reserved to J.n your request for whioh we have pointed out statutes specfffcully creatlsg and authorizing the offtoial positions for which atid,appro riations mere made were ln coapliance~vaitb sold Art, III, Sec. 4 $ , of the Constitution of Texas, therefore, that they were leSa1. Further, -Art.‘V, Sec. 21, of the Constitution, ,and.Art. 322, of Vernon*s Annotated Clvll Statutes, hereinabove set out, au- thorize each and all of the- offices of district attorney Involved herein, emI t&e various statutes referred to legally create such of- ficial positions. Practically all of the statutes hereinabove set out which authorize the appointment of assistant district attorneys contain the provision @at said asslstant district attorneys shall have authority to perform all the acts and~dutios of the district attorney under the laws of this State. Those of said statutes where such specific authority Is not given to aoskstant district attorneys authorize said assistant district attorneys to pcrfom tho sorvfces then district attorney 1s authorized to, perfom. Therefore, it is our opinirm that each and all of said assistant district attorneys were l~gallyauthorized and that said ~~appropi4atlons were legal.
As to;Item 3,.‘. the Supre.k ‘Court in ths case of -2&c ,P&o Rfchapds, et al, 155 9. 1~..(2cI),~597, hold that the . ,..~ *a . . , :_ ” .. . . .. . .
: . . *12 -A i I-- --d---1_;-- ., Ron. C. Pi, Cavnflss, Peg12 12
w?ovisfons authariz& the oretltioa of o&~~tLllnal mdop oort8iQ Ooditi-. sn 1583
g adopted. an Ret which contained a defini~lon of oritinal d:stx?ict ottoma. That Act provided aa follcws;
I
,
%n. C. B. Ctwness, Pega 33
Hon. c. H.~CaVness, Page 14
in the c&e 0P Commlssloners~ Court of LInestone CGIlnty V. CiaI?i%tt, 236 s. I?. 970, Texas COlZlliS- slon of Appeals, the court da:
"'Section 56, Art. 3, vas Cl part Gf the o~lglnal Constitution of 18*?6, There 1s nothlw in t'ne lan,ggaua~;i? of that section suggastlve of a litnitation cf the effect of the provfoion against, CrGntlon OS of- ficos by local or special law tG any cla3s 0~ classes or" offlccs, nor Is there a sug- gastlon 'of such lfmltati'on in any other pGrtion of,tbe Constitution. The litlita- tion rofel~s to_glaces only, an?l not to claones of-Tij;-ficors. 2233 places In uiilch the.croation of offices by sGccia1 or local Taw is prohibited are col-nties, cities, .md school districts. towns,~end oloctlm %nder Ax&le 5, Section 29, of ourState Constttution, supra, the Legislature Is given the ~' power to create the office, of distz4ct attorxneyln such districts as it may deem neccosary and to de- fine the powers and duties of such ol'flcc?s. This J section of the Csnstltuticn would also authorize
the Legislature to create tho office OS district at- torney ln a specific judicial district by its name or.any other fozn of do&nation and by the 3ame token it would authopiee the Le@.sl.aturc to allou ~the district attorney of a particular named dl~t:~lc~t to employ assistanta. .
"It. is our opinion that bur State Cdnstltutlon does not prohibit the tsgislaturo from enactlng a local or opocial law creating the ofSice of assist- ant district attorney. Tho Constitution a009 pro- ~hlbit tho creation of county, city, toxin, election district andnschGGl district offices by local or ~.
opeclal lav;
;
krticle.25,. Code of .Crlminal Procedure of the State of’ '..,~Texas,'.~preacri~es't~;e!dutles ofCistrl$t Attorneys as follows:
%auh distr~~t~attornag ah&: reProcent'~the State ln all ,'.. crlmlrzl~~casca ln'the d.lotN.ct cGurt3 of his dlstrlct, 0 except iu~cnses vhero hc has .becn, before his election, <
'. " I, *15 Hon. C. Ii. Cavness, Page 15
.employed adversely. Ifhen any crinhal proceeding Is had before an exanfnlng court In his district or before a judge upon bsbeas corpus, and he is not%- ; , fied of the sane, and is at the tine within the ;.
county where such pmccsdlng is had, he ,shall rep- resent the Stats therein, unless prevented by other official duties."
Acts of, the 47th Legislature, 1941, Ch. 148, p. 207, con- tainod the Judiciary Appropriation, a part of which was as follows:.
"Be it enacted by the Lcgis1otur.e of the State of Texas
"Section 1. Thzt the several sum of nokey .herelnspecifled or so much thereof as may be coc- easary, are hereby approprLated out of any moneys 'in the State Treasuq, not otherwise appropriated, for the purposes herein Indicated as follows:'
" . . .
‘%or the Years Endlng August 31, Aw-$ 31, < '. ~ 1942 (I . . .~ . :Xi, Cmpensation of on0 As- ststant'District Attor- > neg or one SpecLal In-
ventigator for each of
the follonlng Judicial Districts: Thirtieth and Seventy-necond,at $1;800.
per .year.........,....;....3,600.00 "11. Salary of Assists.& District Attorney in Forty-seventh Mstric,t............~.....2,510.00 2,510.OO " . . . . " . .
In the case of Terre11 vs. Sparks, 135 S. W. 519, the Supreuc Gonsml Court had mder consideration the pouer of the Attorney
to employ an attorney to assist him in performing certain duties, said attorney not b&.ng an AssistantAttorney General and the only authority for his enployment being fomd In a bill ap- propriating suds for said purpose. Sec. 1 of said appropriation bill reads as follous:
non. C. II, Cavnesa, Page 16
‘For the purpose of enforcing any and all laws of the. state of Texas, and for the purpose of paying any and all necessary cxpenscs in, ;:. bringing suits or paying cxponses in prosecuting same, there is hereby appropriated out of any money In the stc?tc treasury, not othoruise ap- propriated, the sirzi of $25,ooo.oa or 50 much thereof as map be necessary, to bo cxpendcd under the dlrcction of the Attorney Goncral by and with the approval of the ,Govcrnor, ana to be paid upon warrants drawn by the coqtrollar on vouchers approved by the of public accounts Attorney Gcnoral. I’
In holding that the Attornog General uas authorized by .said appropriation bill to employ an attorney to asslst’in the performance of said duties, the court la.aid dovn the following principles ,of law vhhloh. are applkable here:
“The next important question that arises in the case is: .3&d Gou. Campbell and Atty. Gen. Lightfoot authority under the statute to employ Terre11 as special counsel to assist the Attorney General 5.n the grosccutl@n of the cases named and other cases which might arise? The pouer to make the contract must be derived from the statuto lt- self; therefore we must construs its terms to as- certain whether ,or not that authority is given. For the rule of construction by \zhLch we aro to be governed, we copy from Sutherland on Statutory Construction, 11 341, as follous: whmonovcr a paver is given by statute, everything necessary .to make it effectual or requisite to attdn the ” end Is implied. It in a well-established prln- ciple that statutes containing grants of power are to be constrdod so as to .lnclude the author- ity to do all thirgs necessary to accotipllsh the object .of the grant. The grant of an express pouer carries with it by neceosnry implication ev- ery other power necessary and proper to the cxe- cution of the potrer expressly granted. Where the law commands anything to be done, it authorizes the performance of whatever may be necessary for executing. its commands. 1
‘By. the texms of the statute of the Thirty- First Eeglolrturo before copied, tho duty is in- poocd upon the Attorney Ganeral and the pouicr 10 *17 Bon/C. H. Cavncss, page 17 ,
conferred upon him to prosecute suits against those who are unlawfully claiml,nG the public lands of the state, for it Is evident from the torms of the;act that it was in the mind of the LeGlslature whenit en- acted this law that condltloiis required a vl~orous prosecution of tine state's claims against those who were lnfrlr@n~ upon the rights in the public lands of the state. In view of this duty, tha lanDago, 'and for the purpose of paying any and all necessary ~expenses in brin$ng suits OP payln,g expenses in pro3ecutlnG same, ( empowers the Attorney Gsncral, with the concurrence of the Governor, to expend the sum appropriated or so imuch thereof as may be neces- i' sary to accomplish the purpose specified in the act,
and the cost of whatever might be necessary l.n the discharge of the duties tlmo Imposed upon him Is ln- eluded in the term 'expense.' The second section of the act shows that in the mind of the Legislature there was an immediate necessity for theAttorney General to make application of this fund to the .pro- tectlon of the.public lands of the state. Suits were authoriced~ to be brought by ~the lan@age, 'to pay the expense of.brin&ng suits and also ln prosecut-; j IT@ the seine.' 'Cut of this requirement there arose
the necessity and the power of said officers to do, the thl.n~s that were required to be dane in order to institute and to prosecute those suits, and It re- quires no argument to show that the services of at- torneys wer$ necassary to the performance of, this duty. . . ;
The law imposes certain duties upon a District Attorney. In the performance of said duties, he may, or he may not, need tho services of someone'clse. When the Legislature passed the appro- priation blll here under consideration, it 1s evident that It was in the mfnd of the Legislature that the conditions were such that the District Attorneys in the districts named were in need of as- sistance in the performance of the duties placed upon them by law. Therefore, even though it was not set forth in said appropriation bill what the qualifications of said assistants should be, or what duties they Vare to perform, said District Attorneys were authorized by said approprlatlons to expend the suus appropriated, or so much thereof as might be necessary for such purpose, in per- formlng the duties of thciroffices by employing the assistants therein provided for.
Hon. C. Pi. Cavness, Page 18
Thare is no general'statuto creating the office of Assist- ant District Attorney that is applicable to all District Attorneys. There ara numerous statutes creating the ofSice of Assistant Dis- trict Attorney and Assist-ant Criminal District Attorney that are applicable to districts npecifically named or identlfied,by other descriptions such as population brackets, or number of counties embraced theredn, etc. It Is our opinion that, where the only authority conferred upon the District Attorney of a designated district to appoint an Assistant District Attorney is Sound in an appropriation bill vhich makes an appropriation to pay the salory of an Assistant District Attorney, the assistant thus authorieed to be appointed is not in fact an officer with all the powers and dutios OS his prlncipl, bec~usc no such office hs3 bepn, or can be thus, created by the Legislature. The mere appropriation by the Legislature of money for the payment of compensation to the incumbent of a specified posj.tion does not have the affect of creating an office, or of glvlng such'lncumbent~ the character of an officer. Tho only way an oSfice can be created by the &egisla- ture Is by a statute duly passed for .that purpose& Such an assist- ant as is here bea considered is merely an employee, and not an officer since he is given none of the powers of his principal and is not authorized to perform any of the duties of his principal. Therefore, since this position is not an office and the person appointed thereto Is only an employee, his compensation may prop- erly be provided for In the appropdation bill, and suoh appropria- tion bill is sufficient authority for such appointment and for the State to pay .the appointee the salary provided thcrein.~ ,
,Xt his ouropinio$,therefore, that each and,all of the appropriatlons'harelnabove referred to were in all things legal, which conclusion-makes it unnecessary Sor us to answer any of the other questions~propounded by you.
fruoting that this satisfactorily answers your inquiry, we remain,
Your8 very ~truly, ATTORHEX CEXMAL OF I - .