Case Information
*1 _: OFFICE OF THE ATTORNEY GENERAL OF TEXAS AUSTIN
Honorable Joe c. Olndn6y
Criminal Dlatciot Attorwy
Robk county
ti41Xd4rMAI Toznr
Dear Sir8
1944, requestlug the on8 rtated therein 18, opinion of this b part; aa fol
pour statement over the hereby rrqusstlng an neral’s Office relative he Offloe a$ Crlmlnal Dirr- risu ot the faot that this o be bound by the d4014ion rendered ourt againat Hill County Tuesday of impoitant that w4 have a ruling on Do48 the person who was aerving au Criminal Dlrtriot Attorney automatloally Broome County Attornrp
“II. What ii hia salary, and fi eet by tho Coamiasionera Court between what limits?
“ISIW Bow mar17 asrletantr are now permitted
ana what may their salaries be?
Donorablr Jo4 0. Cladney, prig4 2
4Th4 aeseessd valuation of th4 county 1s slightly less than $90,000,000.00; and the lataat Federal Census glvea the oounty about 51,000 popu- lation.w
In th4 oas4 or Dill County, T4xa8, p4tltloa4r. v.
C4o. H. Sh4ppard, Comptrol.l4r, rmspondent (not yet reported) ttm ihapreae Court hrld Art1014 3269, Vdrhon*s Annotated Civil Art1014 $26~ was orlglnally 4naot4d by invalid. Statutes,. the 42nd L4glslatur4, R4gular S4sslon, 1931, as S4nat4 Bill Ho. 220, Chapter 354, Page 044, General Laws of T4xas. Th4 original Aot was appllcablo to oountlds in this Stat4 having a population of not less than 33,200 and not sor4 than 75,000 inhabitants and not oontainlng a oity of more than 20,000 in- habitants as d4terralned by the last pr4oedlng Bsderal C4nsus and 4aoh suooe4dlng Pedrral C4nsus thsr4after. and in whloh The 42nd oouhtles ther4 wet4 on4 or mor4 Judicial Dlatrlats. at the lrlrst Call46 Seasion, 1931, as4nded Seation 1 Lagislatur4 of S4nat4 Bill 220, supra, so. as to mak4 said Aot applIoabl4 to oouutiss having a population oi not less than 32,000 and not mor4 than 75 000 lhhabltauts and not containing a olty of mor4 than SO.000 fnhabltants as detersine by the laet preceding federal 04nsus, and 4aeh suoosrdlng V4drral C4nsus thereafter. (Thr azwtndment to said Beatlon 1 her4totor4 wntloned is 9. B. No. CO, Ch. 3.S. p. SO, 42nd Leg., First C. S.)
Vernon’s ¬ated Civil Btatutas do not oontals
th4 amendment to Ssotlon 1 heretororcr mentlowd, how4ver, w4 must assum th4 Suprae Court kn4w of sald am4ndimnt and oonsldered th4 Statute as am4ndsd in th4 oasr ot 8111 County 1. Qeo. H. Sh4p- pard , supra. Therefor4, Axtlole 320q, supra, a8 amended, 1s ln- valid under th4 holding Suprwm Court in the said ease of Xl11 County v. 040. Ii. Sheppard, suprae
811104 Artiolo 3269 has been hrld Invalid the Supreme Court, it nsosssarfly follovvs. that th4 ofilor purportedly areated “Criminal Distrl4t Attorney,” doer not 4xlet in those counties Coining within th4 provlslons of said artlol4. W4 do not think that It oan be said that where a person runs for and 18 4leoted to the oiflc4 of 4Crlnlnal Dlstrlot Attorney” undar th4 provisions Of Utiol4 326q, that suoh pereon is now the County Attorney after said statuts h.88 b44n held invalid. Thsrefore, w4 rssgeotiully answer your first question, as stated abovr, in thr nrgativ4.
nonorabl4 Jo0 C. Oltidney, p1g4 3
fn r14w or th4 for4golng, and our Opinion No. O- 3158, it 1s our opinion that Mr, Oladmy fs sow a d4 fa0t0 It 18 our turthrr opinion that th4 lr al tit14 oounty attorn4y. to the oowty &torwy*s Offi04 Oodld Only be roWred L on4 or two W~YS~ by 414otion, or by appointvmt to that offi M~F. Ol.a&ey has n4ith4r hem l lrotrd tior appointed to the offi Of county Attors4y, l o hs never had lrgal tit14 *O th4 OOWtY at- It rhmld b4 born4 in t&d that ths dr faoto torn4y's offfoe. of his offio4 iwst surrend4r poso4sslon as 800B as a 0rii04r 94rsos is duly 4lsotrd OT agpointrd to th4 off104 ad ha* putii- Equity will not lrnd him its aid to flwl as provided by law. r44traln a ~duly appolnt4d 90x80s fms rntering upon the dis- it rOStrain the oharg4 of the duties of the offfo4, BOOr will payment of the salary to him. (B4e Dhr T* DmWn, 191 2. D. 379, and Tex. Jur., Vol. 34, Q. Sea)
Rusk County ha4 a population 32,484 lnhabltants ao- oordlng to thr 1930 Fsd4ral C4nsu8 aad said Ooanty has a popula- tion or 81,023 inhabitants aooording to the 1940 federal Cewus. As Busk County had a pcqmlatlon 58,464 inhabitants aooording prorlslons of to th4 1930 Fodrral C4neu8, under the applioable Art1014 SW3 and Art1014 3891 th4 naxlnum oom 4nration of th0 County Attorney of Rusk County cannot rxoeed [1] 3300 p4f year. th4 for4golng VBrnon*s Ahuotateb Civil vi4w or Statutes, and Seation 13 of Art1014 39l&, statute4 County Attorney of Roik In th4 dutlss of Dlstrlat Attorn4y must b4 paid County who performs is mon4y as annual salary in tw4lv4 squal lnstallm4nts 0r not 144s than the total sua sarndd as ooapsnsatlon him in his orrioial 0aEaOity for the fisoal y4ar 1935 and not mop4 than th4 nuixiaum allowed suoh 0ffl04r under laws @XlStlng on August 24, 1935. AS hsr4toror4 statrd, th4 maximus salary or tha County Attorwy or Rusk Cowty, under A~10108 3083 and 3891 18 $SM)O p4r ysar, how- 4V4r, under th4 prorlslons 0f SeOtiOB 13 of Art1014 39124 the mXknOa awount allowed the County Attorney as salary my b in- 0rrased on4 p4r oent for 0aoh one million dollars ~a! uation 0r I part thereof 1n 4x0488 of twenty million fraotional dollar* talus- Uos o’l4r and above th4 pn~uioon allow46 suoh offlO4r under laws (944 th4 oasas or Ha0ogQohes County 4XistiBg On Augu4t 24, 1958, 111. (26) 901, and Daoogdoohes Coanty v. wiBa4r, x* ~4Bklas 140 8. 140 9. w. fad) 978)
Honorable Jo4 C. Gladney, perge 4
WI now consider your third question. Artlo 331, V4rnon’e Annotated Civil Statutes, provides, in effect, th3t county attorneys, by oons4nt or th4 oo;amiosloners* oourt, shall hzve power to appoint in writing one or aOr aesietants, not to 4roeed three, ror their respeotive Countlea, who shall havr the I same powers, nuthorlty and gualliiOation8 as their prinolpals, 331, was enacted
at whose will th4y ehall hold oifice. Article in 1891, and applied only to the appointsent 0s aaiistant OountY Art1014 $908, Vernon’a Annotat4d Civil 3tntutaa. as attorneys. am4nd46, is 8 later statute, r4g .rding the appoint-Wnt Of de- oounty or pr4OinOt putias, assistants or olerks by dlatriot orriosrs. Articles 331 and 3902 must be oonsldsr46 and oonstrued In view oi Mese statutes, together, ls~our ODinion, that it a4slstaBts of the County Attorney or Rusk OouBtY must be appointed Considering th4 two statutes ln oomplianoe with said statutes, together, it is our opinion that it is within the dleoretion of the oommissioners* oourt to determine ths number Of assistants to br appoint,&, as in th4 disor4tion said oourt may b4 proper- Stat4d another way, that portion of Art1014 331 limiting the uum- ber of assistants that mny be appointed is no longer applioable, the other portions of Art1014 331 ar4 applioabl4 and the however, Seo- assistants must oonply with th4 provisions of said statuts. tlon 2 of Article the.oompsnsatlon 3902 is appllcabl4 to Rusk County and will govern
to be paid the assistant county attorney. The comp4nsatlon or the first aeeistant oounty attorney oemnot 4xe44d $2,000 per aMUQ and th4 oomp4nsation of other assistants of the oounty attorn4y oannot 4x0446 41,700 p4r annum 4soh. Ths oom- p4nsation of said assistants to b4 flxsd the comml4sioners* oourt in oomplianoa with Section 2 Of i&i014 3802.
W4 hsv4 oareiully oonsldrrsd your letter of Uaroh 1, 1944, supplemsntlng your letter of yebruery 24, 1944, whioh is quoted in part above. hrter oar4fu!.ly oonsidering Art lcle 326n, VBrnon’s Annotet4d Civil Statutes, olted in your letter of Sarah 1, x4 are of the opinion that said statut4 has no applioation whatso- 4Per to the questions under oonelderation.
W4 h~iv4 also oaretully oonsid4red various Acts orsating ths dlfrarent District Courts in Rusk County, and it is OUT opinion theo4 AOtS do not airsot our answers to your that W44tions as her4toror4 stated, Art1014 V, i%otlon 21 or the Stat4 Constitution, among other things, provides, 1B ;rfect, the bgislature may provldr for the eleotion of district attorneys in said districts as may be deemed neoessary and make provtsion for the comp4nsation or said district attornrys, Aft4r car4- rullY r4Vi4Wlng krtiol4 322, Vernon's Annotated Cl*11 Statutes It is noted that said statute does not authoris4 th4 eleotion & a di4trict attorney for any of the Judicial Districts or Rusk County. Therefor4, there is no statutory authority authorizing the oleotlon Or a distriot attorney for said oounty or the Judicial Dirtriots thereor. *5 EC---- !
Iionorable Jo8 C. Oladney, pago 5
You oteto In your lottetr of Yaroh lrt that yooo ara anxious to know what ofi oxfat In Ruek oomty at thla tine, that is, lf it i8 County Attorney, Criminal District At- torney or Dirtriot Attorney. In via* of the f orsgolng, you are reepeotiully it 18 our opinion that the oon- advised 0rri08 0r County Attorney in m8k cotrnty etitutlonal rxiatr at thlr tlao, and that tha offloe oi Criminal District Attorney or Di8triot Attorney do88 not 8xi8t.
Your8 very truly AT!l'ORNEY GENERAL OF TEXAS Ardrll William8 Ao8istant AW:EP