Case Information
*1 OFFICE OF THE AITORNEY GENERAL OF TEXAS
AUSTtN
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Your opinion r
been reeeioed and oom
laring quotation repra
letter:
San Augustine fen to aeteEn1ne not conr.aLFl- 8 filed a ccnteat a oopy ot aontxe- s Xcuillal, county ation ie whether under rirticle e DUTY of the County Attorney to lidity of the elsation..,." Article 66640a, Vernon's Annotated penai Code, in p?COVidbg iOr % pO8Sible Of Such a lOCal COnt8St OpttOn aleotion reads, in so far as applicable, as follows:
"....aadthe pmaeeili~gs in suah (local
Eon. Joe J, Fisher, Page 2
option electiun) COnt8st shell be ccnduoted in the 8ene rranner, as now ~ovem the con- test or’ say general election....* (Parenthe- tical fnnortion ours) 1925, gro- ikticle 3069, Zievfsed Civil 8xcGdm3,
vides: *ff t.ke contest be for the validity of an election held for any other purpose than the election of an officer or offioem in eny county. or part of a county or precinct of a 0ounty;or in any incorporated city, town or village, tip resident or suoh county, FreCi%?t, city, tom or village, or any, number o?' such residents, may contest such electlon iu the dis- trint court of such county in the sme .mmner and under the sm.m rules, as far as applicable, as are prescribed in this chapter for contost- In3 the val:dity OP an eleotion for a ccuzty ofeice."
The suCceedin Article 3070, Revised Civil Sta- tutes, 1925, declares:
*In any case provided for i;n the preaed- lng artiole, the county attorney of the county, or if there is no ootmty attomey,.the district attorney of the dLstrict, or the rayor of the city, town or vLlla~e, or the officer nrho de- clared the ofricial result of' said election, or one of then, as the case rzay be, shall be Dade the oonteetee, and shall be served with nctice and stotment, and shall file his reply thereto as. in the cam of a coiltest for office;...." Artiole 3043, Revised Civil Statutes, 9925, pro- vides that: . . . shall, within ten days Vhe person
alter~receiving such notice azd statemnt, cle- liver, or cause to be delivered, to said con- his aSent or attornsg, a reply there- test&&, to in writing." *3 Ron. Joe J. Fisher, Page 3
Artiale 5, Section 21, of the Constitution de- 01ares:
"....'i'he oounty attorneys shall repre- sent the SWte in a3l cases Fn the District and inferior courts inthelr respective coun- ties; but if any county shall be included in a distriot inwhichthore shall be a dietrfot attorney, the respective duties of distriot attorneys and countp attorneys shall in such oounties be regulated by the LBgislatu.re....w
It till be noted that the latter olause of the .~onstitutional proviso set ou t above affixes an important 'Vi-estrietion or qualification upon the generaa power an- nouneed in the first clause. San Augustine County is with- in a $udiaLal distriat having a district attorney; there- fore the terms of the Constitution relegates to the k&v- lature license and authority to define the power and duties of the county attorney.
The ten ,"duties" as used in the Constitution inherently implies the further idea of "power" or -author- ity." Consequent$y, we must look to legislative aat in order to asoertain the extent as well as the,definition of the county attorney's duties. .Zis powers and duties are uo-extensive. In other words, where there is no au- thority there .ctan be no duty; and where there is no duty there can be no power or authority. See~liechem on Fublia Offices and Officers, Sections 501 and 502.
It is to be observed here, that we have been unable to find any statutory provision requiring or au- thorizing a county attorney to defend the validity of.a local option election In event of contest proceeding. ~Eor do wa believe that the terns oi~titicle 5070, phztsed Civil Statutes, 1925, supra, im~se such a duty. - statutory provision merely provides that the ,naroed contes- tee in aQ election oontcst "shall file his reply" (under- scoring ours) to the natiae and i;tutement of oontest.
The case of Eoore et al vs. Commissioners' Court, ol= c?itus county, 192 SW 605, involving an election contest cn ano';her natter, while not decisive of this ques,tion, is strohgly persuasive. The opinion is short and we quote it *4 Iion. Joe J. Fisher, Page 4
in ?ull, to-wit: J. The proceeding is to oontest "I-3, held in justiCe precinct Bo. 3
an election o? Titus county for the purpose of preventing the ruming at large of hogs, sheep, and goats in said precinct. The court sustained a gener- al demurrer to the petition, and the appeal is to review the ~ruling of the court in that respect.
"The petition alleged that the county 'attorney had agreed that a notice of the con- test need not be given to him by the ccntes- tants and had agreed to waive such notice and service thoteof upon him. The petition does not undertake to allege that a written state- ment o? the grounds of the contest had been served upon the county attorney of the county, The ntatutezrequires the,:~iving ok? notice of the contest (Artiole 3151, Vernon*s Saylea' Statutes), and zequiiws that the county attor- ney in this character o.?:proceeding *shall be &+seS?k~~ with notice ands-tatement~ (Article
307S,"Vornon*s Saylea' Statutes)
&xl servink of. the notice &u&d w statute is not for the benefit o? the county attorney and~~necluliarly personal to him, who is merely a formal party to such proceeding Fge giving and serving o? the notice preocgbed bg the statute is the prerequisite to the juris- diction of the drstriot court. Cauthron v.
h.lrphy, 61 Tex. CIV. Appl 462,~ 130 5, vi. 671. A speci?ic mode of contesting an election having been prescribed by the statute, that particular ncx48e alone'can be presorted to; it is exalusive of every other nodfi. And this particular pro- ceeding 15 not a contest as between two persons, so as to suthorize'and warrant the oounty attor- ney to waive a statutory proee&ure essentially involving jurisdiction of the district court.
"It is believed the court did not err in sustaining the demurrer, end the judgment is a??irced.'9
.
Hon. Joe J. Fisher, page 3
You are therefore raspecti?xlly advised that it is the opinion OF this department that it ia not the duty or the county attorney td deiend the validity or a oostoated local option eleotion. Ycu are iurther re- spsctrully advised that it is the opinfon of this de- partment that when the coumty attorney is Eade contea- tee and served with notice under Xrtialas 3043 aid 3070, I?evisad Civil Statutes, 1925, it then beooraes the duty of tha county attorney to prepare and file the written contsstee'e reply as required by said statutes and that, when this fn done the county attorney has fully disc charged his statutory duty. +?ny additional act or acts 0r the county attorney b9g0na that 0r riling his reply would seem to rest'gurelp within the discretion or the county attorney. Them would appear so other criterion which would be resorted to.
The opinion or th% department, dated April 22, 1938, mitten-by Fion. Jce. @harp, assistant Attorney General, Vol. 381, page 120, holdlq to the contrary, aitesthe case of Xooker vs. ‘r'oster, 1 SVf (2nd) PC, which cam we think is nslthcr decisive nor persuasive, and said opinion is therefare overruled.