THE ASTBRNEY GENERAL
OF-XAS
AUSTIN.TEXAR 78711
CRAWPOlzD c. MARTIN
July 26, 1972
Honorable Joe Resweber Opinion No. M- 1180
County Attorney
Harris County Courthouse Re: Authority of County
Houston, Texas 77002 Attorney of Harris
County, Texas, to in-
ATTN: Jerry B. Schank vestigate election
Assistant County Attorney frauds.
Dear Sir:
Your request for an opinion on the above subject matter asks
the following question:
"Is the County Attorney of Harris County au-
thorized to investigate allegations of election
frauds presented to him by written affidavits of
two or more reputable citizens under subsection
1 of Article 9.02 of the Election Code?"
Article 9.02 of the Texas Election Code requires the dis-
trict and county attorneys, in the case of elections involving
less than two counties, to investigate election frauds presented
to them by written affidavits of two or more reputable citizens.
It is held in Shenperd v. Alaniz, 303 S.W.2d 846 (Tex.Civ.
App. 1957, no writ), that it is the principal duty of the district
and county attorneys to investigate and prosecute violations of
all criminal laws, including election laws, and these duties
cannot be taken away from them by the Legislature. See also
Garcia v. Laughlin, 155 Tex. 261, 285 S.W.Zd 191 (1955).
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Honorable Joe Resweber, page 2 (M11180)
It is the primary duty of the District Attorney of Harris
County to represent the State in criminal cases pending in the
district and inferior courts of Harris County, Texas. Article
326k-26, Vernon's Civil Statutes.
It is the primary duty of the County Attorney of Harris
County to represent the State, Harris County, and the officials
of such county in all civil matters pending before the courts of
Harris County, and any other courts where the State of Texas,
Harris County, and the officials of such county have matters
pending. Article 331h, Vernon's Civil Statutes.
Since the investigation of election frauds and the prosecu-
tion for the same are criminal matters, the primary duty to
make such investigations falls on the District Attorney of Harris
County rather than the County Attorney of Harris County. This
does not, however, divest the County Attorney of Harris County
of his constitutional power under the provisions of Article V,
Section 21 of the Constitution of Texas. State v. Moore. 57 Tex.
307 (1882); Harris County v. Stewart, 91 Tex. 146, 41 S.W. 650
(1897): State ex rel. Hancock v. Ennis, 195 S.W.2d 151 (Tex.Civ.
App. 1946, error ref. n-r-e.); State ex rel. Downs v. Harney,
164 S.W.2d 55 (Tex.Civ.App. 1942, error ref.): Shepperd v. Alaniz,
supra: Garcia v. Lauqhlin, supra.
In view of the foregoing, you are advised that under the
provisions of Article V, Section 21 of the Constitution of Texas
and the provisions of Article 9.02 of the Texas Election Code,
the County Attorney of Harris County is authorized to investigate
election frauds. However, this investigation is the primary duty
of the District Attorney of Harris County rather than the County
Attorney of Harris County. Articles 326k-26 and 331h, Vernon's
Civil Statutes.
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I
.
Honorable Joe Resweber, page 3 (M-1180)
SUMMARY
The County Attorney of Harris County is
authorized to investigate election frauds
under the provisions of Article V, Section 21,
Texas Constitution, and Article 9.02, Texas
Election Code. However, this investigation
is the primary duty of the District Attorney
of Harris County rather than the County At-
torney of Harris County. Articles 326k-26
and 331h. Vernon's Civil Statutes.
truly yours,
Prepared by John Reeves
Assistant Attorney General
APPROVED:
OPINION COMMITTEE
Kerns Taylor, Chairman
W. E, Allen, Co-Chairman
Melvin Corley
Bob Lattimore
Jerry Roberts
Max Hamilton
SAMUEL D, MCDANIEL
Staff Legal Assistant
ALFRED WALKER
Executive Assistant
NOLA WHITE
First Assistant
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