TIIE ATTOI~EY GENEIZAL
OF %-EXAS
April 6, 1962
Mr. Wayne Burns
County Attorney
Howard County
Big Spring, Texas Opinion No. W-1302
Re: Whether the City Attorney
or the County Attorney has
the primary responsibility
in prosecuting criminal
cases appealed from the
Corporation Court to the.
Dear Mr. Burns: County Court.
You have Fqueated an opinion fro! this office
upon the question of whether the City Attorney or -the
County Attorney has the primary reaponslbility in prose-
cuting criminal cases appealed from the Corporation Court
to.the County Court in whkh a trial de novo is required.
Section 21 of Article V, Constitution of Texas,
provides in part that:
II. . . The C.ountyAttorneys shall represent
the State in all caaea in the District,and infez-
lor courts in their respective counties; .but if
a,nycounty shall be included in a district in
.whidh there ahall be a District Attorney,. the
respective duties of District httorneys and County
Attorneys shall in n1q?h.countieabe regulated by
the Legislature. . . ..*’ (Emphasis added)
Article 869, Vernon’s Code of Criminal Proce+e
provides that:
“All prosecutions, in a corporation co&t
ahall be conducted by the city attorneg..ofslich
city, town or village, or by his deputy. m
countv sttorneg of thk county in which said ‘city,
town or village la situated w. if he -so desires,
also npresent the State in such Prosecutions.
In such cases, the safd county attorney shall
.no’tbe entitled .to rqce%ve any fees or other com-
pensation whatever for said’services. The county
Mr. Wayne Burns, Page 2'(WW-1302)
attorney shall have no power to dismiss any
prosecution pending In said court unless for
reasons filed and approved by the recorder."
(Em~hasls added)
-\ Article 26, Vernon's Code of Criminal Procedure
provides In part that:
"The county attorney,shall attend the
terms of all courts In his county below
the grade of district court, and shall rep-
resent the State In all criminal cases under
examination or Drosecution in said county; . . .'I
In the case of Howth v. Green, 90 S.W. 211
(Civ.App. 1905, error ref.) the court had before it the'
question of the authority of,the county attorney to
reprerent the State in cases before the Corporation Court
Involving violations of the penal laws of this State.
The court in its opinion stated that pursuant to the
provisions of Section 21 of Article V of the Constitution
of Texas:
3,. . . It was the.rinht and duty ~of the
~county attorney to represent the state . . .
'"The corfioratloncourt of the city
0f~Beaumont being one of the Inferior
courts of hhe state referred to in the
Constitution, the right of the county
attorney to appear in said court, either
by himself or his lawfully appointed
deputy, and represent the,atate in all
cases pending thereln.to which the state
la a party, Is Indisputable. This riaht
IS also an exclusive right. If the county
attorney, or his lawfully authorized deputy,
appears and offers to represent the state
In such ca~sea,neither the city attorney
nor'any other officer or attorney has the
right to take any part in such prosecution.
Harris County v. Stewart, 91 Tex. 146,
41 S.W. 650. This is clear as to cases
in which oersons are charned with violation
Mr. Wayne awns, Page 3 (Kid-13C2)
of-the criminal laws of the state, of which
the corporation court has .iurlsdlctlonconcur-
rently with ustlce courts; . . ." (Em-
phasis added j
By the expPess terms of the prevlously quoted
constltutlonel and statutory provisions,,and under the
decision of the courts In such cases as Howth v. Green,
supra, it appears clear that the County Attorney.has the
primary duty and responslbillty of representing the State
In all.cases lnstltuted for the violation of criminal lawa
of the State In all courts In his county inferior ~to the
dlstrlct,court.
However; an exception to this statement is found
In Attorney General's Opinion No. V-1147 (1951) wherein
this office held that the County Attorney has no duty to
~represent the prosecution In Corporation Court when the
offense is for a violation of.a city ordinance and no
penal stat,uteof the State Is Involved. In such instances
the.prlmary ~sponsibility of prosecuting the vl6latlon of
a city drdlnance Is placed upon the City At,torneyand
participation by the County Attorney'la merely dlscretlon-
ary or permissive a8 Is evidenced by the la~fguageof Article
869., whlch.states that,the County Attorney . . . may,
If.&! so desires, also represent th..State in such pro-
secutio.ns . .. .'I..
Consequently, we are of the'opinion that, In
view-of,the constltutlonal.and statutory provlqlons per-
talnlng to the duties of the County Attornek, It.ia the
primary re'aponsibllltyand duty of the Coun.ty,Attorneyto
represent the.State in a~11protiecutlonafor .violation Of
the penal.laws of this State when such.vlolatloqa~are
being prosecuted in any of the courts of the county~below
the level:of'diatrlct cdurt.. The exception to th$a rule
Is .that the County Attorney does,hot have the primary
respdnslblllty and duty of repreaPnting,the State In.those
caees,in C.otiporatlon.
Court whicb.concern violations of city
ordln'ancesrather than.penal laws of.tlilsState..
.Aa"nelther the co&titutlonal nor statutori
provisions he=tofore cited contemplate anyone other than
the 'County Attorney a~ssumlngthe 'kesljonslbility
and duty
of prosecuting criminal cases before the County Court,
Mr. Wayne Burns,'Page 4 (WW-1302)
it would, In our opinion, necessarily follow that the
primary duty and nsponslbillty of prosecuting appeala
from Corporation Court to County Court would rest upon
the County Attorney.
SUMMARY
The primary responsibility and duty of
prosecuting cases appealed from a Cor-
poyatlon Court to a County Court Involving
violations of the penal laws of this State
rests upon the County Attorney.
Sln,cerelyyours,
WILL WILSON
Pat Bailey
Assistant
PB:kkc
APPROVED
OPINSON COMMITTEE
. W..V. Geppert, Chairmall
Morgan Nesbltt
Cudley McCalla
T:?omasBurrus
Frank Booth
REVIEWEDFORTHEATTORNEYGENERAL
BY: Houghton Brownlee, Jr.