Untitled Texas Attorney General Opinion

THEA~~ORNEYGENERAL OF TEXAS November 30, 1959 Honorable Bill Thomas Opinion No. WW-750 County Attorney Taylor County Courthouse Re: Whether the Commissioners' Abilene, Texas Court of Taylor County has the right of election be- tween the employment of an Assistant District Attorney under Article j'26hor Arti- cle 326k-39, Vernon's Civil Dear Mr. Miles: Statutes. You have requested the opinion of this office on the following question: I! . . . whether or not the Commissioners' Court has the right of election between the employment of an Assistant District Attorney under Article 326h or Article 326k-jg? . . ." Article 326h, Vernon's Annotated Civil Statutes, pro- vides: "Sec. 1. In any judicial district in this State composed of more than one county and in which there is a city having an actu- al population of 50,000 inhabitants or more, the drstrlct attorney shall have authority, with the approval of the commissioners' court of such county in which said city is situated, to appoint not more than two assistants, who shall be licensed to practice law in this State, and shall perform such duties as shall be required of them by the district attorney and under the direction of the district at- torney shall have all the authority that may be exercised by the district attorney. The district attorney shall use one of said as- sistants as an investigator to assist In the performance of the duties of his office, in addition to whatever other duties may be required of such assistant. Said assistants Honorable Bill Thomas, page 2 (WW-750) shall take the constitutional oath of office and serve at the will of the district attorney, not to exceed under any one appointment the maximum time fixed by the Constitution for such officers. "Sec. 2. The salary of each of said assistants shall not exceed three thousand dollars ($3,000.00) per year, to be paid by the county In which said city is situated by warrant drawn on the general fund thereof, all salaries payable monthly. The district attorney shall ascertain the population of any city in his district necessary to be ascertained under this Act by making appli- cation to the mayor of any such city for a certificate as to the population of such city. It shall be the duty of any such mayor to ascertain by some reasonable accurant estimate the population of any such city, and his certificate to same under oath shall authorize the district attorney to assume its correctness and act upon the information contained in such certificate in making any appointment of an as- sistant or assistants under this Act." In the absence of a certificate from the Mayor of Abi- lene as to the actual population of that city, we will use the Texas Almanac. According to the 1958-59 Edition, the 1957 esti- mated population of Abilene, Texas, the county seat of Taylor County, was 65,000. Taylor County is located in the 42nd and 104th Judlclal Districts. The 42nd Judicial District is com- posed of Taylor, Callahan and Shackelford Counties, and the 104th District is composed of Taylor, Jones and Fisher Counties. Under these facts, it would seem apparent that Abilene and Taylor County would come under the above statute. However, Article 326k-39, passed in 1957, provides: "Section 1. The district attorney for the 42nd Judicial District and the district attorney of the 104th Judicial District with the consent of the district judges of the 42nd Judicial Dis- trict and the 104th Judicial District, respective- ly, and of the Commissioners Courts in each of the counties comprising the 42nd and 104th Judi- cial Districts, are hereby authorized to appoint an assistant district attorney for the district attorneys of such districts. Honorable Bill Thomas, Page 3 (w-750) "Sec. 2, The assistant district attorney provided for in this Act must be duly and legally licensed to practice law in this State. The as- sistant may be required to give bond. "Sec. 3. The assistant provided for In this Act shall receive a salary of not less than Three Thousand Dollars ($3,000) nor more than Four Thous- and Dollars ($4,000) per annum, said salary to be flxed by the district attorneys of the districts and ap roved by the district judges of the 42nd and 10E th Judicial Districts and by the Commission- ers Court of each of the counties comprising the 42nd and 104th Judicial Districts. In addition to his salary, the assistant shall be allowed the actual and necessary expenses Incurred in the pro- per discharge of his duties, never to exceed Eleven Hundred Dollars ($1,100) per annum. "Sec. 4. The salary and expenses of the as- sistant district attorney provided for in this Act shall be paid out of the general funds of the counties, prorated according to the population of the counties composing the judicial districts." As this Statute sets out, it is a specific Article deal- ing with the 42nd and 104th Judicial Districts only. Both Arti- cles 326h and 326k-39 have as principal subject matter Assist- ant District Attorneys; 326h being a general statute and 326k- 39 being a specific statute. A comparison of Article 326h and 326k-39 reveals various conflicts between the two. Some of these conflicts are: '(1)Number of Assistants. Under Article 326h, it Is possible to have four (4) assistants in Taylor County, while 326k-39 limits the number to one (1) who will serve as assist- ant to both District Attorneys. (2) Method of appointing. Under 326h, only the Commis- sioners' Court of the County in which a city of a population of 50,000 or more shall give approval, while 326k-39 provides that all Commissioners1 Courts in each of the counties compris- in the 42nd and 104th Districts must give approval. Also, 328k-39 provides that the district judges of the two judicial districts must give their consent while 326h is silent on this matter. c Honorable Bill Thomas, page 4 (WW-750) (3) Salaries. Article 326h provides a salary not to exceed $3,000 per year for each assistant to be paid by the county in which the city of 50,000 population is located, while 326k-39 provides for a salary of not less than $3,000 nor more than $4,000 per year which shall be paid by the various coun- ties in the districts prorated according to population. On the effect of a specific act conflicting with a prior general act, oneauthority states: "This rule of construction has found fre- quent and apt illustration where one of the supposedly conflicting statutes was general ,in its terms and the other specific. In such a case it is universally held that the specific statute more clearly evidences the intention of the Legislature than the general one, and therefore that it will control. In such a case, both statutes are permitted to stand--the gener- al one applicable to all cases except the parti- cular,,oneembraced in the specific statute. (Townsend v. Terrell, 118 Tex. 463, 16 S.W.id 1063 [1929). Thus, it is our opinion that this is the proper rule of construction that should be applied here. It is also im- portant to note that Article 326k-39 was passed thirty years after Article 326h, and certainly shows more clearly the legls- lative intent in this regard in the 42nd and 104th Judicial Districts. SUMMARY The Commissioners' Court of Taylor County does not have the right of election between employment of an Assistant District Attorney under Article 326h or Article 326k-39. The District Attorneys must hire the assistant with the consent of the Commissioners' Court and the District Judges under Article 326k-39. Yours very truly, WILL WILSON JMF:mfh Honorable Bill Thomas, page 5 (WW-750) APPROVED: OPINION COMMITTEE W. V. Geppert, Chairman James Irion Iola Wilcox Gordon C. Cass REVIEWED FOR THE ATTORNEY GENERAL BY: Leonard Passma- e