Untitled Texas Attorney General Opinion

OFFlCE OF THE A-ITORNEY GENERAL OF TEXAS AUSTIN Honorable I.klvinCombs county Attorney Jefferson County Eecu~ulnt,Tszns ullty Attoxmy fxom under hrticie 3886b, een reedved end oar+ e quote from your xe- by t& 47th h&b+- lve hiay20, ww, J.&astate not en+ thsr a Grlmlnal or a Uietrict XeLn the duty Of 1 crimlnalmattsre ounty devolves upon the I such oounty, the Comaiiaaionara' on petition of such County the duriw a non-eleation ate the office of the Coun%y Attorney in suoh county as theoffice of Grim- ioal Watriot Attorney of such oounty. It provides further that it ia not the lntwt of tkm aot to change the duties in ung way, nor to ornate any new office, but nerelg to ahange the name of the offloe from that of County Attorney to Criminal DlrdtrictAttorney of suoh county. tiocorable!i,efvi~ Combs, Pa@ 2 We are operating in Jefferson County under Article 3d86b, Jeo. 5b, ~hioh grovldea that counties having a population of mre than 125,000 inhabitants, wherein there is no Ma- triot Attorney and the aouuty~attorney per- rorms all the duties or county i+ttomey and Diatriot AttornOyy,and bases the salaries, etq, but no place names my orf-iceas t.batof County Attorney except by inference. "The problem that oonfronts ~16, if I,do change the name of this office Is: iltlll I still 'beable'to operate un&r 38&b, &ec. 5b, whioh apecifioallg provides for the setup under Mhioh we are now Operating. '"Of co&-se, the net statute ia mitten to oover situation8 e&aotly like ours, hut there ie soma doubt In ny mLnd as to whether I till1be left xltbout any statute to oparete under, if the Yuaseia changed, because of the provision is 3$86b, See. 5b, whioh .speoif.ical- lp says '%&et9 there is no District Attorney or Crimlual iU3trfot httorney *. "1 personally believe that 'Senate Bill 312 and the ohm&e in the mme of my office y&illnot effect our operating under nrticle 3886b, ;;iee. 5b, but I teuld greatly appre- data an opinion fmm your office to thst, effsot, or otheruaies,as 80011as possible, in order that I msy proseed to ohangethe naow of my offioe without any doubt as to its erfaat.* Senate Bill 312, 17th Legislature of Texss, reads i&part ao fOllOWSi *seotion 1. CERTAIN COmTY ATTGmD% DESIS8ATXD CXtbQXAL DISTRICT ATTO?UZY. In any county in this State not embraoed in or cohatituting either a Criminal District At- torney's Distriot or a Distriot Attorney's District, and wherein t& duty of representing ‘rionorable Selvti Combs, Page 3 the State in all criminal matters arising in such oouuty devolves upon the County .+kttorney of such county,,the Commis8ioners Court .thereof,upon petition of suoh County r;ttor- ney at any time during a non-election year, may, by appropriate aatlon spread upon the minutas of~suoh Cod58ionar's~ Court, deoig- nate tile office of County Attorney in such county, as the ofrice of Criminal.District Attorney of suoh County, aad the incumbent of such oMlce as the C&ai.nal District At- torney of suatr County; and thereafter arid until such tFme as suoh county shali be in- cluded within a regularly oreated and aanstl- tuted Diatriat Attorney's Dlatrict or C?ira- inal District Attorney's District, such off- ice ahall be designated es the olflce of Criminal Xstrict Attorney of such county, and the inaubent thereof shall be desig- nate6 85 the Crimlnel District Attorney of suah county provMing that suoh change in the deeignati+ and appellation of euoh offioe and the inoumbsnt thereof, as arore- said, shall In no manner alter or af'feot aither the previous elsotion 61~3 qualifioa- tiona of the fnoumbent thereof, nor shall the sams thereafter alter or affect either the rights. duties. or emoluments of suoh ffi hein oumbent thereof; and iroVid- !i&%%*Z that in eU eleotione t herettf ter held to f33.l. such offioe, and so long as thensame shall be 80 Uesignatsd, the said office shall be designated qon the ballot anb ln the eleotlon as theoffice of Crirainal Dietriot Attorney of suoh county; and provid- ing further that in the event any such county be thereafter embrawd in or constitute e regularly areated District Attorney's Dla- triot or Criminal DiStriet Attorney's ilia- triot, the deaignatI.onof County Attorney shall be restored to suoh offioe unless the office of County Attdkey be abolished in such aounty. Lionorabla:,;e1vFn COClbS~, i'i3~6 1+ *sec. 2. WT,&T iz iypy. It is not the intention of this .kotto create any office of Diatriot httorney or any othor Constitutional Office; but i.tis the titefitiohof this i.Ot nerelg to mthorize a change in the ham and a:;= ation 3f the Oflice of C0Ud.g ?~ttorhey and the incumbent thereof in certain counties, xithout othernine ohah&ng or affsctini:the ri&ts, duties, or enalunents eithar of such office or the incumbent thereof. Tiec. 3. &paa. This.;bctis nor,fn- tend.edand ahall not be considered 0)~" cirnstrued RS ropealfrg SIlylaw ?iO‘w ih the statuta boo&s, except those tiircorJlictthmeuitk; but it aiiwllbe cuixulativeCiereof. if . . . n (UnderscoricG oursj Liaction. 5”vof .;rticlejrj&b, Vernoh*s rinmotated Texas Civil titatutes,reads as follows: "sec. 5-3. Ii2all Counties in this State .hayinGa population of over 125,OCiOinhabi- ta;ltsaaoording t.2 tilelatest ~re0edi.h~xed- era1 Ceneus md ic ;Y?Loh there Is tiejiatriot Attorney or criuihal Diatrict 2Lttorneyusd county Attorney perform8 t&e duties of tlicj County and District Storney, the Couhty At- torney In such Counties, upon aworn appli- oation ahowkg the~heccaslt~ tharofor ahd upon approval by the Sormaissiohers~Zourt of such application, shall be authorized to appoint one first assistant County AZtorney who ahall receive a salary ofnot to sxceed Three Thousand Six Duhdred (;3,600.00) Dol- lars per amma, and such other assistants aad employees as are neoesaary who shall ra- ceiva salaries of not ti oxoee& Three Thou- sand ($3,000.00) Dollars per amma. The iorri- miasionerag Court ih eaoh order approvinf: the appointmeat of such assistants and eai- ployees shali atate the nuuber authorized and the amount of oonpensatlor to be allowed each assist or employee; and should the fees of the county Attorney's office be in- Eonorable Melvin Gonba, fjage5 suffiaient to pay the ccmpehsation allowed to such officer, nod also pay the allowable expense aA the selafles of auoh assistacts and employee8 of such of fiae as the %JaIitiS- eionere’ Court my determine are neoeesary to properly perfoma the duties and oarry on the affairs of theroffioe, the Conmls6ionera~ @Jurt ShEdi- ellow the payment of euah por- tion of ~uah expenses and salaries out of the general fund ofthe County as in their judg- ment may be necessary. The County Attorney may also appoiut with the oonsent and ap- proval of the Commissio5ers~ Court sn Aesis- tsrlt County Attorney who need not possesa the \ quallflaetions of County Attorney, but who ahall have the qualifications of a oonpeteht tax man, and a Clerk or Assistant to assist io the aollection of delinquent taxes, end in the riling end proseoutlhg of tax suits. Suoh heslstailt county Attorney shall reoeive suoh salary 88 the timmissiohers* Court may determine, not to exceed Three Thousand ($3,000.00) Dollarsper snnum, and suoh Clerlq or Aseiatant a salary not to exceed one Thousand Eight Z%u-sIred($l,SOO.OO) Dollar8 per annum, such salary to be gsidmonthly out-0r a peroentage or all delinquent taxes collected." It is our opinion that the oonaluslon reached by you la correot, Very truly yours \, 37 (8) Wm. 3. %Ming V&R. if’. PaMing ksslstRrit y-iwzt: A~~+NED AW. 21, 194x AFPROWD (s);,Gerald C. Hahn Opinion Coinmlttee Attokney General of'Texae By C.Z.C. Chairman