OFFICEOFTHEATTORNEYGENERALOFTEXAS
AUSTIN
fionornbleC. N. Covnesa
state knd:ciitor
Austin, Texas
Dear Sir:
"We 8x33no3 onakin
of aacount;an4 r
G Assistant District Attorney
- fjji+i
District 3,000. 3,000.
7 Asxlstsnt District AttoXney
- 53ra Dist??lct 2,700. 2,700.
Bon.‘~c.
Ii.COWOS#, PaGo 2
a
, 9
10
11
12
HCXI, C. H. Camm~, Page 3
paPd, an5 in,each im3itidu~l instensevhat years
viaid be involved in a&lLtion to t!xosecsvared by ';.
the Appzwiation Act of tiie47th La~iolatux~?~
IJawill refer to th-3vkiotls mttors ccntalned in
your request as Item 3, Itea 4,,cta., using the ymber fos oaeh
Itea that ym have used.
ArMole Q, SeotZcrn 21, of t'naComtltution of Texas,
is as PoilGws:
“A counf;g attoraey, Pm countks in which
there is not a Fe&dent ci?imicaldistrict attornag,
sha1.ibe elooted by the qualified voters or"each
county, xrhoshabl be caw.~issFonecl by tineGovernor,
a&hold his off%00 for the tam of two yeam. In'
ces~ of vacancrgthe Comfssiooers* Couzztof the
acxmty s'halih3ve pwcr to appol.n$a county attor-
ney untfL the next.geneP3~ekCtfOnn Th3 coiultg
attorneys sha9.3regpesent the State in a13.oases
in the District and inferic~ courts in their me-
spective counties; but if any oomty 3M!S be in-
cludod in e distrLc,cl in Shkh 'kei+cshall bo a di3-
td.ck attorney, the rcspectfve duties of ditit~iot
ottorneys and county attorneys &hall in such cour$ies
be regulntecl by th8 Le@;isla%u.x-e. Y.3 Le&3lature
nay protide for the.ek$tioa of dLstrict attorneys
$.uauoh diStriCtSi GS Wig be d~eecled
3k?COSS3=, aEd
112al:o
p32ovision for the coqensntLo9 of dLstx4Lotat-.
torncys, nriloounty attorneys; provLdlod, dbtric~
attomo~s shall.rooeive an annual salary of five .' .,
hun&*ed dollars, to be psld by the State, and suoh
fens, co1mis3ion3nnb perquisites a3 nay be pro-
vided by law. County attmmgs &?111 recefvo a3
aos@easotiononly such fees, ~m?zLis3LOns and per-
qulASm 8s may be prescr&bedby 1a'J."
Arf;iclo 322, YertionssAmotated CLvl.1Statutes, Ls
In psrt as follms:
'IThefollc~4.~~Jud.FoialDFstricts,in.thfs
s&z&e shall each res-osetivelyelect a DistH.ct At-
topmy, viz2 ... u&h, ... twcnVy-r;eoo!d.,
.a. thiX-
tietln,... th@tiy.-fix&h,,..forQ-sorcn&h, ...fo$ty-
ninth,.... flf-~y-‘~~hLxd,
.., sevarkg-socori1,. . .
:
#
.
:.
.‘,
‘79.5
Hon. C. il.Cam3ss., Page 4
.
wgeu. 1. !n?Al; m3txict Ate@nays ..I:: 311
S~lC~l3l Dlsex?iuts cim~osad of only ona county,
,
2:’
; ‘
non. C. Ij.Cavmss, Pcge 6.
. .
Item 7 Is authorlzad & Article 326k-7, whichis in
ai Po33o~s:
"Sm. 2. That tho DPstslct AttOmey ofthe
$&%I Sudic~al,Dfstrlct or TO-xastg authorlee? to -~ -'
appotnt a9 Assfs"tantDistrict Attorney in additicxa
to that authorizedby Stictio~~2 of'Article 326% GSI
oaxriod fomazrj in Vamon~s Civil.Statute of the
State of Texas',urrdorAct5 of 1331,Forty-s;c~oud
Le&mitLlxe, pa&3 744, C@plm 291.
"Sec.2. The Assistant District.httorneg
providedfor in soctio?I1 shall bo a duly 3icenWxI
attorneyat 3av and a bona fide z%M.dent~of’Travis
county an!3shall poscess a33 IAm aua3ff~c.cstlons
that
era nw ratpS.rodby low of the Di&rLot httiorneyof
the 533?3
sud,iclal
lllatrlct
of t119%ta;aGa
of Tox3aj
shall take the 03th 05 ofX=Qo.; shi~ll.
bo subject to
by tha wP13 0.fthe Distld~t AttOX'ney; aha
r~iijov~l
.. ’
...
_ :~ i , _ /. ~.
Hon. C. II.Cavness, Page 8
"In any judicial district ln this State
consistingof mope than one county ln which there
is situated a CFty or not less than thirty-four
thousand (3&,000)Inhabitantsand not more than';
forty-four thousand (]:]I-,000)
inhabitants,accord-
ins to tho last preceding Federal Census, the
district attorney 3baLl appoint one assistant
district attorney, provided the district attorney
&all furni3h data to the dlstrlct judge of his
district that he 13 in neod of an as,sLstant and
is himself unable to attend.to all the duties rc-
quired of him b3 law, and tbzt it is necessary to
the best interest of the State that an assistant
district attorney be appointed. Ss5.dassistant
district attorney so appointed shall be a quali-
fied resident of the district in which said ap-
pointment is made and shall give bond and take
the official oath. The said assistant district
attornsy shall be a.qualiSiedlicensed attorney
and shall~haveauthority to perform all the acts
and duties of the dlstriat attorney under the laws
of thl3 State; said appointmentshall be for such
time as the district attorney shall deem best in ,,
the enforcementof the law, not to be less than.
one month. Said assistant district attorney shall _i:,'
be paid by the Comptroller for the time of actual
service rendered at the rate of !iVenty~five PIundred
'Dollars($2500)per annum: Said sum shall be paid
upon certificatesof the district attorney of said ,~;.
district that said assistant district attorney has
parformed his duties and is entit1e.dto~pag. The ' ,I~
'_ district attorney of any such district at any time '.'
he deems said assistant unnecessary,or finds that .-
he .isnot attending to hi'sduties as requfrcd by (~
law, by remove said person fron office by mertly
writing to said district judge to that effect.
The 49th Judicial District of Texas is compoacd of
the Counties of D&nit, Zapata,:JimHo&g and Webb. In said
district there was located the City of Iaredo, whose population,
as shovn by the Ped8ro.lCensus of lg!hO, was 39,274. aereforo,
said Judicial District came within,theprovisions of Article 324
of se,ldstatutes.
-.!.
":WQ have been unable"to'flnd.r*ny:,'statute~
spec~lfi&iy 'au-
' .thoplz$ngtho AssistantDi3trlc,t .Attorncg’or Spoelal Investkgator
'for the 30th distrlct.referredto in item 10, or pr83cribing the
q~lifications,~dutiosand compensationof the person appolnted to
880
Honorable C. H. Cavness, Page 9
'suchpckitlon;but, for the reasons hereinafter set forth, it is
our opinion that the appropriationof a salary for such person is
sufficientauthcrlty for bio appo3ntmontand belngps,ld the salary
so provided,
That p&rt of Item 30 pertatiing to the 72nd District is
authorizedby Art. 326-1, Sections 1 and 3 of which read as follows:
"Sec. 1. The District. Attornog of the 72nd
Judicial DLstr:ct of Texas, is horeby~authorized
to appoint one Assistant Dlstrlct Attorney.
". . . .
%c. 3. The Assistant Distrkt Attorney
provided for in Section 1 of tnbs Act shall rc-
cetve an annual salary of $2,500.00,payable
monthly, out of any money,not otherwise appro-
priated, upon the.swornascount of such Assist-
ant District Attorney, approved by the District
Attorney."~
‘.We have been unable to find any statute speclficallyau-
thorizingthe Assistant District Attorney for the 47th dlstr5kt
referred to in Item 11, 'orprescribing the qualifications,duties
and compensationof the person appointed to au& position, but,
for the reasons hereinafter set forth, it is our opinion that~the
appropriat.i.onof a salary for such person fs sufficient authority
for his appointmentand.belng paid the salary so provided.
'Item12 is authorized by Article Xi&:-3 of said.stat-
utes, which is,in part,as follox3:
"sec. 1. Dlafrict attorneys in each.judl-~ -~
cl.aldistrict ti this 3tats containingfive or
more counties havin?;a cornbluedpopulation, ac- '.
cording to the Fourteenth Census of the Uaited
:Sfates of the year 1920, of not less than 98,740
nor in excess of 98,750, shall receive from the
State as py for their servkces the sum of Five
. .-
Hundred (~500.00) Dollars per annum, as nrovided
by the constitution,and & addition thereto, and
ln lieu of the fees, commissions,and perquisites
provided~bylaw, shall recoivo from the S.tatethe
sum of Ten ($10.00)Dollars for each of the first
350 days of every calendar year as compensation
for t3ttcasllng
examlati~ trials, Habeas Corpus
hearings, the sessions of the District Court of
the district they regresent;.andfor performing
kuch other duties as~lmposo~ by lav. -Tno corn--
pensationprovided for in thls:Aci shall be gaid
monthly by:the State upon,warrants'dra-311
by ~the
Bon. C. H:Cavmss, Pago 10
Hon. C. H. Cavness, Page 11
raking the total population of oaid’judlaialdistrict 98,743,
and bringilx said district within the provisionsof tho last
above-quotedst%tuts.
Article III, Section 44, of the Constitution,irovides
as follous:
“The Legislature shall provide by law for
the coskpensationof all officers, servants,agonts
and public COntP3ct3P23,not provided for Ln thin
Const-ltutioqbut shall not grant extra coqensa-
tion to any officer, agent, servant, or public
contractors,after such public service shall have
been pcrfomed or contract entered into, for the
parfomance of the sake; nor grant, by appropria-
tion or otherwise,any ano;mt of ~omy out OP the I
Treasury of the State, to any individual,on a
claim, real or pretended, when the sane shall not
have been provided for by pm-oxisttig law; nor
employ any one l.~the nam? of tie State, anles3
authorizedby pre-existing law.
It is our opinion that each and all of the appropriations
reserved to J.nyour request for whioh we have pointed out statutes
specfffcullycreatlsgand authorizing the offtoial positions for
which atid,approriations mere made were ln coapliance~vaitb sold
Art, III, Sec. 4$ , of the Constitutionof Texas, therefore, that they
were leSa1. Further,-Art.‘V,Sec. 21, of the Constitution,,and.Art.
322, of Vernon*s Annotated Clvll Statutes,hereinaboveset out, au-
thorize each and all of the-offices of district attorney Involved
herein, emI t&e various statutes referred to legally create such of-
ficial positions. Practicallyall of the statutes hereinabove set
out which authorize the appointment of assistant district attorneys
contain the provision @at said asslstant district attorneys
shall have authority to perform all the acts and~dutios of the
district attorney under the laws of this State. Those of said
statuteswhere such specific authority Is not given to aoskstant
district attorneys authorize said assistant district attorneys
to pcrfom tho sorvfces thendistrict attorney 1s authorized to,
perfom. Therefore,it is our opinirm that each and all of said
assistant district attorneys were l~gallyauthorized and that said
~~appropi4atlonswere legal.
the Supre.k ‘Court in ths case of
As to;Item 3,.‘.
-2&c,P&o Rfchapds,
. et al, 155 9. 1~..(2cI),~597, hold that the
,..~
*a .. ,
:_ ”
. . .. . . ..
: ..
-A
I-- i --d---1_;-- .,
Ron. C. Pi,Cavnflss,Peg1212
w?ovisfonsauthariz& the oretltioaof o&~~tLllnal
mdop oort8iQ Ooditi-. sn 1583
g adopted.an Ret which contained a
defini~lon of oritinal d:stx?ictottoma. That Act
provided aa follcws;
I
,
%n. C. B. Ctwness, Pega 33
Hon. c. H.~CaVness,Page 14
in the c&e 0P Commlssloners~Court of LInestone
236 s. I?.970, Texas COlZlliS-
CGIlntyV. CiaI?i%tt,
slon of Appeals, the court da:
"'Section 56, Art. 3, vas Clpart Gf the
o~lglnal Constitutionof 18*?6, There 1s
nothlw in t'nelan,ggaua~;i?of that section
suggastlve of a litnitation cf the effect
of the provfoion against,CrGntlon OS of-
ficos by local or special law tG any cla3s
0~ classes or"offlccs,nor Is there a sug-
gastlon 'ofsuch lfmltati'on in any other
pGrtion of,tbe Constitution. The litlita-
tion rofel~sto_glacesonly, an?lnot to
claones of-Tij;-ficors. 2233places In uiilch
the.croationof offices by sGccia1 or local
Taw is prohibitedare col-nties,cities,
towns,~end oloctlm .md school districts.
%nder Ax&le 5, Section 29, of ourState
Constttution,supra, the Legislature Is given the ~'
power to create the office,of distz4ct attorxneyln
such districtsas it may deem neccosary and to de-
J fine the powers and duties of such ol'flcc?s.This
section of the Csnstltuticnwould also authorize
the Legislatureto create tho office OS district at-
torney ln a specific judicial district by its name
or.any other fozn of do&nation and by the 3ame
token it would authopiee the Le@.sl.aturcto allou
~the district attorney of a particularnamed dl~t:~lc~t
to employ assistanta.
.
"It.is our opinion that bur State Cdnstltutlon
does not prohibit the tsgislaturofrom enactlng a
local or opocial law creating the ofSice of assist-
ant district attorney. Tho Constitutiona009 pro-
~hlbittho creation of county, city, toxin,election
district andnschGGl district offices by local or ~.
opeclal lav;
;
krticle.25,.
Code of .CrlminalProcedure of the State of’
'..,~Texas,'.~preacri~es't~;e!dutles
ofCistrl$t Attorneys as follows:
%auh distr~~t~attornagah&: reProcent'~the State ln all
,'..
crlmlrzl~~cascaln'the d.lotN.ctcGurt3 of his dlstrlct,
0 except iu~cnses vhero hc has .becn,before his election,
'. " I, <
Hon. C. Ii.Cavness, Page 15
.employedadversely. Ifhenany crinhal proceeding
Is had before an exanfnlng court In his district or
before a judge upon bsbeas corpus, and he is not%- ;
, fied of the sane, and is at the tine within the ;.
county where such pmccsdlng is had, he ,shallrep-
resent the Stats therein,unless prevented by other
officialduties."
Acts of,the 47th Legislature, 1941, Ch. 148, p. 207, con-
tainod the JudiciaryAppropriation,a part of which was as follows:.
"Be it enacted by the Lcgis1otur.e
of the State
of Texas
"Section 1. Thzt the several sum of nokey
.herelnspecifledor so much thereof as may be coc-
easary, are hereby approprLatedout of any moneys
'in the State Treasuq, not otherwiseappropriated,
for the purposes herein Indicated as follows:'
". . .
‘%or the Years Endlng
August 31, Aw-$ 31,
(I < '. ~ 1942
. . .~ .
:Xi, Cmpensation of on0 As-
ststant'DistrictAttor- >
neg or one SpecLal In-
ventigator for each of
the follonlngJudicial
Districts:Thirtieth and
Seventy-necond,at$1;800.
per .year.........,....;....3,600.00
"11. Salary of Assists.& District
Attorney in Forty-seventh
Mstric,t............~.....2,510.00 2,510.OO
.. " . . .."
In the case of Terre11 vs. Sparks, 135 S. W. 519, the
Supreuc Court had mder considerationthe pouer of the Attorney
Gonsml to employ an attorney to assist him in performing certain
duties, said attorney not b&.ng an AssistantAttorney General and
the only authority for his enployment being fomd In a bill ap-
propriatingsuds for said purpose. Sec. 1 of said appropriation
bill reads as follous:
non. C. II,Cavnesa, Page 16
‘For the purpose of enforcingany and all
laws of the.state of Texas, and for the purpose
of paying any and all necessary cxpenscs in, ;:.
bringing suits or paying cxponses in prosecuting
same, there is hereby appropriatedout of any
money In the stc?tc treasury,not othoruiseap-
propriated,the sirzi of $25,ooo.oa or 50 much
thereofas map be necessary, to bo cxpendcd
under the dlrcction of the Attorney Goncral by
and with the approval of the ,Govcrnor,ana to
be paid upon warrants drawn by the coqtrollar
of public accounts on vouchers approved by the
Attorney Gcnoral.I’
In holding that the Attornog General uas authorized by
.saidappropriationbill to employ an attorney to asslst’in the
performanceof said duties, the court la.aiddovn the following
principles,oflaw vhhloh.are applkable here:
“The next important question that arises in
the case is: .3&dGou. Campbell and Atty. Gen.
Lightfootauthority under the statute to employ
Terre11 as special counsel to assist the Attorney
General 5.nthe grosccutl@n of the cases named and
other cases which might arise? The pouer to make
the contract must be derived from the statuto lt-
self; thereforewe must construs its terms to as-
certain whether ,or not that authority is given.
For the rule of constructionby \zhLchwe aro to
be governed, we copy from Sutherlandon Statutory
Construction,11341, as follous: whmonovcra
paver is given by statute, everythingnecessary
.tomake it effectual or requisite to attdn the ”
end Is implied. It in a well-establishedprln-
ciple that statutes containinggrants of power
are to be constrdod so as to .lncludethe author-
ity to do all thirgs necessary to accotipllshthe
object.of the grant. The grant of an express
pouer carries with it by neceosnry implicationev-
ery other power necessary and proper to the cxe-
cution of the potrerexpressly granted. Where the
law commands anything to be done, it authorizes
the performance of whatever may be necessary for
executing.its commands.1
‘By.the texms of the statute of the Thirty-
First Eeglolrturobefore copied, tho duty is in-
poocd upon the Attorney Ganeral and the pouicr10
Bon/C. H. Cavncss, page 17 ,
conferredupon him to prosecute suits against those
who are unlawfully claiml,nGthe public lands of the
state, for it Is evident from the torms of the;act
that it was in the mind of the LeGlslaturewhenit en-
acted this law that condltloiis required a vl~orous
prosecutionof tinestate's claims against those who
were lnfrlr@n~ upon the rights in the public lands
of the state. In view of this duty, tha lanDago,
'and for the purpose of paying any and all necessary
~expensesin brin$ng suits OP payln,gexpenses in
pro3ecutlnGsame,( empowers the Attorney Gsncral,
with the concurrenceof the Governor, to expend the
sum appropriatedor so imuchthereof as may be neces-
i'sary to accomplish the purpose specified in the act,
and the cost of whatever might be necessary l.nthe
discharge of the duties tlmo Imposed upon him Is ln-
eluded in the term 'expense.' The second section of
the act shows that in the mind of the Legislature
there was an immediatenecessity for theAttorney
General to make applicationof this fund to the .pro-
tectlon of the.publiclands of the state. Suits were
authoriced~to be brought by ~thelan@age, 'to pay
the expense of.brin&ng suits and also ln prosecut-;
j IT@ the seine.''Cut of this requirement there arose
the necessity and the power of said officers to do,
the thl.n~sthat were required to be dane in order to
instituteand to prosecute those suits, and It re-
quires no argument to show that the services of at-
torneys wer$ necassary to the performance of,this
duty. . . ;
The law imposes certain duties upon a District Attorney.
In the performanceof said duties, he may, or he may not, need tho
services of someone'clse. When the Legislature passed the appro-
priation blll here under consideration,it 1s evident that It was
in the mfnd of the Legislaturethat the conditions were such that
the District Attorneys in the districts named were in need of as-
sistance in the performance of the duties placed upon them by law.
Therefore,even though it was not set forth in said appropriation
bill what the qualificationsof said assistants should be, or
what duties they Vare to perform, said District Attorneys were
authorizedby said approprlatlonsto expend the suus appropriated,
or so much thereofas might be necessary for such purpose, in per-
formlng the duties of thciroffices by employing the assistants
therein provided for.
Hon. C. Pi.Cavness, Page 18
Thare is no general'statutocreating the office of Assist-
ant District Attorney that is applicable to all District Attorneys.
There ara numerous statutes creating the ofSice of Assistant Dis-
trict Attorney and Assist-antCriminal District Attorney that are
applicableto districtsnpecificallynamed or identlfied,byother
descriptionssuch as populationbrackets, or number of counties
embraced theredn,etc. It Is our opinion that, where the only
authority conferredupon the DistrictAttorney of a designated
district to appoint an Assistant District Attorney is Sound in an
appropriationbill vhich makes an appropriationto pay the salory
of an Assistant DistrictAttorney, the assistant thus authorieed
to be appointed is not in fact an officer with all the powers and
dutios OS his prlncipl, bec~usc no such office hs3 bepn, or can
be thus, created by the Legislature. The mere appropriationby
the Legislatureof money for the payment of compensationto the
incumbentof a specifiedposj.tiondoes not have the affect of
creatingan office, or of glvlng such'lncumbent~ the character of
an officer. Tho only way an oSfice can be created by the &egisla-
ture Is by a statute duly passed for .thatpurpose& Such an assist-
ant as is here bea considered is merely an employee, and not an
officer since he is given none of the powers of his principal and
is not authorized to perform any of the duties of his principal.
Therefore,since this position is not an office and the person
appointed thereto Is only an employee,his compensationmay prop-
erly be provided for In the appropdation bill, and suoh appropria-
tion bill is sufficientauthority for such appointmentand for the
State to pay .theappointee the salary provided thcrein.~
,
,Xthisouropinio$,therefore, that each and,all of the
appropriatlons'harelnabove referred to were in all things legal,
which conclusion-makesit unnecessarySor us to answer any of the
other questions~propounded by you.
fruoting that this satisfactorilyanswers your inquiry,
we remain,
Your8 very ~truly,
I ATTORHEX CEXMAL OF
-
.