January 25, 1951

Eon. F. T. Graham             Opinion Ro. v-1147.
County Attorney
Cameron County                Re: Authority of a county
Brownsville,Texas                 attorney to prosecute
                                  violations of municl-
                                  pal ordinancesin co%
Dear Mr. Graham:                  poratlon court.
          Your request for an opinion presents the ques-
tion of the duty of the county attorney in a county where
there is no resident criminal district attorney to repre-
sent the prosecution in corporationcourt, where the of-
Sense charged is a violation of an ordinance,but not of
any penal statute of the State of Texas.
         Section 21 of Article V, Constitutionof Tex-
as, provides in part:
         "The county attorneys shall represent
    the State in all cases In the District and
    inferior courts in their respective coun-
    ties; but if any county shall be included
    in a district in which there shall be a
    district attorney, the respective duties
    of district attorneys and county attorneys
    shall in such counties be regulated by the
    Legislature."
          Sy'the express'terms of the above constitutlon-
al provision and under the decisions of the courts of this
State, %he county attorney has the right, and is charged
with the duty to represent the state in all prosecutions
Instituted fog the violation of the criminal laws of the
state In the corporation court, notwithstandingsuch pros-
ecutions may appear to be for violttion of ordinances of
the city covering the same ground. (RmphaSisadded
throughout) Rowth v. Greer, 90 S.W. 211 (Tex.Civ.App.
              f    Ha I County v. Stewart 91 Tex. 133,
i?"z:W:r$$ T%3$j; 7Jsoi v. City of San Anielo, 94 S.W.
436 (Tex.Civ.App.1906).
         Cities and towns may, within their delegated
authority, prescribe offenses by ordinancewhich are not
punishable under State penal statutes. Acres v. City of
Hon. F. T. Graham, page 2   (V-1147)


Dallas, 32 Tex. Crlm. 603, 25 S.W. 631 (1894); Zydias
Amusement Co. v. City of Houston, 185 S.W. 415 (Tex.Clv.
App. 1916, error” ref.).

          Prior to 1899, the Texas courts had sanctioned
the prosecution of cases and th?issuance of process in
the name of the municipal corporationrather than in the
name of the State of Texas where violation of an ordi-
                    Johnson v. Hanscorn,go Tex. 321, 38
E?e7r     ~~;~~dia~ksonv~ sway-n e, 92 Tex. 242, 47 S.W.
711 (1898I; Ex pa    B       11 Tex. Ct. App. 159 (1881).
Under this procedure,It wai held in Jackson v. Swayne,
a,     that a county attorney could not compel a city
recorder to allow him to prosecute complaintsfiled In
the name of the city which charged acts violative of
State statutes. The case did not hold that the State
had no interest in enforcing its penal statutes in a
corporationcourt; it held merely that the couuty attor-
ney had no authority to prosecute a case in the name of
the city.
          In view of the constitutionalprovision that
all prosecutionsshall be carried on in the name and by
the authority of the State of Texas and that the style
of all writs and processes shall be 'The State of Texas"
(Art. V, Sec. 12, Tex. Const.) and the above constltu-
tlonal provision that the county attorneys "shall repre-
sent the State in all cases in the Mstrlct and inferior
courts in their respective counties,"the conclusionto
be drawn from these cases is that the real party in in-
terest in cases involving violations of ordinances only
Is the city rather than the State. Otherwise, these
prosecutionswould have been required to Abein the name
of the State and the county attorney would have had the
right, as well as the duty, to represent the State in
such actions.
          The CorporationCourt Act of 1899 (Acts 26th
Leg., 1899,  ch.55, p.40) redefined the jurisdictionof
corporationcourts and changed the manner of conducting
proceedings therein by providing that the ccmplaint shall
begin "In the name and by authority of the State of Tex-
as." Art. 867, V.C.CiP. This statute was construed in
Howth v. Greer. supra, where the court said:
          * . . . We think this shows 811intention
     on the part of the Legislaturethat such
     prosecutionsas may be instituted In the
     corporation court for violation of the crim-
     inal laws of the state, which are also made
                                                            33
Hon. F. T. Graham, page 3   (V-1147)


     violations of ordinances of the city, not-
     withstanding such prosecutionsmay purport
     to be instituted under the ordinances,shall
     be regarded as state cases, cases in which
     the state is not only a nominal, but a real,
     party; . . ."
          It la our opinion that the Legislaturedid not
intend by Article 867, V.C.C.P., to make the State the
real party In interest in prosecutionsinvolving vlola-
tlons of ordinances only, but merely intended to make the
State a nominal party. The State being only a nominal
party, the county attorney 1s not required to make ah ap-
pearance for the State and "representthe State" in such
actions.
          I?orIs there anything In Article 869, V.C.C.P.,
imposing a duty upon the county attorney to prosecute
these violations. This article, which Imposes the duty
upon the city attorney to prosecute such actions, pro-
vides that the county attorney %ay, if he so desires,
also represent the State in such prosecutions,"and thus
is merely permissive insofar as the county attorney is
concerned.
          It is our opinion, therefore,that the county
attorney has no duty to represent the prosecutlon'lncor-
poration court when the offense Is solely for the viola-
tion of an ordinance and no penal statute of the State Is
Involved.


          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 statute
     of the State is involved.
                                  Yours very truly,
APPROVED:                              PRICE DANIEL
J. C. Davis, Jr.
County Affairs Division
Charles D. Mathews
First Assistant
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