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.