Article V, Section 21 of the Texas Constitution ("County Attorneys; District Attorneys")

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As amended November 2, 1954:

A County Attorney, for counties in which there is not a resident Criminal District Attorney, shall be elected by the qualified voters of each county, who shall be commissioned by the Governor, and hold his office for the term of four years. In case of vacancy the Commissioners Court of the county shall have the power to appoint a County Attorney until the next general election. The County Attorneys shall represent the State in all cases in the District and inferior courts in their respective counties; 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. The Legislature may provide for the election of District Attorneys in such districts, as may be deemed necessary, and make provision for the compensation of District Attorneys and County Attorneys. District Attorneys shall hold office for a term of four years, and until their successors have qualified.

Editor Comments

As adopted in 1876, this section read: "A county attorney, for counties in which there is not a resident criminal district attorney, shall be elected by the qualified voters of each county, who shall be commissioned by the governor, and hold his office for the term of two years. In case of vacancy the Commissioners' Court of the county shall have power to appoint a county attorney until the next general election. The county attorneys shall represent the State in all cases in the District and inferior courts in their respective counties, 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 by regulated by the Legislature. The Legislature may provide for the election of district attorneys in such districts, as may be deemed necessary, and make provision for the compensation of district attorneys, and county attorneys; provided, district attorneys shall receive an annual salary of five hundred dollars to be paid by the State, and such fees commissions and perquisites as may be prescribed by law. County attorneys shall receive as compensation only such fees, commissions and perquisites as may be prescribed by law." It has been amended once.

Whether the Attorney General (see Article IV, Section 22) or the various county and district attorneys are required to represent the state in certain cases has been the subject of several Supreme Court and Court of Criminal Appeals decisions.

Attorney Steve Smith

Recent Decisions

  • State v. Stephens, ___ S.W.3d ___, ___ (Tex.Crim.App. 2022) ("Zena Collins Stephens appeals both the court of appeals' denial of a pretrial writ . . . . She presents the following question: May the Texas Legislature delegate to the Attorney General, a member of the executive department, the prosecution of election-law violations in district and inferior courts? No. Because Texas Election Code section 273.021 delegates to the Attorney General a power more properly assigned to the judicial department, we conclude that the statute is unconstitutional. Therefore, we reverse the decision of the court of appeals and remand the case to the trial court to dismiss the indictment.")
  • Aguirre v. State, 22 S.W.3d 463, 470 (Tex.Crim.App. 1999) (footnotes omitted) ("The purposes of the constitutional amendment of 1891 and the legislation of 1899 that created corporation courts were to make it clear that municipal courts were creatures of the State and that prosecutors in those courts acted with the authority of the State. Accordingly the legislature decided that all municipal prosecutions would be 'In the name and by authority of the State of Texas.' It continues to be the law . . . . To enforce an ordinance by means other than criminal prosecution, a home-rule municipality may bring a civil action. But a criminal action is brought to enforce the State’s interest.")
  • El Paso Elec. Co. v. Tex. Dep't of Ins., 937 S.W.2d 432, 439 (Tex. 1996) (citations omitted) ("Regardless of how the representational authority is allocated between the Attorney General, District Attorney, and County Attorney, we have held that the Legislature may not divest these officials of their collective constitutional authority by shifting representation to some other attorney employed by the State or under contract to the State. We made clear in Maud, however, that the Legislature may authorize an agency to retain private counsel to prosecute actions, as long as such counsel's authority is subordinate to that of the Attorney General, County Attorney, or District Attorney.")

Historic Decisions

  • State ex rel. Eidson v. Edwards, 793 S.W.2d 1, 4 (Tex.Crim.App. 1990) (citations omitted) ("Texas courts have uniformly declared that the offices of county and district attorneys are constitutionally created and therefore constitutionally protected. The authority of county and district attorneys 'cannot be abridged or taken away.' 'Nor may the State be represented in district or inferior courts by any person other than the county or district attorney . . . . By preventing the Taylor County District Attorney and his entire staff from participating in the Clayton prosecution, the trial court has constructively removed the District Attorney from his elected office with respect to that case.")
  • Garcia v. Laughlin, 285 S.W.2d 191, 197 (Tex. 1955) ("We think that the district attorney was a proper official to represent the State in this ouster proceeding . . . . The county attorney also could bring the action. It is contended that to permit both the county and district attorneys to bring this action might lead to confusion in the trial of the case in the event these two officials should differ on the method of conducting such trial. We think the district judge is empowered to resolve such conflict, and to determine which of the two officials, having equal powers and rights, will best protect the State's interests, and to make such rulings as in his discretion will effectuate this end.")
  • Neal v. Sheppard, 209 S.W.2d 388, 391 (Tex.Civ.App.–Texarkana 1948, ref'd) ("A resident criminal district attorney's duties being fixed by the Constitution, since he acts in the place of a county attorney, his duty is to represent the State in all cases in the district court and inferior courts. To accord to the words 'resident criminal district attorney' as used in Sec. 21, Art. V, the meaning as contended for . . . . There being no express or implied restraint upon the power of the Legislature to create an office designated as criminal district attorney as a part of a district court of general jurisdiction, the act of the Legislature herein under consideration is valid and constitutional.")
  • Hill County v. Sheppard, 178 S.W.2d 261, 262-63 (Tex. 1944) ("The Constitution does not define the office of 'criminal district attorney.' Article V, Section 21, quoted above, in which the term was used, was first adopted in 1876. The Constitution of 1876 as well as the Constitutions of 1866 and 1869 contain provisions authorizing the creation of criminal district courts under certain conditions. In 1883 the Legislature adopted an Act which contained a definition . . . . The office of District Attorney, including that of criminal district attorney, is a constitutional office, the duties and compensation of which are provided for in Article V, Section 21, of the Constitution above quoted.")
  • Allen v. Fisher, 9 S.W.2d 731, 732 (Tex. 1928) ("The Constitution provides that the county attorney shall represent the state in all cases in the district court. By other constitutional provisions the Legislature is authorized to impose that duty on the Attorney General, and, in prescribed circumstances, upon the district attorney. See State Constitution, art. 5, § 21; art. 4, § 22. These constitutional provisions mark the limits of legislative authority to prescribe who shall represent the state and control its interests in a lawsuit in the district court. The Legislature is impliedly restrained from conferring such duty and responsibility on the individual citizen. Maud v. Terrell, 109 Tex. 97, [].")
  • Yett v. Cook, 281 S.W. 837, 843 (Tex. 1926) (citations omitted) ("Since the state can bring a mandamus suit similar in purpose to the one before us, it is elementary that the Attorney General has the power to institute such an action. We shall not at this time determine whether or not the county attorney can, on his accord, institute, in the name of the state, such a suit as the present one. It is certain that, when once lawfully instituted he can, under the express language of the Constitution, represent the state. Const, art. 5, § 21. It is clear, however, that the county attorney can, under the direction of the Attorney General, institute a suit of this character in the name of the state.")
  • Staples v. State, 245 S.W. 639, 641 (Tex. 1922) ("The suits of private citizens contesting the right of a possessor to hold a public office that have been sustained have been cases where the party bringing the suit had an interest in the subject-matter above and different from the commonalty of citizens, and his rights were such that he was permitted to maintain a civil action to protect them. It is necessary for the state to be a party where the action is for the benefit of the public at large, though growing out of a party primary election. The statute cannot confer a right upon private individuals to act for all where it is shown they have no interest different from all others.")
  • Maud v. Terrell, 200 S.W. 375, 378 (Tex. 1918) ("Depriving county attorneys or the Attorney-General of their constitutional authority was in our opinion foreign to its design. It undeniably is open to the construction that the person employed pursuant to its provisions may assist in the prosecution of suits for the taxes, but it cannot be said to require a construction that his action in this regard shall serve to displace those officials in the exercise of their constitutional powers. With this true, the Act cannot be pronounced invalid. For unless those officers are by the Act supplanted in this authority, it must be assumed that the Legislature intended they should be free to exert it as aforetime.")
  • Brady v. Brooks, 89 S.W. 1052, 1056 (Tex. 1905) ("To discover what was intended by section 21 of article 5, construed in the light of section 22 of article 4, we must look . . . . Is it reasonable to suppose that it was the purpose to entrust absolutely the important function of representing the state as an attorney in all cases in which the state should be a party to the numerous county attorneys or to the district attorneys, should the Legislature see fit to create that office for certain districts, elected, as the case might be, in their respective counties or districts, or to a general state officer, like the Attorney General, elected by the people of the whole state? To ask the question is to answer it.")
  • State v. Moore, 57 Tex. 307, 312 (1882) ("[W]e have no doubt that the attorney general might prosecute, in connection with the proper district or county attorney, such suits as are therein provided for; such action upon his part, however, could not control the right of a county or district attorney to such fees as may be provided by law for such officers in such cases, nor deprive them of their freedom and independence of action as to method of managing and conducting the case, further than he may do so by advisory methods, unless the legislature has the power to impose upon him the powers which the constitution expressly confers upon county and district attorneys.")
  • Spencer v. Galveston County, 56 Tex. 384, 394 (1882) ("In reference to the administration of the criminal laws, the several district attorneys of the state have as full power as have county attorneys, and, by conferring upon them such powers, it is to be presumed that the legislature believed it was doing all that was necessary for the public good, and that in counties where there was a resident district attorney, such counties could manage such litigation as might arise, in reference to such matters as had not been confided to district attorneys, without the aid of a public officer to represent them as attorney, by . . . . With the policy of such a course the courts have no concern.")
  • State ex rel. Clement v. Paris Railway Co., 55 Tex. 76, 80 (1881) ("We think it manifest that the institution of suits in the name of the state to enjoin private corporations from exceeding their powers and thereby creating public nuisances, is such action as, under [Article IV, Section 22], it is for the attorney general to take, or cause to be taken, when, in his judgment, it may be proper and necessary. The power given county attorneys 'to represent the state in all cases in the district and inferior courts in their respective counties' (Const., art. V, sec. 21), does not extend to the institution of suits like this, unless it be done with the sanction and in the name of the attorney general.")
  • State v. Allen, 32 Tex. 273, 275-76 (1869) ("A district attorney, as well as every other officer or agent of the State, has certain prescribed duties to perform. He is an agent or attorney having a special and limited, and not a general power. The several acts of the Legislature comprise his duties, and . . . . When the comptroller of public accounts has officially decided that an assessor and collector has been remiss in his duties, and has furnished the district attorney with an account of his indebtedness, with directions to institute suit thereon, the district attorney has no power to compromise with the debtor, either before suit is brought, during the pendency of it, or after judgment.")

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