Texas Constitution:Article V, Section 21 and Texas Constitution:Article V, Section 22: Difference between pages

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{{DISPLAYTITLE:Article V, Section 21 of the Texas Constitution (''<small>"County Attorneys; District Attorneys"</small>'')}}{{Texas Constitution|text=As amended November 2, 1954:
{{DISPLAYTITLE:Article V, Section 22 of the Texas Constitution}}{{Texas Constitution|text=


'''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.'''
<div></div>'''This section was repealed November 5, 1985.'''


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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 one time.
As adopted in 1876, the section read: "The Legislature shall have power, by local or general law, to increase, diminish or change the civil and criminal jurisdiction of county courts; and in cases of any such change of jurisdiction the Legislature shall also conform the jurisdiction of the other courts to such change." The former section was never amended before its repeal.


Whether the Attorney General (see Article IV, Section [[Texas Constitution:Article IV, Section 22|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.
Note that Article V, Section [[Texas Constitution:Article V, Section 16|16]], as amended in 1985 by the same ballot proposition that repealed this section, provides: "The County Court has jurisdiction as provided by law."


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* ''State v. Stephens'', ___ S.W.3d ___, [https://scholar.google.com/scholar_case?case=16127939302745575932#p--- ___] (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.")
None.
 
* ''Aguirre v. State'', 22 S.W.3d 463, [https://cite.case.law/pdf/11191692/Aguirre%20v.%20State,%2022%20S.W.3d%20463%20(1999).pdf#page=8 470] (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, [https://scholar.google.com/scholar_case?case=15079746630380241710#p439 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.")


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* ''State ex rel. Eidson v. Edwards'', 793 S.W.2d 1, [https://scholar.google.com/scholar_case?case=1063591546933449332#p4 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.")
* ''Chappell v. State'', 219 S.W.2d 88, [https://cite.case.law/pdf/10191077/Chappell%20v.%20State,%20219%20S.W.2d%2088%20(1949).pdf 88-89] (Tex.Crim.App. 1949) ("By Chap. 271, Acts Regular Session of the 50th Legislature, in 1947, and appearing as Art. 1970–333, Vernon's Annotated Civil Statutes, the civil and criminal jurisdiction of the County Court of Hill County was conferred upon the District Court of Hill County. . . . By Art. 5, Sec. 22, of the Constitution of this State, the legislature is empowered to do the thing attempted in the Act: that is, to confer the civil and criminal jurisdiction of county courts upon the district courts. Published notice of intent to pass legislation is required only for local or special laws. If the Act is a general law it is not within the constitutional limitation mentioned.")
 
* ''Garcia v. Laughlin'', 285 S.W.2d 191, [https://scholar.google.com/scholar_case?case=231626589781746982#p197 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, [https://cite.case.law/pdf/10195643/Neal%20v.%20Sheppard,%20209%20S.W.2d%20388%20(1948).pdf#page=4 391] (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, [https://cite.case.law/pdf/10203479/Hill%20County%20v.%20Sheppard,%20178%20S.W.2d%20261%20(1944).pdf#page=2 262-63] (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, [https://cite.case.law/pdf/10291873/Allen%20v.%20Fisher,%209%20S.W.2d%20731%20(1928).pdf#page=2 732] (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, [https://cite.case.law/pdf/10315571/Yett%20v.%20Cook,%20281%20S.W.%20837%20(1926).pdf#page=7 843] (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, [https://cite.case.law/pdf/10327227/Staples%20v.%20State%20ex%20rel.%20King,%20245%20S.W.%20639%20(1922).pdf#page=3 641] (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, [https://cite.case.law/pdf/8253614/Maud%20v.%20Terrell,%20200%20S.W.%20375%20(1918).pdf#page=4 378] (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, [https://cite.case.law/pdf/2267640/Brady%20v.%20Brooks,%2099%20Tex.%20366%20(1905).pdf#page=13 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, [https://texaslegalguide.com/images/57_Tex._307.pdf#page=6 312] (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.")
* ''Hickman v. State'', 183 S.W. 1180, [https://cite.case.law/pdf/8255528/Hickman%20v.%20State,%20183%20S.W.%201180%20(1916).pdf#page=3 1182] (Tex.Crim.App. 1916) ("The Constitution, in section 22 of article 5, gives the Legislature the authority and power to confer jurisdiction on the county court to entertain appeals from the corporation court, and by section 16 of the act of 1899 the Legislature gave the right of appeal in all cases tried in the corporation court. Section 16 of the act of 1899 provides for an appeal . . . . It may be contended that a violation of a city ordinance is 'not a criminal offense,' but section 2 of the act of 1899 so specifically defines it, and it must be so held as applicable to our Code of Procedure in passing on what are criminal cases within the meaning of the words therein used.")


* ''Spencer v. Galveston County'', 56 Tex. 384, [https://cite.case.law/pdf/2179555/Spencer%20v.%20Galveston%20County,%2056%20Tex.%20384%20(1882).pdf#page=11 394] (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.")
* ''Gulf, W. T. & P. Ry. Co. v. Fromme'', 84 S.W. 1054, [https://cite.case.law/pdf/2269525/Gulf,%20West%20Texas%20&%20Pacific%20Railway%20Co.%20v.%20Fromme,%2098%20Tex.%20459%20(1905).pdf#page=4 1056] (Tex. 1905) ("Section 22 of article 5 of the Constitution is in these words: 'The Legislature shall have power, by local or general law, to increase, diminish or change the civil and criminal jurisdiction of county courts; and in cases of any such change of jurisdiction the Legislature . . . .' Under the authority of this section, the Legislature had the power to increase the jurisdiction of the county court by giving to it jurisdiction over the subjects of litigation embraced in the jurisdiction of the justice courts, and also to regulate the right of appeal from the county court to the Court of Civil Appeals, thereby conforming the jurisdiction of the two courts.")


* ''State ex rel. Clement v. Paris Railway Co.'', 55 Tex. 76, [https://cite.case.law/pdf/2181368/State%20ex%20rel.%20Clement%20v.%20Paris%20Railway%20Co.,%2055%20Tex.%2076%20(1881).pdf#page=5 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.")
* ''Erwin v. Blanks'', 60 Tex. 583, [https://texashistory.unt.edu/ark:/67531/metapth28514/m1/618/ 586] (1884) ("We do not think that the twenty-second section of the fifth article of the constitution intended that the mere statutory grant to the county courts of a power beyond that which they were authorized under the constitution to exercise was to be construed as a lawful increase of the jurisdiction of such courts. If so, no matter what jurisdiction . . . . It was doubtless intended that the jurisdiction should be prescribed for the county court, and provision should be made at the same time giving to the district court the power which had been withdrawn from the county courts, or depriving the district court of those which had been conferred upon the latter.")


* ''State v. Allen'', 32 Tex. 273, [https://cite.case.law/pdf/2143418/State%20v.%20Allen,%2032%20Tex.%20273%20(1869).pdf#page=3 275-76] (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.")
* ''State v. Moore'', 57 Tex. 307, [https://texaslegalguide.com/images/57_Tex._307.pdf#page=9 315] (1882) ("That the constitution might empower the legislature to withdraw power from the hands in which the constitution placed it, and to confer the same upon an another officer or tribunal, cannot be questioned; but to enable the legislature to do so, the power must be given in express terms . . . . Such a power is found in article 5, section 22, of the constitution, which provides that 'The legislature shall have power, by local or general law, to increase, diminish or change the civil and criminal jurisdiction of county courts; and in cases of any such change of jurisdiction, the legislature shall also conform the jurisdiction of the other courts to such change.'")


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[[Category:Repealed Section]]
[[Category:TxCon ArtV Sec]]
[[Category:TxCon ArtV Sec]]
[[Category:WikiSEO Extension]]{{#seo:|author=Steven W. Smith|section=Law|published_time=01-01-2015|title=Article V, Section 21 of the Texas Constitution ("County Attorneys; District Attorneys")|keywords=Article 5 Section 21, county attorneys, district attorneys|description=Whether the Attorney General 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.}}

Revision as of 20:40, January 1, 2023

This section was repealed November 5, 1985.

Editor Comments

As adopted in 1876, the section read: "The Legislature shall have power, by local or general law, to increase, diminish or change the civil and criminal jurisdiction of county courts; and in cases of any such change of jurisdiction the Legislature shall also conform the jurisdiction of the other courts to such change." The former section was never amended before its repeal.

Note that Article V, Section 16, as amended in 1985 by the same ballot proposition that repealed this section, provides: "The County Court has jurisdiction as provided by law."

Attorney Steve Smith

Recent Decisions

None.

Historic Decisions

  • Chappell v. State, 219 S.W.2d 88, 88-89 (Tex.Crim.App. 1949) ("By Chap. 271, Acts Regular Session of the 50th Legislature, in 1947, and appearing as Art. 1970–333, Vernon's Annotated Civil Statutes, the civil and criminal jurisdiction of the County Court of Hill County was conferred upon the District Court of Hill County. . . . By Art. 5, Sec. 22, of the Constitution of this State, the legislature is empowered to do the thing attempted in the Act: that is, to confer the civil and criminal jurisdiction of county courts upon the district courts. Published notice of intent to pass legislation is required only for local or special laws. If the Act is a general law it is not within the constitutional limitation mentioned.")
  • Hickman v. State, 183 S.W. 1180, 1182 (Tex.Crim.App. 1916) ("The Constitution, in section 22 of article 5, gives the Legislature the authority and power to confer jurisdiction on the county court to entertain appeals from the corporation court, and by section 16 of the act of 1899 the Legislature gave the right of appeal in all cases tried in the corporation court. Section 16 of the act of 1899 provides for an appeal . . . . It may be contended that a violation of a city ordinance is 'not a criminal offense,' but section 2 of the act of 1899 so specifically defines it, and it must be so held as applicable to our Code of Procedure in passing on what are criminal cases within the meaning of the words therein used.")
  • Gulf, W. T. & P. Ry. Co. v. Fromme, 84 S.W. 1054, 1056 (Tex. 1905) ("Section 22 of article 5 of the Constitution is in these words: 'The Legislature shall have power, by local or general law, to increase, diminish or change the civil and criminal jurisdiction of county courts; and in cases of any such change of jurisdiction the Legislature . . . .' Under the authority of this section, the Legislature had the power to increase the jurisdiction of the county court by giving to it jurisdiction over the subjects of litigation embraced in the jurisdiction of the justice courts, and also to regulate the right of appeal from the county court to the Court of Civil Appeals, thereby conforming the jurisdiction of the two courts.")
  • Erwin v. Blanks, 60 Tex. 583, 586 (1884) ("We do not think that the twenty-second section of the fifth article of the constitution intended that the mere statutory grant to the county courts of a power beyond that which they were authorized under the constitution to exercise was to be construed as a lawful increase of the jurisdiction of such courts. If so, no matter what jurisdiction . . . . It was doubtless intended that the jurisdiction should be prescribed for the county court, and provision should be made at the same time giving to the district court the power which had been withdrawn from the county courts, or depriving the district court of those which had been conferred upon the latter.")
  • State v. Moore, 57 Tex. 307, 315 (1882) ("That the constitution might empower the legislature to withdraw power from the hands in which the constitution placed it, and to confer the same upon an another officer or tribunal, cannot be questioned; but to enable the legislature to do so, the power must be given in express terms . . . . Such a power is found in article 5, section 22, of the constitution, which provides that 'The legislature shall have power, by local or general law, to increase, diminish or change the civil and criminal jurisdiction of county courts; and in cases of any such change of jurisdiction, the legislature shall also conform the jurisdiction of the other courts to such change.'")

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