Shepperd v. Alaniz
| Decision Date | 12 June 1957 |
| Docket Number | No. 13187,13187 |
| Citation | 303 S.W.2d 846 |
| Parties | John Ben SHEPPERD et al., Appellants, v. Ignacio ALANIZ et al., Appellees. |
| Court | Texas Court of Appeals |
Will Wilson, Atty. Gen., J. W. Wheeler, Riley Eugene Fletcher, John R. Lennan, Asst. Attys. Gen., for appellant.
Eskridge, Groce & Hebdon, Rudy Rice, San Antonio, Gordon Gibson, E. James Kazen, Dist. Atty., Laredo, for appellees.
This is an appeal from an order of the 49th District Court of Webb County at Laredo, granting a temporary injunction commanding Honorable John Ben Shepperd, Attorney General of the State of Texas, Davis Grant, Assistant Attorney General, William King, Assistant Attorney General, Frank Pinedo, Assistant Attorney General, and Dan Moody, Jr., Esq., 'to desist and refrain from resuming or continuing the colorable hearing commenced by defendant Moody in Webb County, Texas, on August 1, 1956, from opening the ballot boxes used in said primary election and inspecting or counting the ballots cast in said election, from examining the records thereof, and from issuing or causing to be issued any subpoenas to witnesses or otherwise seeking to cite or interrogate any witnesses under oath in connection with said attempted hearing or with said Cause No. 104,803, from causing the individual plaintiffs to be cited for contempt of the 98th District Court as aforesaid, or attempting in any manner to have them punished as for contempt, and to desist and refrain from further prosecution of said Cause No. 104,803 in the 98th District Court of Travis County, and from taking any further or other action in that or any other court concerning the primary election held in Webb County July 28, 1956, or the run-off primary election to be held August 25, 1956, or the conduct thereof under color or authority of any provision of Section 130 of the Texas Election Code (Art. 9.02 or Vernon's Texas Election Code) until the final trial of this cause or the further order of this court.'
The validity of the above described temporary injunction depends upon whether or not Section 130 of the Texas Election Code has the effect of giving to the Attorney General of Texas the exclusive power to investigate the conduct of the General Primary Election held in Webb County on July 28, 1956, and the making, canvassing, or reporting of the returns, and the exclusive authority to impound all of the election returns in the hands of any County Clerk, District Clerk, or any other election official, by applying for and obtaining an order of a District Court, placing such election returns in the custody of the court, to be examined by the Attorney General in the presence of the District Judge or Grand Jury, and whether or not the Attorney General has the exclusive power to do the other things which are provided by said Section 130 of the Election Code. If the Attorney General of Texas has only concurrent power, along with the District Attorney of the 49th Judicial District of Texas, to investigate the conduct of said election, to impound the ballots and do the other things provided for in said Section 130, then, and in such event this temporary injunction would be proper, because the District Attorney of Webb County has first exercised this jurisdiction, and instituted a proceeding in the 49th District Court of Webb County, seeking to do the things provided for in said Section 130, and having thus assumed jurisdiction of the matter, he would have exclusive jurisdiction to proceed with it, and the Attorney General would not be authorized to institute another proceeding for the same purpose in the 98th District Court of Travis County, Texas.
Thus we come to a consideration of the respective duties of the District Attorney and County Attorney, on one hand, and the Attorney General, on the other, in the investigation of the conduct of elections and the prosecution of any election law violation that may be discovered.
Article 5, Sec. 21, of the Texas Constitution, Vernon's Ann.St., authorizes the County Attorney, and in some instances the District Attorney, and makes it their duty, to represent the State of Texas in all cases in the district or inferior courts of their respective counties, while Article 4, Sec. 22, of the Texas Constitution makes it the duty of the Attorney General to represent the State in all suits and pleas in the Supreme Court of the State, to which the State may be a party. Thus the question arises whether or not the Legislature has the power to give to the Attorney General the exclusive power to represent the State in District Courts, for the purpose of investigating the conduct of elections or impounding the ballots and prosecuting any violations of the election law which he may discover. If this exclusive right is properly given to the Attorney General and it is not in violation of the Constitution, Article 5, Section 21, then the temporary injunction issued by the 49th District Court of Webb County should be dissolved. There is no conflict here between the District Attorney and County Attorney of Webb County. Both are attemtping to uphold the jurisdiction of the 49th District Court of Webb County. Therefore, the question here presented is the constitutional powers and duties of the District and County Attorneys, on the one hand, and the Attorney General, on the other.
One of the early cases in which this question was discussed is that of State v. Moore, 57 Tex. 307. The Legislature had passed an Act making it the duty of the Attorney General to inspect the accounts in the office of the State Treasurer and Comptroller of Public Accounts, of all officers and all individuals charged with the collection and custody of funds belonging to the State and to proceed immediately to institute or cause to be instituted, against any such officer or individual who is in arrears, a suit for the recovery of funds in their hands. Judge Stayton in speaking for the Supreme Court said, in...
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...Texas law to represent the state. See Texas Const. art. 5 Sec. 21; State v. Gary, 163 Tex. 565, 359 S.W.2d 456, 458 (1962); Shepperd v. Alaniz, 303 S.W.2d 846 (Tex.Civ.App.--San Antonio 1957, no writ). As the deadline for giving notice of appeal approached, Hill filed his own notice. Severa......
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