State v. Moore

Decision Date13 June 1882
Docket NumberCase No. 4582.
Citation57 Tex. 307
CourtTexas Supreme Court


APPEAL from Travis. Tried below before the Hon. A. S. Walker.

J. H. McLeary, Attorney General, for the state, filed both a brief and a printed argument, which are too long for insertion in full. The positions taken will appear from the following extracts:

1. The attorney general has the right under the laws to bring and prosecute suits on behalf of the state against defaulting tax collectors and their sureties in the several district courts of the state, to the exclusion of all other officers and attorneys. Citing R. S., arts?? 2802 a,, 2803, 2800.

2. The district court had no authority to exclude the attorney general from the control of suits brought by him, and on motion of the county attorney to place him in charge of such suits.

3. If the county attorney has any right to appear in such suits at all, it is only as an assistant to the attorney general, and when requested by him, acting as his junior counsel. Citing R. S., arts. 2798, 2799, 2800, 2804, and arts. 30 and 40, Code Crim. Proc.

4. These suits being brought by the attorney general, and the county attorney having obtained control of them wrongfully, to the illegal exclusion of the attorney general, the county attorney cannot claim any fees or commissions for his services or collections.

7. The law nowhere provides for any fees or commissions in suits like these, and the constitution expressly forbids the payment to him of any fees, commissions or perquisites which are not prescribed by law.

D. W. Doom and Osceola Archer, for appellee, filed a brief, and the former an elaborate written argument. In the brief is found the following proposition:

The defendant, as county attorney of Travis county, being required by the constitution to represent the state in all cases in the district court of Travis county, and having been, by order of the court, required to represent the state in the seven cases in which these motions were made against him, and having prosecuted said cases to judgment and execution, and no other compensation than commissions being provided by law for such services, was entitled, under the law, to ten per cent. commissions on all money collected for the state on the judgments in said cases, and, therefore, the second conclusion of law found by the court, and the judgment in accordance therewith, are correct. Citing Const., art. 2, sec. 1; art. 5, sec. 21; art. 4, sec. 22; art. 3, secs. 35, 36-43; R. S., arts. 245, 248, 249, 250, 254, 255, 257, 260, 2797, 2798, 2799, 2389, 2375, 2396, 2400; Code of Crim. Proc., arts. 31, 41, 975, 976, 977, 978, 979, 980, 1112, 1113, 449, 836, 891; Act of August 23, 1876, pp. 284-286, secs. 2-7; Arts. 1112, 1113 of the Code of Criminal Procedure, as it came from the commissioners to revise the laws and as adopted by the legislature; Report of the commissioners to revise the laws, page 13; Act of April 22, 1879, p. 133; Act of August 7, 1876, p. 85; The State v. Railroad Company, 24 Tex., 80; The State v. Norrell, 53 Tex., 427; Spencer v. Galveston County, Galveston term, 1882; Comstock v. Grand Rapids, 40 Mich., p. 397;Clough v. Hart, 8 Kans., 487;Missouri River Railroad Co. v. Richards, 8 Kans., 101.

Counsel also contended that the commissions of the county attorney in such cases were fixed by article 1112, Code Crim. Proc., referring to sec. 7 of the act of August 23, 1876, as the original from which art. 1112 was taken.


This action was brought by the state of Texas, through the attorney general, by motion, against E. T. Moore, county attorney for Travis county, to compel Moore to pay into the state treasury a certain sum of money, collected of A. M. McIlvaine and others by Moore, as county attorney, under a judgment against McIlvaine, who was a defaulting tax collector, and his sureties. Moore, the county attorney, resisted the motion, upon the ground that he was entitled to retain the money in controversy as his commission of ten per cent. on the sum collected from McIlvaine and his sureties.

There were pending six other motions of the same character against Moore, in all of which he set up the same defense.

The motions in the seven cases were consolidated, and a judgment was rendered therein that Moore should pay into the state treasury the sum of $97.90, the same being ten per cent. on sum collected by him in fees due to officers as fees in felony cases, to pay which the appropriation was exhausted, and on that account no commissions on the sum so collected was allowed.

Before final judgment was entered upon the seven motions, Moore paid the $97.90 into the state treasury, and produced evidence thereof to the court, and the court ordered that no execution should be issued therefor. The court adjudged that Moore, the county attorney, was entitled to ten per cent. commissions on sums collected on judgments recovered by him, and that he was entitled to hold the same, and gave judgment against him for the cost of only one motion.

It is claimed that the court erred in consolidating the seven motions.

These motions were all made by the state of Texas against E. T. Moore, and the fact that the money which it was sought to compel him to pay into the state treasury was collected from seven defaulting tax collectors, did not render it necessary to file a motion in each case.

The motions were practically suits, and being between the same parties, the court did not err in consolidating them (R. S., 1450), nor did the court err in refusing the costs of more than one motion.

In the months of February and March, 1881, the Hon. W. M. Brown, comptroller of public accounts, placed in the hands of J. H. McLeary, attorney general of the state of Texas, certain accounts against the following defaulting collectors, to wit:

Against G. W. Loftin and sureties, against J. T. Wilson and sureties, against J. W. Stockley and sureties, against A. McIlvaine and sureties, against J. J. McConn and sureties, against B. B. Meaders and sureties, and against J. M. Elkins and sureties.

Petitions were prepared by the attorney general in his office, and filed in the district court of Travis county, on the dates and with the dockets numbers as follows:

                ¦Docket No.  ¦Style.                                   ¦Date of file.  ¦
                ¦5597        ¦The State v. G. W. Loftin et al          ¦March 11, 1881 ¦
                ¦5607        ¦The State v. J. T. Wilson et al          ¦March 19, 1881 ¦
                ¦5610        ¦The State v. J. W. Stockley, Adm'r, et al¦March 22, 1881 ¦
                ¦5611        ¦The State v. A. McIlvaine et al          ¦March 22, 1881 ¦
                ¦5617        ¦The State v. J. J. McConn et al          ¦March 25, 1881 ¦
                ¦5621        ¦The State v. B. B. Meaders et al         ¦March 28, 1881 ¦
                ¦5623        ¦The State v. J. M. Elkins et al          ¦March 29, 1881 ¦

And service obtained on the defendants thereunder by the efforts of the attorney general.

On the 11th day of April, 1881, E. T. Moore, Esq., filed motions in all the above cases, in which, after setting out that he was county attorney of Travis county; that there was no district attorney; that under the constitution and laws of the state, it was his duty and privilege to institute and prosecute these suits; that these suits had been instituted against his consent, and without his knowledge, by the attorney general, and prayed that the court enter an order in each of said causes recognizing his right to prosecute and control these suits to the exclusion of all other officers or attorneys.

This motion was argued before the court on the 16th of April, in the case of The State of Texas v. J. J. McConn, No. 5617.

The court sustained the county attorney's motion, took from the attorney general the right of appearing and prosecuting in suits he had brought, and in everything gave control to the county attorney to the exclusion of the attorney general.

After this action of the court the several suits were prosecuted to final judgment by E. T. Moore, and the money upon which he claimed commissions was collected on said judgments, partly by him and partly by the attorney general, and the same, less ten per cent. as commission, was paid into the state treasury by the officer collecting the same, which sum E. T. Moore, as county attorney, claimed the right to retain, and his right so to do presents the main question in the case. While it is true that our government is departmental in character, and that the officers of the different departments are to a very large extent independent of and free from the control of the heads of other departments, yet in the very nature of things, in the details of business, occasions will and do arise, where officers of the executive department do and ought to exercise a power at least advisory over some officers, who, although classed in a different department, exercise powers in fact partaking more of the character of executive power than of judicial power; among these are district and county attorneys, sheriffs and constables.

As was said by Roberts, J., in the case of The State v. The Southern Pacific R. R. Co., 24 Tex., 117, in speaking of the powers of the attorney general and of district attorneys, and of their relation to the executive of the state, “In England the king could direct and control the...

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