
    FIRST DISTRICT,
    OCTOBER, 1897.
    Harris County v. John S. Stewart.
    Delivered October 11, 1897.
    Fees of City Attorney in State Cases.
    A city attorney is not entitled to recover fees for representing the State in a criminal prosecution, unless he makes it appear that he was entitled to represent the State because there was no county attorney in the county.
    Appeal from Harris. Tried below before Hon. S. H. Bbasheab.
    The opinion of Supreme Court on certified questions in this case is reported in 91 Texas, 133.
    
      F. L. Schwander and John J. Tod, for appellant.
    
      Goldthwaite & Moody and Lock McDaniel, for appellee.
   WILLIAMS, Associate Justice.

Upon careful examination of the record, we find that it does not sustain the statement, made in the certificate to the Supreme Court, that no complaints or affidavits were filed with the recorder against the parties who were tried and convicted as stated. What we took to be a statement to this effect was in the testimony of the officer giving what appeared on his record, but this we find on closer examination to be only a statement of the contents of his docket. We can not assume that no affidavits were made, and other parts of the record indicate that there were. The opinion of the Supreme Court holds, that, if there was a county attorney in Harris County the city attorney had no right to represent the State, and consequently no right to recover the fees sued for. It results from this ruling, we think, that the general demurrer to the petition should have been sustained. It does not allege that there was no county attorney in Harris County, nor does it allege that there was a resident criminal district attorney. If this last fact would give rise to the inference that there was no county attorney, as to which we express no opinion, it should have been alleged, as the court could not judicially know the residence of the criminal district attorney. As no allegation was made upon this point, the plaintiff failed to show a state of facts which entitled him to appear and represent the State in the prosecution, and consequently, under the decision of the Supreme Court, he failed to show the right to recover the fees sued for.

For the error of the court below in overruling the general demurrer, the judgment is reversed and the cause remanded.

The decision of the Supreme Court disposes of all other questions.

Reversed and remanded.  