1. — Mandamus — County Attorney — Jurisdiction.
Where a county attorney refused to place his official signature to an information based upon the affidavit of an informant setting out certain supposed violations in a misdemeanor case, the Court of Criminal Appeals has no jurisdiction in an appeal from a refusal of the county court to grant mandamus compelling the county attorney to affix his signature to said information and file the same together with the affidavit instituting the prosecution.
2. — Discretion of County Attorney — Not Ministerial Act.
Since there is a large measure of learning and discretion required by prosecuting officers in instituting prosecutions for misdemeanor, and such acts are not purely ministerial the writ of mandamus does not lie to force such officer to file such prosecution.
BROOKS, JUDGE.
The record in this case discloses, in substance, the following facts:
The county attorney had presented to him a valid affidavit and information properly prepared against certain supposed violations of law in the City of Dallas, and the demand was made that said county attorney should put his official signature to the information and file, and prosecute parties who were alleged in the affidavit and information of having violated a misdemeanor law of this State. The county attorney refused to do so. Thereupon, a petition was filed by Joseph Murphy, through his attorneys, in the County Court of Dallas County asking the court to grant a mandamus to compel the county attorney to file said prosecution and to prosecute same. Upon the hearing of said petition the writ of mandamus was refused by the county court, and from said refusal an appeal was prosecuted to this court. This is, in substance, the facts upon which this case rest.
We hold, in the first place, this court has no jurisdiction; furthermore, the writ of mandamus would not lie against the county attorney to institute a prosecution. The function of a writ of mandamus is simply to force a party to perform a purely ministerial act, and the institution of prosecutions by the county attorney are not purely ministerial acts, since there is a large measure of learning and discretion required and to be exercised in instituting and maintaining prosecutions by said officer, and very clearly it would be beyond the province of this court to grant a mandamus for the purpose of securing the object sought by the petition in this case.
Therefore, the writ of mandamus is refused, and the petitioner in this case is ordered to pay all cost in this behalf incurred.
Mandamus refused.