Untitled Texas Attorney General Opinion ( 1939 )

OFFICE OF THE ATTORNEY GENERAL OF TEXAS
AUSTIN
January 10, 1939
Honorable E. E. Coons
County Attorney
Stratford, Texas
Deer Kr. Coons: ',
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Opinion RI. o-45 v--
De! Feesof CCmuty'.,Attornep
Thle department acknowledges receipt of your
letter of January 4, 1939, the ztzeterial part of whioh\is
quoted as follows: '.. '_
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WShemen County, by'authority of its oorcmis-
sionersl Ccurt, intervenedtin a.sui.t in the Dis-
trict Court of the United States at Abilene, Texas,
in which the City of German was.defendant, and
wherein it was soughtby certsia bondholders to
obtain a judgment against the said City of Corman
for principal and interest or its defaulted bonds.
In its order authorizing such intervention, the
Ccmissioners' :Court instructed the County Attorney
to request pemission to.intervene, and authorized
the employm.enb,oC'a fin0 of attorneys in Abilene,
Texas; .to., assist~,ixi$.he suit.lf
4
.i' Jour‘ietter also states that there was an agreed
judgmehtentered by the Federal Court, under which Sherman
County is to reaeivs certain refunding bonds and also is to
partlbipate pro i‘ata in the sinking funds appertaining there-
to end Which had accumulated to the extent of ?lZSC.
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You* question, upon whioh your request for an opin-
ion is predi~cs-ted, is I
"Is a county attorney entitled to the legal
commissions on the money part of this judgment,
namely, ten per cent on the first thousand dollars
and five yer cent on the recalnder, ?260.00q?
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“0 COYY”“,C.I,“N I* 10 .I c”I*,I,,~” . . I “PL.P.UFVT.1~ . . . . . ..n* I,.,, .a. I..“-,.-- -.I -..- .----..-.. --.,--.,
I’r. E. I?. Coons, Zanuery 10, 1939, Pege 2
The writer reels that to intelligently answer
this question, it should be reststed in c,rdor to be in keep-
ing with the facts of your case as sbove outlined. Therefore,
we shall endeavor to answer the following question which in-
cludes the essential part of ycur question:
Is a county attorney entitled to the legal com-
missions authorized under Artiale 335 in civil actions where
money is recovered end oollected by him pursuant to instruc-
tions from the Commissioners1 Court of suoh county, and where
such body authorized the employment of special counsel to
assist said county in proseoutdon of the suit?
This subjeat has been treated before in opinions by
this department, namely, Opinion 2325, handed down on .1pril
6, 1921, end printed on paoe 404 of Reports end Cplnionn of
the Attorney General for 1920-1922, end Opinicn 2673,, rendered
T’arch 19, 1927, and printed on par7e 210 of Reports end Cpinions
cf the Attorney General for 1926-1928. Such opinions, however,
were not based upon facts directly in point with your case,
but sufficiently similar to enabled us to quote one conclusion
which was reached in both of these opinions, such conclusion
being-
Wmhe county attorney is not entitled to com-
mission or fee under Article 375, Revised Civil
Ptetutes, 1925, on money collected by suit or
otherwise for the oounty, exoept where it is the
duty of the oounty attorney to take action in
behalf or the county,”
The Aats ot 1876, Se&ion 1, Page 283, Genera.1 Laws,
Volume.8, pages 922 and 1119, define the duties of county at-
torneys, and the rights and duties therein ccnferred are of
such nature as to reouire him to Institute certain suits upon
his own volition. This also lilrited the county attorney to
actions in county courts end inferior ccurts of his county,
except in the absence of the district attorney when he shall
represent the State in all cases in the district colirt. UiS
Compensation for all ‘such services was prescribed therein.
Rowever, the oountp attorney is authorized by tke Constitution
to represent the State in all ceses in the dlstrlct and inferior
courts in his county, and under the decision of the ?upaeme
Court in the case of Feude vs. Terrell, 200 Z. Y. 375, the
legislature can not take awsy from the county attorney, In a
county where there is no district attorney, the rl;tht to rep-
resent the State In all cases in the trial courts. The Consti-
tution doesnotrequme the dutles of the county attorney In
representing‘the county.
Vr. E. E. Coons, January 10, 1939, Page 3
In the case of ???radg vs. prooks, a9 9. W. 1052, the
Supreme Court stated that “the prinoipal purpose of the Consti-
tution in oreatlng the offices of district at:.orney and county
attorney was to make as the main funotfons of these officers,
the proseoution of criminal cases.“’ Rowever, the legislature
has from time to time conferred additional duties upon these
officers, but no authority is found In the statutes that makes
the county attorney the representative of the county in siiits.
As further evidence that the duties and rights of the county
attorney prescribed by the Constitution were restricted, we re-
fer to subsequent Acts of the Legislature conferring additional
duties an these offloers, such as Article 0716 of the Revised
Civil Statutes, 1925, which provides that the county attorney
shall represent the county in certain s’ults for demages. Clear-
ly, it is not the intention of the Legislature to make it the
right of the county attorney to represent the county in -all
actions.
Article 334 of the Revised Civil Statutes, 1925, pro-
vides that distriot and county attorneys shall advise and give
opinions to the various ocunty and Freclnct officers, but this
does not mean that the Commissioners1 Court la required to employ
the ccunty attorney in all civil, suits, nor does it mean that
the county attorney has the ri.yht to represeilt the county in such
suits.
In the case of Loosoon vs. Rarris County, 38 Tex. 511,
the Supreme Court held that the Commissioners’ Court of a county
had the exclusive right to determine whether a suit should be
brought in the name and for the benefit of a oounty, except in
a case where a concurrent or exclusive right is conferred on
some other official or tribunal by the Legislature to exercise
in some speoified case a like discretion. The ccurt uses this
further language:
“The Ccmmissioners~ Court, presided over by the
county judge, is virtually a council vested with power
to manage and direct all of such material and flnan-
cial Interests r.f the county as the laws of the state
have confided to its jurisdiction. The manngement of
the financial affairs of the county have alf:ays here-
tofore been vested in tribunals which have existed at
different times under various names and designations,
such as county court, commissioners1 court, etc.; they
have, however, all been clothed with similar pov:ers,
and like duties have been imposed uron them. The corn-
missioners’ court undoubtedly has the right to cause
suits to Se Instituted in the name of and for the
benefit of the county, end except where a concurrent
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Coons, yanuary 10, 1939, Face 4
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right to dc the Sal-e thin3, or where an exclusive ri,vht
in a speoified onse or cases is conferred upon some
other tribunal or some other officer of the Covern-
rent, the cormfs?ioners~ court must be deemed to be
the quasi executive head of the county, vested ?lith
exclusive poT>'er to determine when a sllit shall bo In-
stitute! In the name of and for the benefit of the
county.
The Co``lssionera' Ccurt has authority to employ counsel
to the exclusion of the oounty attornsy to institute suits In be-
half of the county, escept actions aeainst office holders as pro-
vided by Article 339, Fevised Civil Statutes, 1925. This was held
heretofore by this departrent in Opinion 2673, above mentioned.
This opinion also held that the.Commissioners* Court hes the au-
thority to employ counsel to the exclusicn of the county attorney
to bring suit against the ?ankd.n.q Commission for the recovery of
s?ounty funds under the Cuaranty Fank Fund Law on account of the
bank (county depository) failure, and the county attorney Is not
entitled to any colrmission on collections made as a result of
said suit, except as may be Provided by contract between the
county attorney and the Ccrmissionerst Kurt.
It is the writer's ccnclusion thet you are not entitled
to the commissions under .;rticle 335 as a rrsult of the money
recovered In the s:it wherein Therman Ccunfy intervened, as out-
lined in your letter. The matter of your prcsecuting the inter-
eats of the co!.nty, pursuan t to an instruction or authorization
by the Commissioners' Cn_urt, was not such as ten be construed
to have been a r1B;b.t or duty prescribed or conferred by the Con-
stitution or Legislature upon your office. Therefore, if you
are entitled to any compensation, it must be by reason of con-
tract between yourself and the Ccmmissioners' Court, and only
such compensation 6s may have been fixed in that ccntrast.
. Yours respectfully
A'iTCTTEY EY?ZX~L CP 'l?:xAs
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