Untitled Texas Attorney General Opinion ( 1951 )

November 20, 1951
Hon. A. W. Walker ODinion No. v-1350.
County Attorney
Dickens County Re: Several questions regarding
Dickens, Texas the proper authoritiesto
maintain en action to re-
cover funds q isapproprieted
by a coordinatorof 8 coun-
ty veteranat vocetional
Dear Sir: school.
Your letter states in substance as follows:
The board of county school trustee,g ba-
lieves,that a former coordinatorof the coun-
ty~vocatlonalschools (veterans' schools) has
misappropriatedsome of the school money.
The board has voted to sue the coordinator
and his bondsman for the sum of misappropri-
ated funds. Pursuant thereto, a member of
that board requested you to represent the
board In such civil suit in your capacltg as
county attorney.
You express the opinion that you, in
your capacity as county attorney, are not re-
quired to represent the county school board
in this matter. You submit the following
questions for an opinion of this office:
1. Is the county attorney required to
represent the Board of County School Trustees
of his county In a suit to recover funds al-
leged to have been mlsap ropriated by a form-
er coordinator (employeeP of veterans' voca-
tional schools of such county which are au-
thorized and operated under Article 2683Q,
V.C.S.?
2. Is the Attorney General of Texas re-
quired to represent a county school board in
this type of suit?
Hon. A. W. Walker, page 2 (v-1350)
3. Does the Board of County School
Trustees, itself, have the authority to
maintain the suit indicated?
Article 2683b, V.C.S., provides as follows:
"Sec. 2. The county school trustees
of every county in the State of Texas are
hereby authorized to maintain, operate and
administer special schools in their respec-
tive counties and establish classes therein
for the education and vocational training
of veterans of World War II and also for
any other educational benefits which may be
provided by law for such veterans, all such
schools and classes to be conducted under
the jurisdiction and supervision of the re-
spective county school boards in their re-
spective counties. . . .'
"Sec. 3. The State Board for Vocation-
al Education is hereby authorized to allo-
cate and pay to the respective county boards
of trustees of the respective counties in
this state, snd such county trustees are
hereby authorized te receive, such money ss
well as any private donations male for t'he
same purpose and shall stand cl``i~;ed with
the power and duty to maintain, oper:?teand
administer the same for tilepurposes above
stated.
"Sec. 4. The county school trustees
are authorized to employ instructors, as
they may deem necessary, and to do and per-
form all things which they deem proper for
the successfu.1operation of such schools,
and pay for all such by warrants drswn on
funds received by them for the purpose."
Attorney General's Opinion V-759 (1943) points
out that the costs for the operation of the "special
schools" authorized by that law sre paid by the State
Board of Vocational Education to county boards of trus-
tees operating such schools out of Federal funds re-
ceived by the State Board in accordance with a State
plan and contract adopted by the Board and the Veterans
Administration. The Federal funds so received and placed
Hon. A. W. Walker, Page 3 (V-1350).
in the State Treasury have been appropriated 'tothe
specific purpose authorized by the Government. The
State Board of Vocational Education, acting under Sec-
tion 3 of Article 2683b, allocates and authorize8 to
be paid to each respective county board of trustees
budgeted amounts needed for thFs program. A State
warrant in lump sum for approved amounts is forwarded
to participating county boards, which J.nturn draw
warrants on these funds received and deposited by them
for this purpose. Sec. 4, Art. 268313,V.C.S.
ArtFcle 2683 provides in part as follows:
"The county school trustees of each
county shall constitute a body corporate,
by the name of the county school trustee8
Of County, State of Texas,
and in that name mas acquire land hold real
and personal property, sue and be,sued, and
may receive bequests and doII.ati.On8
or other
moneys or funds coming legally into their
hands, and may perform ot'heracts for the
promotion of education in the county. . . ."
The genera1 authority oT a c&ntg attorney,
illsofaraa civil actions are concerned, is derived from
the Constitution and statutes of this State. Section
21 of Article V of the Constitution provides as follows:
I, . . The county nttortieys sixoIl Ine-
present the State in all cases in the Dis-
trict and inferior courts in their respec-
tive counties;. . .'
The principal purpose of this constitutional
provision creating the office of county attorney was
to make its main function the Drosecution of criminal
cases. Bredy v. Brooks, 99 Tex. 366, 89 S.W. 1052
(1905); 15 Tex. Jur. 395, Dlstrlct and Prosecuting
Attorneys, Sec. 11. This provision has been construed
as not prescribing any duties for county attorneys other
than such 88 are required to be performed for the State.
Spencer v. Galveston County, 56 Tex. 384 (1882). Nor
does it give to the county attorney authority to Lnsti-
tute a proceeding unless he is given that power by
stat;u",e.Wexler v. State, 241 S.IJ.231 (Tex. Civ. App.
1922); Chicago, R.I. & G. Ry. Co. v. State, 264 S.W.
127 (Tex. Civ. App. 1924).
Hon. A. W. Walker, page 4 (V-1350)
But the Legislature has, from time to time,
conferred additional duties upon the county attorneys.
The statutes governing county attorneys generally and
providing for their duties are Articles 329-341, V.C.S.
In your letter you refer to Articles 334 and 339, V.C.S.
Article 334 provides that district and county
attorneys shall advise and give opinions to the various
county and precinct officers. But this statute does
not require a county attorney to file a civil suit for
a county school board, nor does it mean that the county
attorney has the right to represent the county or its
county school board in all such suits. Att'y Gen. Op.
a-3656 (1941).
Article 339 provides that when it comes to the
knowledge of any district or county attorney that any
officer in his district or county entrusted with the
collection or safekeeping of any public fund8 is neg-
lecting or abusing the trust confided in him or is fail-
ing to discharge his duties under the law, he shall in-
stitute such proceeding8 as are necessary to compel the
performance of such duties and to preserve and protect
the public interests. Eut it is clear, in the light of
the provisions of Articles 2683 and 268313,that a co-
ordinator, an employee of w county veterans' school, is
not a county officer entrusted with the collection or
safekeeping of any public funds of such s&ecisl schools
of the county, within the meaning of Article 339. See
Looscan v. Harris Count& 58 Tex. 511 (l%%); Ee:.:ar
County v. Davis, 223 S. 1. 558 (Tex. Civ. P3$p.m,
error ref.mt'y Gen. Ops. O&r,34 (1945) 3113 v-759,
supra.
While there are other statutes which authorize
suit by the county attorney in particular cases, as for
example, Article 6716, V.CS. (damages to public roads),
we find no statutory authority or directicn for his rep-
resenting the county school board in civil proceedings
of the nature involved in your fact situation. Accord-
ingly, we agree that you may not properly bring the suit
mentioned on your own initiative as county attorney, nor
does the law require you to institute such suit as coun-
ty attorney at the request of the county school board.
See Att'y Gen. Op. O-225 (1939).
Section 22 of Article IV of the Texas Consti-
tution contains the following provision with reference
to the Attorney General:
.
,Bon.A. W. Walker, Page 5 (v-1350) *
"He shell represent the Stats in 011
suits end pleas in the Supreme Court of the
State in uhioh the State may be 8 party
. . . end perform such other duties ~8 aey
by law.”
be 7?equii-0a
We have been unable to find any provision in
the~lews applicableto the office of Attorney General
which authorizes or requires that officer to represent
the 254 county school boards of this State Ln civil
suits of the nature involved in the submltted fact sit-
uation.
In vFew of the provlslon of Article 2683,
hereinabovequoted, which constitutesthe county school
board e body corporate end vests it .withthe power to
sue or be sued in that capacity, it is our opinion thet
the county school board Ftaelf would have authority to
meintaln the suit lndlceted and to emolw an attorney
to represent the board. See Arrin@oh v: Jones, lql-
S.W. 361 (Tex. Civ. App. 1 17): Steuert v. Newton In-
endent School Dist., 13z S.W.2d 429 (Tex. Clv. App.
9). Loerd v. Como, 137 S.W.2d 880 (Tex. Civ. App.
0,'erromndependent School District No. 1 v.
Common school District No. 1, 55 P.2a 144 (Idaho Sup.
936). ,
Neither a county attorney nor the Attor-
ney General 1s required or authorized by law
to institute a civil suit at the request of a
county school board against a coordinatorof
special veterans' vocational schools of the
county for recovery of school funds allocated
' to and received by the county board under ar-
tlcle 2783b, V.C.S., and subsequentlymisap-
propriated by the coordinator. Under Article
2783, V.C.S., the county school board itself
may mefntaLn such a suit against the coordi-
nator and his bondsman, and may employ an at-
torney in Its behalf.
APPROVRD: Yours very truly,
'J.C. Davis, Jr. PRICE DANIEL
County Affair8 Dlvlslon Attorney General
Jesse 9. Luton, Jr.
Reviewing Assistant By&-= fcb-
Chester E. Ollison
gw%:i*t:"ws : Assistant
CRO:wh