Untitled Texas Attorney General Opinion ( 1971 )

March 31, 1971
Honorable W. 0. Williams Opinion No.~M-823
County Auditor
Grayson County Courthouse Re: Authority of Commissioners'
Sherman, Texas Court to employ and pay an
attorney for a grand jury
to make investigation.
Dear Mr. Williams:
Your recent request for an opinion asks the following
question:
"Can the Grayson County Cotiissioners' Court
legally employ and pay an attorney for a grand
jury, which lawyer’s duties will be to make.an
investigation of the offices of the County, parti-
culary the offices.of County Attorney and Judge of
the County Court at Law, to ascertain why more crim-
inal cases are not being prosecuted in Grayson County?"
It was stated in Stovall v. Shivers, 103 S.W.Zd 363 (Tex
Comm.App. 19371, that mommissioners' Court is
to transact the business, protect the interests, and promote
the welfare of the county as a whole".
These are broad and sweeping responsibilities and commen-
surate powers to carry out such responsibilities must be implied
from the statutes.
The Commissioners' Court may employ an attorney to assist
in the prosecution of claims and suits and may pay for these
services out of county funds. 15 Tex.Jur.Zd 386, Counties Sec.
169; Galveston Co. v. Gresham, 220 S.W. 560 (Tex.Civ.App. 1920,
error ref.); Terre11 v. Greene, 88 Tex. 539, 31 S.W. 631 (1895);
Attorney General's Opinions Nos. V-232 (1947); V-416 (1947);
V-995 (1950); C-256 (1964)~.
In City National Bank of Austin v. Presidio County, 26 S.W.
-3986-
Honorable W. 0. Williams, page 2 (M-823)
2d 775 (Tex.Civ.App. 1894) the Court held that county commis-
sioners had not exceeded their powers in the employment of outside
attorneys, and that they also had power to defray the reasonable
expense thereof out of county funds. The Court said,
,I
. . .The powers of the county commissioners are
defined by law, and it is an elementary principle
that they have implied authority to do what may be
necessary in the exercise of the duties or powers
conferred on them. . . ,I' (at p. 776)
It should be understood that in order for the commis-
sioners ' court to so employ an attorney, the matters involved
must be those which the grand jury is lawfully authorized to
investigate and in which the county has a lawful interest.
This office cannot determine fact questions and we must
assume, for the purposes of this opinion, that the Commis-
sioners' Court of Grayson County has a legitimate purpose for
the employment of the attorney mentioned and that the grand
jury is investigating possible violations of the laws of this
state.
A grand jury in Texas, under Article 20.09, Texas Code of
Criminal Procedure (Vernon 19651, is empowered as follows:
"The grand jury shall inquire into all offenses
liable to indictment of which any member may have
knowledge, or of which they shall be informed by
the attorney representing the State, or any other
credible person."
It has been held that a grand jury is only empowered to
inquire into violations of criminal laws. Alt v. State, 83
Tex. Crim. 337, 203 S.W. 53 (1918).
From the nature of the duties of the grand jury, such as
summoning witnesses to testify and issuing attachments for wit-
nesses, it seems clear that said grand jury has the implied
power to utilize the services of an attorney. Such an attorney
as is contemplated by your request would certainly be a "credible
person" to give the grand jury information as stated in Article
20.09, Code of Criminal Procedure. Under Article 20.03 of this
-3987-
Honorable W. 0. Williams, page 3 (M-823)
Code the presence of this person before the grand jury is pro-
hibited
I,
. . .when they are discussing the propriety
of finding an indictment or voting upon the same.':
In answer to your question, the Grayson County Commissioners'
Court may legally employ an attorney for a grand jury and pay
him from county funds, under the foregoing conditions.
SUMMARY
The Commissioners’ Court of Grayson County may
legally employ an attorney for a grand jury
and pay him from county funds so long as the
matters involved are such as the grand jury
is authorized to investigate and in which
the county has a lawful interest.
Very truly yours,
CRAWFORD C. MARTIN
Attorney General of Texas
First Assistant
Prepared by Glenn R. Brown
Assistant Attorney General
APPROVED:
OPINION COMMITTEE
Xerna Taylor, Chairman
W. E. Allen, Co-Chairman
Fisher Tyler
John Banks
Max Hamilton
Charles Parrett
-3988-
Honorable W. 0. Williams, page 4 (M-823)
MElADEF. GRIFFIN
Staff Legal Assistant
ALFRED WALXER
Executive Assistant
-3989-