Untitled Texas Attorney General Opinion ( 1970 )

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THE ATMBWNEY GENERAL
OF TEXAS
AUYTIN. -rRxAe 18711
December 10, 1970
Hon. Betty Dohoney Opinion No. M- 744
County Attorney
Hill County Re: Whether the Camniaaionera’
P. 0:Box 534 Court of a county has the
Hillaboro, Texas 76645 authority to prohibit the
District and County Attorney
from using office apace pro-
vided them in the courthouse
Dear Mrs. Dohonegr in the private practice of law.
Your recent letter requests an opinion from this office
concerning whether the Conmissioners Court may prohibit County or
District Attorneys i’ra ualng public facilities for private law
practide, .auch as oi’fice apace in. the courthouse as provided them
by the C~iaalonera Court for the discharge of their offlclal duties.
Art+le V, Section 18 of the Texas Constitution, provides:
II ;
. . . The County Commissioners so chosen
with the County Judge,. as presiding officer, shall
c-pose the.County Cbrmaiaaionera Court, which shall
exercise such pouera and jurisdiction over all county
bu81nea8, as is conferred py this Constitution and
the laws of th$ State, or as may be hereaiter prea-
.cribed. . . .
Article 2351, Subdivision 7, Ifernon’a Civil Statutes, makes
it the duty of the Commissioners Court to “provide and keep in repair
court houses, jails and all other necessary ~public buildings.”
Article 1603, Vernon’s &vii Statutes, enacted in 1879, pro-
vides as tollowar
“The county cownlaaionera court of eaoh
county, as soon as practicable after the eatabllah-
ment of a, county seat, or after its removal fran
one place to another, shall provide a court house
and jail for’%he county, and offices for county
officers at such county seat and keep the same In
good repair. ” , .
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Mrs. Betty Dohoney, page 2 (M-744)
In construing these conatlQitiona1 and statutory pro-
vlalona quoted above, the Court In Dodaon v. Marshall, 118 S.W.W
621 (Tex.Clv.App. 1938, error diem.), stated the following:
we think It clear that the conunls-
I,
sloners -1. court
* is charged with the duty of pro-
viding a courthouse and has at least implied au-
thority to replate the use thereof within reasonable
bounds. . . .
Article 3899b, Vernon’s Civil Statutes, first enacted in
1929, la a special statute and the latest atatute concerning the
duty and authority of the Commlaalonera Court to furnish office
apace and other facllltles to county and District Attorneys. As
such, it would control over the earlier general statute, Article
1603, to the extent of any conflict. In Section 1, it is provided
that “suitable offices shall be provided” for certain enumerated
officers, none of which include the County or District Attorneys.
Section 2 QrovideS as follows:
“Suitable offices and stationery and blanks
necessary in the performance of their duties ma
ln~the,dlacretlon of the Commissioners Court -#
a so
be furnished to resident District Judges, realdent
blatrict and County-.Attorneya, County Superintendents
and County Surveyors, and may be paid for on order of
the Commlaalonera Court out of the County Treasury.
(F3nphaala SUQQliSd . )
This office Inter rated the above statute In Attorney Qen-
eral’a Opinion O-2384 (194Op, add reseed to the then County Attorney
of Martin County as follows:
“Under Section 2 of Article ,3899b, as amended,
the Commlaalonera Court is not required to furnish
suitable offices, furniture, stationery and blanks
necessary In the performance of the duties of the
County Attorney, but such matters are left entirely
within the discretion of the Commlaalonera Court.”
This office further rendered a almllar opinion to the County Attorney
of Taylor County;. Attorney General Opinion No. o-2963 (1940) and also
rendered a almllar statutory construction as regards the County Sur-
veyor in Opinion No, O-3229 (1941). No court declalona to the con-
trary have been found, and the Legislature has since met many times
in the subsequent thirty-year period without changing the statute in
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Mrs. Betty Dohoney, page 3 (M-744)
this regard. Under these circumstances, the Attorney General’s
construction will usually Drevail and the Lenlslature Is oreaumed
to have had such construction’ In mind in amending the statute being
construed. Iabell v. Ckalf Union 011 Co., 147 Tex. 6, 209 S.W.2d
{tg48J66 (lgw). Thomas v. Oroebl, 147Tex. 70, 212 S.W.W 625
.
In Tarrant County v. Rattlkln Title Co., 199 S.W.2d 269
~Tex.Clv.Apo.~f, no writ). the Court denied the riRht of the
county to iease-or-rent office apace in the courthouse to an ab-
stract company. It said, in part:
II
. . . To allow the Commlaalonera’ Court to
lease or rent office apace to private enterprise
which was originally erected for the use of public
office, would be placing the Commlsalonera’ Court
and private enterprise In the relation of landlord
and tenant, and in a sense would be applying public
property for crlvate use , which Is against the laws
of, oup State.
In adopting the holding by the Supreme Court of Tennessee, Shelb
Abstract Company, 140 Tenn. 74, 203 S.W. 33d918),
a Court of Civil Appeals quoted therefrom,
“In the absences of statutory authority no
part of the rooms In current use. . . and as a
part of a courthouse may be leased to be used
for private purposes. County buildings
ini their equipment are public .property held by
the County, but in trust for public use. 7
R.C.L. p. 948; /‘Fx rel. v. Hart, 144 Ind.
107, 43 N.E. 7,33 L.R.A. , and note; flown of7
Decatur v. DeKalb County, 130~ Qa. /w27, 4X8, 61-
S.E. 23.”
In accord, see 14 Am.Jur.2d 208, Counties, Sec. 36; 15 Tex.Jur.2d
310, Counties, Sec. 84. Oodley v. Duval County, 361 S.W.ti 629 (Tex.
Clv.App. 1962, no writ!.
In Dodson v. Marshall, aupra, the Court at page 623, held
that the Comm~salonera’ Court riad dlacretlonars Dower to nennlt a
cold drink stand to be operated In an un-used ilcove in the rotunda
of the courthouse for a stipulated rental, yhere the operation of the
stand did not Interfere with the proper use of the courthouse and It
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Mrs. Betty Dohoney, page 4 (M-744)
was “a necessary convenience Incident to the carrying on of the
county’s bualneaa In the courthouse.”
To determine whether the law had been violated. the Court
suggested a test: “Has there In fact been such a diversion of a
material part of the premises as to interfere with the use of the
mlaalonera ’ Court, that . . If It appears that the ccurt la ex-
ercising a reasonable dlacf;etlon in this respect, Its decisions
ought not to be set aside.
The above holding recognized, however, that If the Com-
mlaalonera’ Court should permit the apace to be used in such a
manner as It would “unlawfully Interfere with the right of the
court to regulate the use of the courthouse” or for purposes other
than county purposes, there might be a clear abuse of discretion.
“Eut so long as there la a reasonable exercise of the discretion
vested In the Commlaalonera’ Court In a matter within Its jurls-
diction, that couf;t alone has the right to determine the policy to
be pursued. . . . 118 S.W.2d 624.
In view of all of the foregoing, we have concluded that
while the Commlaslonera’ Court la authorized to furnish office space,
It la not required to, do so, and may, In Its discretion, refuse to
furnish courthouse office apace to County or District Attorneys,
upon a determination as a fact, that there has been by them such a
diversion (through their pursuit of the private practice? of law) of
a material part of the premises as to interfere with the use of
such property as a whole for the public purposes for which It Is
Intended.
This office, however, cannot determine questions of fact;
and since such a determination Involves the exercise of dlacretlon
by the Commlaalonera’ Court and the reaolutlon of a fact question,
we are without authority to advise whether or when such Office space
la being so used.
We also observe in this connection that District and County
Attorneys are not prohibited by law from engaging in private practice,
and the Commlaaionera’ Court la without authority to prohibit such
practice, ‘i ~
SUMMARY
The Commlaalonera’ Court Is authorized but
not required to furnish office apace In the
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Mrs. Batty Dohoney, page 5 (M-744)
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Courthouse and equipment to County and District
Attorneys and may cease ~rnlahlng the same, in
their discretion, which msy include their de-
termination as a fact that there has been such
a diversion (through their pursuit of the private
practice of law) of a material part of the premises
as to Interfere with the use of such property as a
whole for the public purposes for which that property
la Intended.
The Commlaalonera' Court, however, may not pro-
hibit Mstrlct and County Attorneys from engaging in
the private practice of law
Prepared by Austin C. Bray
Aaalatant Attorney General
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APPROVED:~
OPINION COMMITTEE '
Kerns Taylor, Chairman
W. E. Allen, Co-Chalrpran -
J. C. Davis ,,.
Gordon Case
Roger Tyler
Houghton Brownlee
MEADEF. GRIFFIN
Staff Legal Aaalatant
ALFREDWALKER
Executive Aaalatant
NOLh WHITE
First Aaalatai~.
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