Untitled Texas Attorney General Opinion ( 1962 )

EA ORNEY GENERAL
OF-XAS
March 23, 1962
Honorable W. G. Wallev. Jr. Opinion No. WW-1284
Acting Criminal Dist&t Attorney -
Courthouse Re: Whether the
Beaumont, Texas Commissioner's
Court of Jefferson
County has the author-
ity to retain legal
counsel to defend
certain members of a
Grand Jury in cases
brought against them
Dear Mr. Walley: under the stated facts.
Your letter requesting an opinion reads in part
as follows:
"On or about the 1st day of October, 1961,
the Criminal District Court of Jefferson
County and the 136th Judicial District Court
each empaneled a Grand Jury for Jefferson
County, Texas. These Grand Juries served
until the 5th day of December, 1961, when at
such time the Judges of the above-mentioned
Courts discharged each Grand Jury subject to
recall by written orders duly filed with the
District Clerk of Jefferson County in accord-
ance with Article 372, C.C.P. Each Grand
Jury was notified of such action in open
court and was thereby formally discharged by
the Court subject to recall. The Criminal
District Court Grand Jury at such session,
made it known to the Judge of said Court
that they had two indictments and a report
which they desired to return before being
discharged. The Judge of the Criminal District
Court then and there refused to accept said
report and indictments and discharged the
Grand Jury subject to recall. Eleven members
of this Grand Jury then proceeded back to
the Grand Jury room and subsequently released
a statement to the press.
"A short time after the release of this
statement, eleven members of this Grand Jury
were sued for libel and indicted by the 136th
Hon. W. G. Walley, Jr. page 2 (w-1284)
District Court Grand Jury for divulging
grand jury proceedings predicated upon
this released statement.
"The Criminal District Court Grand
Jury has now requested the Commissioners'
Court of Jefferson County to employ
legal counsel in defense of the above
suit and indictments.
"We now request an opinion of your
office on whether or not the Commissioners'
Court has authority to retain legal counsel
to defend members of a Grand Jury in suits
brought against them under the above alleged
facts."
A Commissioners' Court is a court of limited juria-
diction and has only such powers as are conferred upon
it by the Constitution and laws of this State by express
terms or necessary implication. Hill v. Sterrett, 252
S.W.2d 766 (Civ. App. 1952, error ref. n.r.e.); Canales
Lau lin 147 Tex. 169, 214 S.W.2d 451 (1948)iess
-p-Ah
ountv v. State, 127 Tex. 343, 92 S.W.2d 1011 (1936); Roper
v. Hall, 280 S.W. 289 (Civ. App. 1925).
It has been repeatedly held by this office that
the Commissioners' Court has the power and authority to
employ attorneys in the prosecution of its claims and
suits and pay for such services out of the General Fund
of the county where the county, as a whole, is interested
in and affected by such proceedings. Attorney General's
Opinions V-995 (1950); V-232 (1947r; O-4955 (1942); and
WW-662. .
In Attorney General's Opinion V-232 (1947), this
office held that a County Commissioner was not entitled
to reimbursement from the county for his attorney's fees
in defending a suit against him and his bonding Company
for damages arising from the Commissioner's negligence ,in
failing to repair a county bridge. At first the county
was not named as a party to such suit. Later the county
was named as defendant and the Commissioners' Court employed
the County Attorney in defending the suit against the county.
The Commissioners' Court was held to be authorized to employ
and pay the attorney for his services in defending the county
after the county was made a party to the suit, the reason
being that the county as a whole then became interested in
and affected by the suit.
. .
Hon. W. G. Walley, Jr. page 3 (WW-1284)
In a well reasoned Attorney General's Opinion
O-4955, citing the City National,Bank of Austin v.
Presidio, case, 26 S.W. 775 (lS94) it was held that
the Commissioners' Court could h&e an attorney to
represent the Commissioners' Court as proceedings
were instituted which affected their official acts
and the county, as a whole, was interested in and
affected by such proceedings. An individual em-
ployee of the county was not entitled to counsel
as he was sued in his individual capacity, and such
suit didn't interfere with his official acts.
In the present case neither Jefferson County
nor the Commissioners' Court of that county wereever
named as defendants. The design and effect of the
suit against the Grand Jury members is not to obstruct
or control the performance of their official acts,
but to recover damages for alleged acts contrary to
the legal performance of their duties. In view of
the foregoing, it cannot be said that the county as a
whole was interested or affected by such a suit. Hence,
in our opinion the Commissioners' Court is not .author-
ised to appoint an attorney for members of the Grand
Jury in defending such suit.
SUMMARY
The Commissioners' Court of Jefferson
County is not authoriaed to hire an attorney
to defend the Grand Jury members since the
county as a whole is not interested or
affected.
Yours very truly,
WILL WILSON
Attorney General of Texas
-d Irwin R. Salmanson
1RS:bjh Assistant Attorney General
APPROVED:
OPIXIOH COMMITTEE REVIEWED FOR THE ATTORNEY GENERAL
W. V. Geppert, Chairman
John.Reeves BY: Houghton Brownlee, Jr.
ArthurSand1i.n
Henry Braswell
Virgil Pullism