Untitled Texas Attorney General Opinion ( 1990 )

December 31, 1990
Honorable Mike Driscoll Opinion No. JW-1281
Harris County Attorney
1001 Preston, Suite 634 Re: Whether a commissioners
Houston, Texas 77002 court may appoint a licensed
attorney to advise the sheriff
or an individual commissioner
(RQ-1774)
Dear Mr. Driscoll:
You have requested our opinion as to whether the
commissioners court of Harris County is authorized to
create a position to be filled by a licensed
attorney to be appointed or employed.by an
individual member of the commissioners court
or the sheriff for the purpose of giving
legal advice to the individual member, the
commissioners court and/or the sheriff about
their respective official powers and duties.
You suggest in the brief submitted with your request that
the creation by the Harris County Commissioners Court of
such attorney positions constitutes an unlawful usurpation
of the powers and duties of the Harris County Attorney.
Section 151.001 of the Local Government Code provides
that district, county, or precinct officers must apply to
the commissioners court for authority to appoint deputies,
assistants, or clerks. In counties like Harris County, with
a population over 190,000, such officials must also apply
for authority to appoint "any other kinds of employees."
Section 151.002 provides that the commissioners court shall
make such authorizations by order. However, where a county
official is vested by the constitution or the legislature
with exclusive authority to perform a duty, the commission-
ers may not employ, or authorize the employment of, another
person to perform such duties. See, e.a. Cameron County v.
pivera, 761 S.W.2d 517 (Tex. App. - Corpu; Christi 1988, no
writ) (commissioners court's creation of position of secre-
tary to court with duty of transcribing court minutes
improperly interfered with the statutory duty of the county
clerk to "record" the court's proceedings).
P. 6876
Honorable Mike Driscoll - Page 2 (JM-1281)
Article V, section 21, of the Texas Constitution,
provides in pertinent part:
The County Attorneys shall represent the
State in all cases in the District and
inferior courts in their respective counties:
but if any county shall be included in a
district in which there shall be a District
Attorney, the respective duties of District
Attorneys and County Attorneys shall in such
counties be regulated by the Legislature.
The office of county attorney for Harris County was
created in 1953, when the legislature abolished the office
of Harris County Criminal District Attorney. Acts 1953, 53d
Leg., chs. 315, 316, at 784, 786. The provisions of the
1953 enactment detailing the powers and duties of the Harris
County Attorney are now codified as section 45.201 of the
Government Code, which provides in relevant part:
It is the primary duty of the county
attorney in Harris County or his assistants
to represent the state, Harris County, and
the officials of Harris County in all civil
matters pending before the courts of Harris
County and any other courts in which the
state, the county, or the officials of the
county have matters pending.
Section 81.023 of the Local Government Code, by con-
trast, applies only to certain counties. It provides:
(a) The commissioners court of a county
with a population of more than 500,000 may
employ an attorney as special counsel.
(b) The special counsel may be employed
to: .
(1) represent the county in any suit
brought by or against the county:
(2) prepare necessary documents and
otherwise assist the court, the county
engineer, and other county employees in
the acquisition of rights-of-way for the
county and for state highways: or
(3) represent the county in condem-
nation proceedings for the acquisition of
P. 6877
Honorable Mike Driscoll - Page 3 (JW-1281)
rights-of-way for highways and other
purposes for which the county has the
right of eminent domain.
(c) The county attorney shall select the
special counsel. If the county does not have
a county attorney, the district attorney or
criminal district attorney shall select the
special counsel. The selecting officer shall
determine the terms and duration of employ-
ment of the special counsel, subject to the
court's approval.
Finally, section 41.007 of the Government Code, applicable
to all county attorneys, provides:
A district or county attorney, pn reouest,
shall give to a county or precinct official of
his district or county a written opinion or
written advice relating to the official duties
of that official. (Emphasis added.)
In Driscoll v. Harris Countv Comm'rs Court, 688 S.W.Zd
569 ITex. ADD. -. Houston rl4th Dist.1 1984, writ ref'd
n.r.i.), thycourt considered the interaction of the provi-
sions of article 2372p, V.T.C.S., now codified as Local
Government Code section 81.023, with those of article
.6795b-1, authorizing certain counties to construct, operate,
and maintain inter alia a Hturnpike, highway, or any combi-
nation of such facilities." Section 5 of the latter article
orovided for the creation of a board to manaae such a
project and authorized the board
to design the project, to acquire necessary
lands or rights-of-way or other property for
the project by purchase, condemnation, or
otherwise . . . and to employ consultants,
attorneys, engineers, financial advisors,
agents and other employees or contractors in
connection with the development, construc-
tion, operation and management of the
project.
Id. at 575. The majority opinion gave the following summary
of the events which gave rise to the litigation:
[T]he commissioners court designated the
members of the commissioners court as the
operating board of the authority and further
authorized the preparation and legal
p. 6878
Honorable Mike Driscoll - Page 4 (JR-1281)
documentation for the issuance of fifty
million dollars in toll road revenue and
unlimited tax bonds. In connection with the
issuance of these bonds the operating board
engaged the law firm of Vinson L Elkins to
serve as counsel. On November 8, 1983, the
operating board entered an order engaging the
law firm of Fulbright C Jaworski as special
counsel for the Toll Road Authority. The
Harris County Attorney objected to the
employment of special counsel, and informed
the commissioners court that his office was
capable of doing all the work in connection
with the acquisition of the rights-of-way,
and other related matters. He further
informed commissioners court that the employ-
ment of private attorneys without the input
of his office was contrary to law Andy should
they persist, legal action would result.
They persisted, and consequently the county
attorney, in his official capacity, filed
this lawsuit against commissioners court, all
the members thereof, the county auditor, the
county treasurer, Vinson & Elkins and
Fulbright & Jaworski.
& at 577.
The trial court denied the Harris County Attorney, the
plaintiff in that case, all relief sought. On appeal, the
court of appeals, in a per curia opinion, reversed and
remanded the case. On motion for rehearing, the per curiam
opinion was reissued by the majority, with two other justic-
es concurring in the result and three dissenting. The
majority and concurring opinions held that appointment of
attorneys pursuant to article 6795b-1 for work on the
turnpike project must be made in compliance with the re-
quirement of article 2372~. Article 2372~ stated that
special counsel must be named by the county attorney and
that such employment must be on terms "deemed proper" by the
county attorney, as approved by the commissioners court.
Roth statutes speak to the same subject,
namely, the employment of counsel to repre-
sent the county in the acquisition, by
condemnation or otherwise, of rights-of-way
for the construction of county roads.
Artidle 2372p, however, is a specific statute
insofar as it limits the outright authority
to hire such counsel (in counties having a
p. 6879
Honorable Mike Driscoll - Page 5 (JM-1281)
population in excess of 500,000) if such
county is represented by a county attorney,
district attorney or criminal district
attorney. . . . We must give effect to this
plain wording of the statute and, unless
there is a conflict between the two statutes,
give effect to both. The trial court did not
expressly find a conflict: neither appellant
nor appellees contend there is a conflict,
and we find there is no conflict.
& at 581.
In priscoll, the firms involved were employed to assist
the turnpike authority in its issuance of bonds and to act
as *'special counsel" in the acquisition of rights-of-way and
other matters. It has been suggested that a distinction may
be made between an attorney's duty to renrese t a client and
his duty to advise a client, and that only nthe former is
prohibited by the terms of section 81.023 of the Local
Government Code. That view was rejected by the court in
DriscoU :
It is a simple matter to harmonize the provi-
sions of the two acts, at least as they apply
to Harris County: the commissioners court is
authorized to employ attorneys, but in order
to do so, it must comply with the restrictions
of Article 2372~ [now section 81.0231.
& at 582.
Accordingly, the court of appeals specifically rejected
the trial court's conclusion that emnl vm t of legal
counsel by the Harris County Toll Road AutEorzEy "does not
constitute an usurpation of the powers and public duties of
the office of the County Attorney of Harris County, Texas in
contravention of the Constitution and laws of the State of
Texas." Id. The court did not recognize any distinction
between representation and advice, and, in our opinion, no
reasonable distinction can be made.
We believe that the thrust of article V, section 21, of
the Texas Constitution, which requires a county attorney to
"represent the State in all cases," section 45.201 of the
Government Code, which declares it to be the "primary duty"
of the Harris County attorney "to represent the State," and
section 41.007 of the Government Code, which requires a
county attorney, on request, to "give to a county or pre-
cinct official of his district or county a written opinion
P. 6880
Honorable Mike Driscoll - Page 6 (JM-1281)
or written advice," taken together, is to compel the various
officials of Harris County to obtain representation and
advice in all legal matters from the Harris County attorney,
and him alone, absent the exceptions provided by section
81.023 of the Local Government Code. The law in this area
was well developed long before the enactment of section
81.023.
Prior to the enactment of section 81.023, it was held
that a commissioners court could not appoint or employ
private attorneys to perform the regular duties of district
and county attorneys. If the duties of these officers were
statutorily imposed, the commissioners court was restricted
to the employment of attorneys Lo assist the regularly
constituted officers of the county. errell . Green
S.W. 631 (Tex. 1895); w v. Seaale:, 250 S‘lW. 413 ';Te:f
1923); se alsQ Attorney General Opinions C-256
(1964),V-1:77 (1951), O-7474 (1946). Section 81.023 does
not alter prior law in this regard, but rather adopts and
confirms these principles.
In Jones v. Velt.Jk@ 171 S.W. 287 (Tex. Civ. App. - San
Antonio 1914, writ ref:d), the court of civil appeals
construed the county attorneyjs statutory duty to advise
county officials to be all inclusive. The court concluded
that there could be no county matter which would not fall
within the contemplation or definition of such duty and
stated at page 290:
The facts clearly indicate a determined
purpose upon the part of the commissioners'
court to evade and thwart the provisions of
article 5, 5 .21, of the Constitution and the
statutes of the state. The very services
enumerated in the order as to advice to be
given by the county attorney to the county
judge and commissioners' court as provided for
in article 356a [now Gov*t Code 5 41.007,
imposing a duty to give an opinion or advice
in writing to any county or precinct officer].
It was as much the dutv of the countv attorney
to advise the countv iudae and commissioners'
GGD& in regard to properly preparing and
issuing the road bonds as in regard to any
other matter in which the county was interest-
ed, and it was his dutv to advise them in
aaard to all countv matters. There could be
no countv m tters about which advice was
reouired that was 'not contemvlated or
P. 6881
Honorable Mike Driscoll - Page 7 (JM-1281)
overed bv his offgcial duties as county
gttorne; . . . .I* (Emphasis added).
The Harris County Attorney has both the statutory duty and
authority to advise and represent Harris County and its
departments and officials in all civil legal matters and the
commissioners court has no authority to usurp such powers
and duties and delegate same to another person by contract
or otherwise. See also Cameron Countv, a, (commission-
ers court improperly interfered with the county clerk's
exclusive statutory duty to transcribe the minutes of the
commissioners court by creating the position of Secretary of
Cameron County Commissioners Court and appointing another
person to perform this duty): Attorney General Opinions
JM-1025 (1989); JM-833 (1987).
Furthermore, section 41.007 of the Government Code
expressly provides that the district and county attorney
will advise the county and its officials, including the
members of the commissioners court and the Harris County
Sheriff. The proviso "on reguest," serves only to protect
district and county attorneys from being considered derelict
in their duty to advise if public officials fail or refuse
to request assistance. Just as a court has no duty to pass
upon a petition until some request or other contingency has
occurred, the commissioners court may not suspend a portion
of the duties required by law to be performed by an elected
legal officer by simply refusing to request advice the
commissioners court deems necessary.
In 1973, the Attorney General considered the applica-
tion of these principles and in Attorney General Opinion
LA-24 (1973), he declared as follows:
The Constitution, Article 5, Section 18
speaks to the matter of county and district
attorneys representing the interests of the
State, not the County, in matters before
district and county courts. In the absence of
a statute commanding it, or an agreement
between him and the commissioners court
calling for it, a county or district attorney
has no obligation or right to defend county
interests in court, and the county may employ
private counsel to protect such interests to
the exclusion of such legal officers.
The Legislature may, however, assign such
legal officers additional duties consistent
with their constitutional duties. mere the
P. 6882
Honorable Mike Driscoll - Page 8 (J&1281)
has done so. the c-
court. a suborute bodv. cv
with the discmae of such duties; and unless
the Legislature has specified otherwise, any
private attorneys employed by the county
commissioners in connection therewith may act
only under the direction of the officer.
(Emphasis added.)
Section 81.023 of the Local Government Code, provides
the only vehicle for the employment of special counsel by
the commissioners court under certain limited circumstances
and the provisions therein do not apply to the instant
situation.
It has been consistently held that the commissioners
court is not authorized to interfere with the county attor-
ney's general statutory duty to advise and represent county
and precinct officers. In Terrell, SYBEB, the
supreme court held that the Tarrant County Attorney was
entitled to a writ of mandamus commanding a district judge
to permit him to appear as county attorney in a cause filed
by the county through private counsel against the county
treasurer. The court stated:
There is no dispute as to the right of Ben
M. Terre11 to exercise all of the functions
which, by law, pertain to the office of county
attorney of Tarrant county [sic]. . . . We do
not undertake to say that the county commis-
sioners' court might not, in the exercise of
its authority, direct the institution of such
suit: indeed, we think that such would neces-
sarily arise out of other powers granted to
the court, but that authoritv would not
necessarilv authorize the commissioners court
to diSDlaCS an officer whose dutv in such
matters is orescribed bv status.
. . . .
The fact that the suit had been filed by
other counsel employed by the county, in no
wise relieved the county attorney of his duty
to prosecute this suit, nor did it deprive him
of his privilege to discharge that duty. . . .
While the commissioners' court might employ
counsel to assist the county attorney in the
performance of this duty, it had not the
puthoritv under the law to diSDlaCS him from
p.6883
Honorable Mike Driscoll - Page 9 (Jw-1281)
er the
hw as an officer of that county. (Emphasis
added.)
XL at 632-33.
There is no authority for the commissioners court of
Harris County to create and fund positions with titles such
as "general counsel," "legal counsel,n "staff attorney,"
"legal assistant," or "legal advisor' to be filled by a
licensed attorney for the purpose of advising county offi-
cials in connection with their official duties, and doing so
clearly constitutes an illegal usurpation of the statutory
duties of the county attorney of Harris County. In
Driscoll m, the court disapproved the employment by the
commissi&ers court of outside law firms to do the county
attorney's job. Now the members of the commissioners court
are hiring attorneys for their personal staffs to perform
the identical legal services. The commissioners court has
no greater right or authority to hire staff attorneys to
perform the county attorneyJs duties than it has to hire
outside law firms. Further, in the absence of any valid
authority for the commissioners court to do so, there is .
similarly no authority for the county auditor to approve the
payment of a salary to such an individual. In addition, the
~county auditor has an affirmative duty to reject a claim or
expenditure of public funds for any such illegal purpose.
Local Gov*t Code f 113.065.
It is well-settled that the constitution does not
confer on the commissioners court general authority over
county business, but gives it only those powers conferred by
the constitution or the statutes or necessarily implied from
those expressly granted. Tex. Const. art. V, S 18; Ganales
V. ugh.J&, 214 S.W.2d 451 (Tex. 1948);,Anderson v. Wood,
152 S.W.Zd 1084 (Tex. 1941) ; Clark v. Finley, 54 S.W. 343
(Tex. 1899); penfro v. Shronshire, 566 S.W.2d 688 (Tex. Civ.
APP. - Eastland 1978, writ ref'd n.r.e.): Starr Countv v.
Guerra, 297 S.W.2d 379 (Tex. Civ. App. - San Antonio 1956,
no writ). An officer having a statutory duty may not be
displaced by the exercise of an implied power by a commis-
sioners court. Terre11 v. Greene, w; Aldrich v. Dallas
$;IJ;~z; 167 S.W.2d 560 (Tex. Civ. App. - Dallas, 1942, writ
As a general rule, public duties must be performed and
governmental powers exercised by the office designated by
law: such duties and powers may not be delegated to others.
Lufkin v. Galveston, 56 Tex. 522 (1882); Woodv v. Texas
Water Comm'n, 373 S.W.2d 793 (Tex. Civ. App. - Austin 1963,
p. 6884
Honorable Mike Driscoll - Page 10 (JM-1281)
writ ref'd n.r.e.); Newsom v. w, 451 S.W.2d 948 (Tex.
Civ. App. - Beaumont 1970, no writ). It has been consis-
tently held that the commissioners court cannot deprive an
officer of the powers, rights, and duties which inhere in
his office, nor require him to delegate the same to another
person seleoted by it; nor can it displace an officer by
authorizing another person to perform duties devolved upon
him by statute. Terre11 v. Greene, m; uich v. Dal1
Countv,-; Marcruart 117 S.W.ld 4::
(Tex. Civ. App. - Galveston 1938, writ iism'd); see al Q
114 S.W.2d 860 (Tex. 1938); --DeWi&
HhLte
o. v. v'Brazori
acT' County 142 S.W.Zd 916 (Tex. Civ. App. -
Galveston 1940, writ r;frd); Strinaer v. Franklin County,
123 S.W. 1168 (Tex. Civ. App. 1909, no writ).
The authority to choose the employees to assist the
county attorney in performing his duties is vested in the
county attorney and not in the commissioners court or the
sheriff. Gov't Code S 41.102 -sea.; Local Gov't Code
5 151.001 et. sea, Further, neither the commissioners court
nor the sheriff may usurp the county attorney's duties by
attempting to assign them to persons under the court's
control or the control of any other county official.
Section 81.023 of the Local Government Code provides the
only vehicle for employment of special counsel, general
counsel, legal counsel, or legal assistants to assist the
county attorney under certain limited circumstances. Since
the employment and appointment of such "legal counsel" by
Commissioner Radack, the sheriff and other county officials
do not comport with such restrictions, such appointments
fail to meet the statutory requisites and are, therefore,
unauthorized.
you also ask about the lawfulness of the commissioners
court's creation of a position of staff counsel for the
sheriff to advise that officer on the powers and duties of
his office. A provision of chapter 158, subchapter B, of
the Local Government Code relating to the Sheriff's Depart-
ment Civil Service System states:
(b) The sheriff may designate as exempt
from the civil service system:
(1) the position of chief deputy:
(2) four positions of major deputy:
(3) one or more Dositions in the
ce of deuartmental leaal counS&; and
p. 6885
Honorable Mike Driscoll - Page 11 (JW-1281)
(4) additional positions in the de-
partment. (Emphasis added.)
Local Gov*t Code 5 158.038.
In our opinion, this provision must be read in harmony
with section 81.023, in order to give effect to both. The
sheriff is authorized to "designate" positions in his
department as that of "legal counsel," but S,A&ovment of
individuals to fill those positions must be made in compli-
ance with section 81.023, b, by the county attorney with
the approval of the commissioners court. See also Grooms v.
Atascosa County, 32 S.W. 188 (Tex. Civ. App. 1895, no Writ);
Attorney General Opinion O-7474.
You also ask whether the county auditor may approve the
payment of a salary to such individuals appointed as legal
advisors to the sheriff or commissioners. Section 113.064
of the Local Government Code provides that the auditor must
approve each such claim before payment by the county, and
that the auditor may require verification by affidavit of
such claims and may administer oaths in connection there-
with. Section 113.065 provides:
The county auditor may not audit or
approve a claim unless the claim was incurred
as provided by law.
Because we concluded in response to your first question
that the employment of legal advisors to the commissioners
court or the sheriff is unlawful in the absence of compli-
ance with section 81.023 of the Local Government Code, it
follows that a claim for salary by any individual not
appointed thereunder may not be approved by the auditor
under section 113.065. See Attorney General Opinion JM-1099
(1989).
SUMMARY
The Harris County Commissioners Court may
not approve the creation of staff positions
to be filled by attorneys to be appointed or
employed by individual commissioners, or by
the sheriff, for the purpose of advising
those officers on legal matters without
complying with the terms of section 81.023 of
the Local Government-Code, which provides
P. 6886
Honorable Mike Driscoll - Page 12 (JM-1281)
that such special counsel be named, and his
terms of employment set, by the county
attorney.
J I M‘ MATTOX
Attorney General of Texas
MARY KELLER
First Assistant Attorney General
LOU MCCREARY
Executive Assistant Attorney General
JUDGE ZOLLIE STHANLHY
Special Assistant Attorney General
RENEA HICKS
Special Assistant Attorney General
RICK GILPIN
Chairman, Opinion Committee
Prepared by Rick Gilpin
Assistant Attorney General
/
./’
P. 6887
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