Untitled Texas Attorney General Opinion ( 1944 )

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OFFICE OF THE ATTORNEY GENERAL OF TEXAS
QmYvmnIsLLLrnrnB AUSTIN
LITTOrn”..
0.I.I.L
Honorable Xi. Edward Johnson
County Attorney, Hood County
Qrtmbury, Teraa
Dk Mr. Jobneon:
ioatlon and quota iron
oolulty At-
in bahali of
j a portion of
ott by hn ad-
d such portloh ot
r deed thereto from
olairdsd the r)ame by
n of the abandonment
way by raid oonntf?
pears ago a osrtain party who
aaid oree k and oounty road fenced
the old ore& oroselng and ford a8
portion of the road used as a by-pass to
the main oounty road. Thio party laid claim to euoh
lmde, and prohibited the pasaags of ,the oounty road
machinery and equipment thru and aoroas the break
oro88lqs and ford.
Honorable H. isdmrd Johneon, p:@e 2
“The Co.xunissioners’ Court of thle county
then lnetruoted its County Attorney, by it8 order
duly entered, to bring suit for the reoovery OS the
lands fenced by the landowner and to remove the
Sencee from the right OS way from the old roadway
or by-pm. Guoh euit woa Silcd in the Distriot
Court OS this oountg, and reeulted in a judg.xmnt in
Savor OS the oounty ror the recovery of the roadway
and for removal oS the Senoea and othor obetructlons
to euoh old roadway OS by-pose.
“ehils tha Commleaioner*s Court in its order
provided Sor the payment of a See. to Its County Attorney
ror his servloss in oonneotlon with the fault, a qusetion
has now arleen aa to whether or not auoh County Attor-
ney would be entitled under law to any compensation Sor
his Bsrvloes in connection with suoh suit. The Oommie-
iloner’ Oourt has now taken the position that it ie
the legal duty of euid County Attorney, by virtue of hi8
offioa to bring euoh Wit for and in behali OS tha oounty,
wlthout any oompeneatlon therefor.
“It is my opinion that such Co,untp Attorney owe@
no legal duty to the County or ita Commiaslonsr*r tiur8
to bring euoh cult, and t&t our lawa do not require that
a County Attorney bring any euit OS this nature In bs-
hit OS his oounty.
” * * *n
We note with approval that you have oited in your
letter nunierou~ authorities in support OS your conclusion rsaohad
therein, namely:
City National Bank Y. Presidio County,
aa 8. w. 777;
Waxier v. Stnts, 241 S.W. 231;
Duncan v. Stets, 61 S. W, 903;
Lattimore v. Tnrrant County, 124 3. W. 205i
Attorney General’s Opinion No. o-1040;
Attorney General’0 Opinion no. O-3558;
Attorney Oener’al’a Opinion No. o-4301.
Honorable H. Edward Johneon, pnge 3
.!a an addition to and in supplement of tharabovo
mentioned oginlons of thie department, which MI preeume you
hnre, we are uttaching hereto our Opinlone No, O-9599 and
No. O-225, whloh am alao in point.
Ths principal purpobge of the Conatltutlon In
orrating the orrloe or county attorney wan to mka Its main
Sunotion the proeeoutlon of orli~~Ana1 oasee. (see Brady v.
Brooka, (Sup.Ct.) 89 3. W. 1052) tiowevbr, the Lep,ialaturr
has from time to time oonferrad additional duties upon auoh
0rri00, but we are unable to dlaoOvsr any provlrlon 0s the law
requiring a county attorney to represent the count.v in suoh
oaaea a8 dsrorlbed in your etc.t&zent of faote eet out horein.
Thereroro, we oonour in the conclueione exprosard
in your letter end hold further that much oounty attorney ir
ontitled to rrcleonetble oompsnsation for him srrvlotm rmderod
In such rult.
Ypure very truly
rfFTORNX!tOENERALOF TEXA8
RLLIEP
Enor.