Untitled Texas Attorney General Opinion ( 1964 )

Hon. Hector F. Frausto Opinion NO. c-247
County Attorney
Maverick County Re: Whether it would be proper~for a
Eagle Pass, Texas County Commissioners Court to,,pay'
a fee to one of.its Commissioners,
which fee was allowed by a Dis-
trict Court, for the representa-
tion of an ~indigentin a felony
Dear Mr. Frausto: case under the stated facts.
Your recent request for an opinion from this office
stated the following, in part:
"One of our County Commissioners, who is also
a licensed,attorney was appointed by the District
Court of Maverick County, Texas, to represent an
indigent defendant. This appointment came prior to
January lst, 1963, which was the day on'which this
Commissioner qualified to serve as Commissioner.
'Subsequent to January 1st 1963, the trial of
the case was had in the District Court of Maverick
County, Texas, and the Commissioner participated in
the trial under the appointment, and represented the
Defendant.
"The District Court entered an order in the case
allowing a fee of $25.00 to this Commissioner, in his
capacity as attorney, for representing the indigent
defendant under the Court appointment. This repre-
sentation was in a felony case.
"Before accepting payment of the $25.00 fee
allowed to him by the Court, the Commissioner wants
to be sure that his holding the office of County Com-
missioner would not prevent him from lawfully accept-
ing the fee from the County."
As you also stated, Article 2340 of Vernon's Civil Stat-
utes, and Articles 371 and 373 of Vernon's Penal Code are relevant
to your request.
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Hon. Hector F. Frausto, page 2 (C- 247)
Article 2340 reads as follows:
"Before entering upon the duties of their office,
the county judge and each commissioner shall take the
official oath, and shall also take a written oath
that he will not be directly or indirectly interested
in any contract with, or claim against, the county in
which he resides, except such warrants as may issue
to him as fees of office. Each commissioner shall exe-
cute a bond to be approved by the county judge in the
sum of three thousand dollars, payable to the county
treasurer, conditioned for the faithful performance of
the duties of his office, that he will pay over to his
county all money~sillegally paid to him out of county
funds, as voluntary payments or otherwise,,and that he
will not vote or give his consent to pay out county
funds except for lawful purposes."
Article 371 of Vernon's Penal Code reads as follows:
"Any officer of any county or of any.city or town
who shall contract directly or indirectly, or become in
any way interested in any contract for the purchase of
any draft or order on the treasury of such county, city
or town, or for any jury certificate or any other debt,
claim or demand for which said county, city or town may
or can in any event be made liable, shall be fined not
less than ten nor more than twenty times the amount of
the order, draft, jury certificate, debt, claim or lia-
bility so purchased or contracted for. Within the term
'officerp' is included ex-officers until they have made
a final settlement of their official accounts."
Article 373 of Vernon's Penal Code reads as follows:
"If any officer of any county, or of any city or
town shall become in any manner pecuniarily interested
in any contracts made by such county, city or town,
through its agents, or otherwise, for the construction
or repair of any bridge, road, street, alley or house,
or any other work undertaken by such county, city or
town, or shall become interested in any bid or proposal
for such work or in the purchase or sale of anything
made for or on account of such county, city or town, or
who shall contract for or receive any money or property,
or the representative of either, or any emolument or ad-
vantage whatsoever in consideration of such bid, pro-
posal, contract, purchase or sale, he shall be fined not
less than fifty nor more than five hundred dollars."
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.
Hon. Hector F. Frausto, page 3 (C-247)
This department held in Opinion No. 012682 (1940),,
that employment by the County Commissioners Court of the County
Judge, who was a licensed attorney, as an attorney to represent
the county in legal matters, would be violative of the County
Judge's oath of office and also contrary to sound~public~policy.
The reason for this holding presumably was because the Judge
would receive compensation from the county for his services as
an attorney.
In a further opinion, No. O-4597 (l9+2), this office
held that an Assistant County Attorney could not continue to re-
ceive compensation from the county for services rendered under
a contract entered into before he was appointed as Assistant
County Attorney.
Using the above quoted statutes as authority, it has
been held in many cases that the Cotiissioners Court of a county
may not employ a member of the Court, nor may the Commissioners,
Court pay a claim presented by one'of the.members of the Court.
The case of Starr Countv v. Guerra, 297 S.W.2d 379 (Tex.Civ.App.
19561, held that the employment of a member of a Commissioners
Court by the Court would be contrary to the poli;; githe law
and the oath that each Commissioner must take. DDa
Stewart 66 s.w. 322 (Tex.Civ.App. 19021, the C&t
held that the oath'taken by a County Commissioner would prevent
the taking and enforcement of an assignment of a claim against
a county because the Commissioner's pecuniary interest could
have been directly opposed to the interest of the county under
certain conditions. Under the holding in Cornutt v. Clav County,
75 S.W.2d 299 (Tex.Civ.App. 19341, the payment to a former
County Commissioner for the use of his truck for the period dur-
ing which he was a County Commissioner was denied because his
claim was "against the law and public policy." The Court further
stated: "Such claims or purported contracts are void and unen-
forceable."
In regard to the actual appointment of an attorney for
an indigent defendant, the procedure for such is found in Ver-
non's Code of Criminal Procedure, Articles 494, 494a, and 49&b,
as set out hereafter:
Art. 4%. in Dart.
'Whenever it is made known to the court at an
arraignment or any other time that an accused
charged with a felony is too poor to employ a coun-
sel, the court shall appoint one (1) or more prac-
ticing attorneys to defend him."
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Hon. Hector F. Frausto, page 4 (c-247)
Art, 49ka. in oart.
Vection 1. Whenever the court shall
appoint one or more counsel(s) to defend any
person or persons pursuant to law in'any felony
case in this State, each counsel may, at the
discretion of the trial judge, be paid a fee in
;h;,sE of Twenty;fi;; Dollars ($25) per day fer
a v such aoo in d attornev is aCtUallV ins
Jrial'court representing the person he has'been
appointed to represent. Provided, further, that
in all cases wherein a bona fide appeal is actu-
ally prosecuted to a final conclusion, each ap-
pointed counsel may be paid One Hundred Dollars
($100) for said appeal. Provided, however, on
pleas of guilty before the court
counsel may be paid Ten Dollars
.The fee allowed counsel shall be Dai
~countv wherein such trial isheld and such um
1%
t be
are availdab:e." (Emphasis added).
Art. 49kb.
UIFromand after the effective date of this
Act, no elected county official in this State,
who is a member of the legal profession and
licensed to practice law in this State, shall be
appointed by any court to represent any person
accused of crime, and said official shall be un-
der no duty to defend any such persons under such
appointment unless he chooses to do so."
Article 49&b has been thoroughly discussed in the case
of Williams v. State, 167 Tex. Crim. 503, 321 S.W,2d 72 (19581,
wherein it was held, at page 75, that a lawyer who is an elected
county official is not disqualified from accepting a coilrtap-
pointment as counsel for an indigent accused, if the elected of-
ficial chooses to serve, but that he & relieved of the duty of
accepting such appointment. The Court further specifically
stated, though, that it was 'I* . . not for this Court to decide"
whether such elected official serving as counsel for the indigent
accused could receive compensation from the county for his serv-
ices.
In your specific case, any payment, such as that dis-
cussed, made to the Commissioner would be over and above his
-1200-
. .
Hon. Hector F. Frausto, page 5 (C-247)
regular compensation, and, as shown by Article 494a above
quoted, the payment would be for services rendered the defend-
ant after the Commissioner had taken his oath, since su;zepay-
ment would be for the actual time in the trial court.
payment of the $25.00 would be a direct financial benefit to
the Commissioner and would be paid out of county funds.
In view of the above cited authorities and the cases
interpreting'the same, all of~which we feel are pertinent to
your request, it is the opinion of this office that, while a
lawyer who is a County Commissioner may accept an appointment
from a district judge to represent an,indigent defendant, the
County Commissioner may accept no compensation from the county
he serves for any such representation. It is ouropinion that
the receipt of such compensation would be contrary to the Com-
missioner's oath, and against sound public policy.
SUMMARY
An elected County Commissioner serving as
counsel for an indigent defendant, even though he
is serving by virtue of a court appointment under
Article 494, Vernon's Code of Criminal Procedure,
may not receive compensation for such service from
the county which he serves as County Commissioner.
Yours very truly,
WAGGONER CARR
Attorney General
BY
Edward P. Bolding
EPB:wb Assistant
APPROVED:
OPINION COMMITTEE
W. V. Geppert, Chairman
Howard Fender
Malcolm Quick
Marietta Payne
Joe Long
APPROVED FOR THE ATTORNEY GENERAL
BY: Stanton Stone
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