Untitled Texas Attorney General Opinion

The Attorney General of Texas
JIM MATTOX
August 31, 1984
Attorney General
Supreme Court Building
Honorable George J. Filley, III opinion No. ``-198
P. 0. Box 12546
Austin, TX. 76711. 2546
Criminal District 1.1,torney
512/475-2501 Victoria County Coul,thouse lb: Whether certain payments
Telex 9101874-1367 Room 341 to a district attorney for work
Telecopier 512/475-0266 Victoria, Texas ;'i
901 rendered in his private capacity
are proper
714 Jackson, Suite 700
Dallas, TX. 75202.4506 Dear Mr. Filley:
2141742-8944
You advise UE that the commissioners court of Victoria County
4824 Alberta Ave., Suite 160
authorized a formcc criminal district attorney of that county to
El Paso, TX. 79905.2793 perform legal serv:.ces in his private capacity in connection with
91515333464 certain condemnation matters. You inquire as to the propriety of
payments made from the county's road right-of-way fund to the criminal
district attorney :inaddition to the regularly budgeted county salary
-01 Texas, Suite 700
paid him for the pr,cformanceof his statutorily required duties. The
mston, TX. 77002-3111
7131223.5666
legal services described to us were performed in condemnations that
resulted in acceptr:r.ce
of the award of the special commissioners.
806 Broadway, Suite 312 The additional payments were paid to him in his capacity as a
Lubbock. TX. 79401.3479 private attorney arlifor services rendered "on county time." You also
8061747.5238
inquire as to the county's remedy if the payments were improper. We
conclude that the county's contract with the criminal district
4309 N. Tenth, Suite S attorney and the :?ayment for legal services in the condemnation
McAllen. TX. 78501-1685 matters were not imr'roper.
5121682.4547
In Victoria CclL.nty,
the criminal district attorney serves as both
200 Main Plaza. Suite 400 county attorney and district attorney. V.T.C.S. art. 37&k-59. A
San Antonio. TX. 782052797 county commissionerricourt has authority to retain private counsel in
5121225.4191 the prosecution of civil suits involving county matters and may employ
the county attome:r to represent the county in any civil matter where
An Equal Opportunity/
such representation is not prohibited by law. See Lattimore V.
Affirmative Action Employer Tarrant County, 124 S.W. 205 (Tex. Civ. App. - FortWorth 1909, no
writ); Attorney General Opinion O-1040 (1939). Generally, a county
attorney is not required by law to represent the county In condemna-
tion proceedings filed by the county in the name of the county or the
state and may contract with the commissioners court to perform such
legal service. See Attorney General Opinions WW-929 (1960); O-1164
(1940); O-1040 (i%). Article 6674w-3, section l(b), V.T.C.S.. pro-
vides that the county attorney or criminal district attorney has the
duty to prosecute LI condemnation suit brought by the State Highway
p. 871
.
Honorable George J. Filley, 711 - Page 2 (JM-198)
Commission in the name of tte state to acquire highway right-of-way,
if the attorney general directs the criminal district attorney to do
so. That statute is not aFFlicable, however, to the facts presented
to us since the condemnatior,proceedings in question were filed by the
county in the name of the state.
A county attorney may :Il)t
contract to receive extra compensation
from the county for perforrljaga statutory duty. See V.T.C.S. art.
336; Attorney General Opin:.ons JM-14 (1983); O-2610 (1940). The
statutory duties of the crisinal district attorney for Victoria County
are prescribed by article 326k-59, section 3, V.T.C.S., which provides
as follows:
[it] shall be the! duty of the Criminal District
Attorney of Victo:r:laCounty or his assistants as
herein provided to be in attendance upon each term
and all sessional of the district courts of
Victoria County an<:all of the sessions and terms
of the inferior courts of Victoria County held for
the transaction of criminal business, and to
exclusively reprel!c:ntthe State of Texas in all
criminal matters pending before said courts and to
represent VictoriilCounty in all matters pending
before such court3 and any other court where
Victoria County h;; pending business of any kind,
matter or interczt, and in addition to the
specified powers given and the duties imposed upon
him by this Act all such powers, duties, and
privileges within 'Jictoria County as are by law
now conferred, or which may hereafter be conferred
upon the district and county attorneys in the
various counties and judicial districts of this
state. (Emphasis added).
It is well establishec!that up to and including the award of
special commissioners, a corli,emnation
proceeding is an administrative
and not a judicial proceediriE,.Lo-Vaca Gathering Co. V. Gardner, 566
S.W.2d 366, 368 (Tex. Civ. Igp. - San Antonio 1978, no writ). The
court in Grant V. United Gas Pipeline Co., 457 S.W.2d 315, 319 (Tex.
Civ. App. - Corpus Christ1 1570, writ ref'd n.r.e.), held that
it is well settled that the filing of the state-
ment in condemnation, the appointment of the
commissioners, thf! filing of the commissioners'
award, and the fi:L:lngof objections to the award
of the commissionec~ in eminent domain proceedings
are administrative, and not judicial proceedings.
The jurisdiction I)::the court, as a court, does
not attach unttl the objections to the
p. 872
‘ .
Honorable George J. Filley, :[I1- Page 3 (Jh-198)
commissioners' itward are submitted to and
determined by the I:ourtas a judicial tribunal.
Another court of civil apI)cals stated that "an eminent domain pro-
ceeding does not become a civil case pending in a court until a party
to the proceedings has filed his objections to the commissioners'
award." Lemmon v. Giles, 342 S.W.2d 56, 59 (Tex. Civ. App. - Dallas
1960, writ dism'd). Until the filing of objections by a dissatisfied
party, condemnation proceedings are only administrative proceedings in
which the judge acts as an administrative agent, not as a judge of a
court performing judicial duties in a pending lawsuit. Henderson v.
Texas Turn Ike Authorit , 308 S.W.2d 199, 201 (Tex. Civ. App. - Dallas
w als; Pearson v. State, 315 S.W.2d 935 (Tex.
1958).
While the criminal dis,:rictattorney for Victoria County has a
statutory duty prescribed by article 326k-59 to represent Victoria
County in all matters pendxg before the courts where the county has
"pending business of any k:.rtd,matter, or interest," we believe that
the legal services for which the criminal district attorney was paid
constitute administrative p::oceedings and not judicial proceedings,
and were not matters pentli.ngbefore the courts. Accordingly, we
conclude that the criminal district attorney was not performing a
statutory duty when he performed the services described to us and that
it was not improper for the commissioners court to contract with him
for such services in his cap;nzityas a private attorney.
We note, however, that effective September 1, 1983, the criminal
district attorney in Victoria County became a "district attorney"
within the meaning of the P:rofessionalProsecutors Act, which provides
that a district attorney governed by the act may not engage in the
private practice of law. Vr:.C.S. art. 332b-4. 02, 95(a).
You also raise a question of the propriety of services being
rendered "on county time." We recently concluded in Attorney General
Opinion JM-22 (1983) that public officers are not required to observe
specified working hours. The compensation attaching to a public
office is incident to the title to the office and not to the
performance of any particulsirduties. Uhr v. Brown, 191 S.W. 379, 383
(Tex. Civ. App. - San Ant,cnio 1916, no writ); Presidio County v.
Walker, 69 S.W. 97, 99 (l'tx. Civ. App. - 1902, writ ref'd). Of
course. all district and cc'tntyattorneys may be removed from office
for incompetency or officia:.misconduct, which includes the "wilful or
corrupt failure, refusal or neglect of an officer to perform a duty
enjoined on him by law." V.T.C.S. art. 5973; see V.T.C.S. arts.
5970-5972; art. 332d.
p. 873
Honorable George J. Filley, III - Page 4 (JM-198)
SUMMARY
It was not improper for the commissioners court
of Victoria County to contract with and compensate
the criminal distr'ictattorney for legal services
in certain conderrLationmatters that were per-
formed in his capacity as a private attorney.
J b
Very truly your
4
JIM MATTOX
Attorney General of Texas
TOM GREEN
First Assistant Attorney General
DAVID R. RICHARDS
Executive Assistant Attorney General
Prepared by Nancy Sutton -
Assistant Attorney General
APPROVED:
OPINION COMMITTEE
Rick Gilpin, Chairman
David Brooks
Colin Carl
Susan Garrison
Jim Moellinger
Nancy Sutton
p. 874