Case Information
*1 ~-863 . - ?03 OFFICE OF THE A~ORNEY GENERAL
AUSTIN. TEXAS
PRICE DANIEL October 1947 *TTmwzY GENERAL
.Hon. Ii. P. Guerra, Jr. opinion NO. v-416
Cohnty Attorney
Starr county Rio Grande City, Texas Re: Authority of the Com-
mIssIonera Court to retain counsel under the submitted facts.
Dear Sir:
We refer to your letter requesting an opinion
as to whether the Commlssloners~ Court of Starr County
has the authority to employ an attorney to draw up the
necessary orders and instruments for redistricting of
the commlssloners~ precincts, justice prealncts, and
election precincts in actiordance with an order passed
by the Commissioners1 Co&t. The County Judge and two I commissioners voted in favor of the order and two com-
mlssloners voted against said order.
You ask also whether the Commlsslonersg Court
baa the authority to employ an attorney to represent It
iu defense of a suit seeking to enjoin carrying out
of the above metitioned order.
We quote.,the following pertinent statutory
provlslons:
"Art. 2343. Aby three members of the'
said court, Including the county judge, shall
constitute a quomnn for the transaction of
an; ~ufilness, except that of levying a county
"Art. 2351. Each commlssloners court
shall:
"1. Lay off their respective counties
into prealncts, not less than four, and not
more than eight, for the elctlon of justices
of the peace and codstabltis, fix the times
and places of holding justices kourts, and
shall establish places In suoh precincts
where elections shall be held; and Shall
,. ~..: :_. :
; T I _ 104 L’. Hon. Ii. P. Guerra, Jr. - Page 2
establish justices precincts and justices Courts for the unor pnlzed counties as pro- vided by law. . . .
"Art. 2933. Each commissioners court may, If they-.deem :Xt proper,, at each August term of the court, divide their respective counties, and counties attached thereto for judicial purposes+,into conven~entl.elec,t+n precincts; 'each.of"which shall be diff~r,~nt;ly,:..I.:.
. numbe~d.and~:descrlbed by natural or"art$fi‘-',:l.~.Y: .:-cLal~bcl?qlar$es or survey llpes,,by,anior;der ..~'. ,: , to..be:.enter@...upon the minutes of the court.
.-',:They:j'~hal~..~~edlately thereafter publish such'orddr'in' some newspaper In the county for three consecutive weeks. If there be.no ~.:.. newspaper in the county, then such copy oft *~. ~.i~,,By;~~~~~~:~.os~ +e+abave guoted,:@atatory Pro- visi~~p~~~~~~~.l~ylng,,~~.,~f~~~oijlio2L)~jopers!~~~~~~ncts, jus- tice,Yprecincts; .~~~d,:electSoq:jpirii!~inc‘t.~;:~~.~:.:~~t?~s. of. cbkiti"~6 'the' county. It% ~f#~$Qp~$4~~ $ha,t in spe- clal matters where the interest of the county may require the. services of.an:attorney,~.a,,~o~~sgio~~r?.! Court has the'power and authorlty'to hire counsel to aidthe Com- missioners' Court In carrying out Its duties and also to represent..:the..c~.ya~~~-;~ln.,-l~~e~~I!thatl,dlrec.tly concern county;business~.;~ .~aepls:.v,;;Selgler;:,~l12; $.I,:.W. Gibson V. Davis;,.,236.;'S,i:W.: .202,,.:?12:;~1~.~~~~~ston C.ounty.,v...Gresh- am, 220 $ic,rW, 260;. &i Tex,! c..Jyr,r, 57& I .: -:... ;: :-: Under the facts presented In your Inquiry, the Commissioners' .Court,,elpploge,~,,an attorney-,@? draw the necessary.orders 'to carry out such changesand redls- trlcting of commlsslonerst precincts, justice precincts, and election p~ecincts.~.,,,Qln~e~:th~~Fo~,~ss~oners~ Court had the.:power to~~:lay cff-!~uch,,pseqincts,~ italso had the authority: to: employ:an.attqrng.:~~o prepctre;the~ necessary orders to carry,..,out : such- pov.ep.s:l.z, ,~:~.:"~ +: x::.,,r'. ., : '. :.. i : :1 i! .: .:,. : :. ;;.j:.ii r.i,;;~;:‘ .:... ? ":: i. :: .> .:.. .::: ..,.., ,.
r
~,Bi answer to yoUr s&and question, we *efer gou tO'tha CaS8'of City "National. Bank ~of-dustin vi Pre- sidio.Cormty, S..lf. wherein i&was held that the CoImnissloners~ CoUrt was authorized to employ counsel to *present the Commlssloners! Cow$ln a suit which was brought against a coUnty jtige and commlssloners to en- join the alleged 1118g41 action of the Qnninlssldn8rst court in removing th8,COtltlty seat 6f Pr8Sldl6 OoUnty fr.am Ft. Davis to Maris, ,The .CoUrt held that while the Suit was ~ncmlnally against them as lndlvldasls, its de- siga'and effect was to control the performance of thelr official acts aUd was a matter of concert&to th8 county.
We quote the following:
w8 aXW'Clearly of oplnion~that the com- miSSlOn8rS.dld not~exceed th8ir powers in the
employment of the attomeys, 86 far as the
suit of Carothers against the.~oun~~{d~,
and commlssloners was concerned.
*as ncmlnally axsuit against them as lndlvi-
duals, .lts design and effect was to obstruct
and~control the performance of the offlclal
acta, and W8 are not disposed to hold %n such
a case that they must,do nothing towards de.-~ fending such suft,. or,~~must employ~caunsel at
their own expense. They had power to employ
couns81, and to defray the reasonable expense
thereof out,of the county~funds."
The Court also held that the right to employ counsel was not dependent upon whether the order of the ~Commlssloners~ Court which was under attack'waa valid or Invalid. 'We quote, the .followlng:
ItIn OFd8r'tO assw8 a speedy, certain, and proper.declslon of the question, the com-
mlssloners doubtless conoluded tbatboth the
cases should be properly prepared and pre-
sented, and we do not believe they abused their authority In employing counsel to ac-
complish this. It was in pursuance of their
duties to do SO. We conclude for these rea-
rioas that the employment of counsel In the
case' of Stat8 v. Carothers was a legal exer- ,CiS8 Of pOW8r on the part Of the COUUtliSSiOn-
ers, done in the lntezest and bus$ness of the
county. These views are supported by author-
Hornblower v. Duden 35 Cal. 664s Dos- ~~~*v. Howe, Kan. 353;'Ellis v. Wasioe
106.~tEon . ii. P. Gu&ra, Jr. - Page 4 .:
Co., 7 Rev. 291. Thg validity of their acts
was uot affected by th8 fact that th8Y were
miStak8n. or that there was an adverse'deci-
sion of the auestlon. It has been freauentlg
held that the Dower cannot be measured bs.
such a rule." (Emphasis ours)
Although the suit In the Instant case was nomi- nally~ against th8 two commissioners and the county judge Of Starr County who voted affirmatlv8ly to carry out such redlstrlctlng, it is our opinion that Its design and ef- feet was to Control the performance of the Commissioners~ Court's offlclal acts and was a matter of concern to the county under the rule laid down In the Presidio County case. Therefore, the Commlssloners~ Court had the power to employ an attorney to represent them.,
We note that according to your request, the county auditor has refused to approve the account pre- sented by such attorney for services rendered by hImto Comalssionars~ Court bn.th8 ground tbat.the amount to be paid him Is exorbitant and excessive. This Is a fact question which this office cannot pass upon. ~Eov- ever,iit is our opinion that the CommissFoners' Court of Starr County had the power to employ couns.el to perfop the services mentioned in your request and to pay such attorney a~,r8aSonabl8 sum.
The Commlsslonersl Court la authorized to FJIIlplOy COIlUSe t0 prepare n8c8SSal'y Ol'd8r8 t0 carry out the redlstrlctlng of commlssloners~ precincts, just108 preclncts'and electI+ pl'e- clncts, and to represent the CommIssIonera
Court In an action brought by Individuals to
enjoin the Court frca~ puttlug Into 8ff8Ct'~SpCh r8dlst~lcting and pay such attorrMy~a'reasonabl8 sum for the services rendered. Gelveston Co&ty v. Gresham, 220 S. W. Qrooms v. Ati3scosa county, s. w. 188.; City National Bank of AUS- tin v. Presidio County, S. W. 775.
Very truly yours
APPROVED:~ ~~ATTORI@XGEBEFiALOFTXAS ._ Assistant
ATTORHEY QBRERAL JRtdlm:it