Case Information
*1 R-443 l,CE ,>.\SIEI. TORSPY ,iK.~~",\l. .&I ,,y&s -de+- June 2, 1547
&&&L. ; Hon. Wayne L. Hertman Opinion No. V-232
County Attorney
DeWFtt County Re : Authority of Commls-
Cuero, Texas sioners’ Court to re-
fund attorney’s fee paid by a commls- sioner in defense of an actIon for damages.
Dear Mr. Hartman: Yours recent request for an opinion of this
Department Is substantially as follows:
“Several months ago a $40,000.00
damage suit was flied against the Commis-
sioner of Precinct. No. 1, Dewitt County,
Texas, individually, for alleged negli-
gence in failing to repair a county bridge
located in his precinct, which negligence
is alleged to have proximately caused the
death of a school boy killed while travel-
ing across said bridge. The bonding com-
pany which furnished said CommLssioner’s
bond was joined in said suit. After said
Commissioner had been duly served with
process in said suit, he employed and paid
attorneys to represent him in his indivi-
dual defense, and also, in accordance with
his contract with the bonding company, he
employed and paid an attorney to represent
the bonding company in its defense. Sub-
sequently, by amended petition, DeWItt
County, Texas was made a party defendant
in said suit, and the Commissioners’ Court
employed the attorneys representing the
said Commissioner of Precinct No. 1 indlvl- - dually and the attorney dmployed by him to
represent the bonding company, to assist
the County Attorney in defending the suit
against Dewitt County.
.
Hon. Wayne L. Hartman - Page 2
"The said Commissioners' Court is now desirous of refunding to the Commissioner of Precinct No. 1, o,ut of County funds, the sum he has paid to his attorneys and to the attorney for the bonding company, Ln addi- tion to paying said same attorneys a fee for representing the County, if this can be legally done. . .
"1. In view of the fact that Dewitt County itself is now a party defendant in said can the Commissioners' Court of Dewitt County legally refund to the Commis- sioner of Precinct No. 1, out of County funds, the sum he has paid his attorneys to represent him individually in said suit? "2. In view of the fact that Dewitt County itself is now a party defendant In said suit, can the Commissioners' Court of Dewitt County legally refund to the ComQis- sioner of Precinct No. 1, out of County funds, the sum he has paid an attorney to represent the bonding company, said payment having been made in accordance with said Commissioner's contract with said bonding company?" Volume 11, Texas Jurisprudence, page 575, reads as follows:
'The commissioners' court has power to employ attorneys to assist the regular con- stituted officers of the county in the prose- cution of its claims and suits, and to pay for such services out of the county funds. It seems, however, that the Commissioners' does not have the power to deprive the county attorney of his rightful authority in this regard. The employment of counsel is restricted to special cases where the ser- vices of an attorney are required; nor has the court power to mske an order which will warrant the payment of county money to an attorney for services neither required nor performed. Adams vs. Seagler, 250 SW 413, Gibson vs. Davis, SW 202, Terre11 v~s. Greene, SW Glooms vs. Atascosa County, 32 SW 188."
Hon. Wayne L. Rartman - Page 3
In the case of Bryan v. Liberty County, 299
S.W. 303, the Court stated as follows:
"It has long been the law in Texas
that a county is not liable In damages for
personal injuries sustained by one in con-
sequence of the tortious or negligent acts
of its agents, servants, and employees,
unless such liability be created by statute,
either In express terms or by implication.
Heigel v. Wichita County, 84 Tex. 392, 19
S.U. 31 Am. St. Rep. 63; Walton V.
Travis County, 5 Tex. Civ. App. 525, 24 S.W.
352; Crause v. Harris County, Tex. Civ.
App. 375, 44 S.W. 616; Riley v. Coleman
County (Tex. Civ. App.) S.W. 743; Ger-
hart v. Rarrls County (Tex. Civ. App.) 244
S.W. 1103; Harris County v. Gerhart, 115
Tex. 449, 283 S.W. 139. All these author-
ities sustain the counter proposition ed-
vanced by defendant in error here that a
county Is not liable In damages for personal
injuries negligently Inflicted by the county's
agents, servants, and employees, in the ab-
sence of e statute creating such liability in
express terms or by implication."
This Department, in en opinion numbered O-4955, dated November 17, 1942, stated the rule in this nmnner:
the Commissioners1 Court has the
power and authority to employ attorneys In
the prosecut'ion of its claims and suits and
pay for such services out of the General Fund of the county where the county, as a whole,
Is interested and effected In such proceed-
ings. "
In your factual situation the Commissioner of
Precinct No. 1, In defense of a negligence employed.
counsel in his Individual capacity to defend the same.
Subsequently, the county was joined and retained the same counsel to assist the attorney for the State in the re: presentation of the interests of the county.
Applying the rule that a county IS not liable for the tortious acts of Its employees, your first question should be answered in the negative. Despite the fact that the county is later made a party to the lawsuit furnishes no legal basis for the refund of money paid by a colrPnIssioner in his Indlvi- *4 . . ’
Hon. Wayne L. Hartman - Page 4
dual capacity. However, since the suit against the county affected the county as a whole, counsel may be employed and paid for by the county to assist the County Attorney.
In construing the authorities, the dis-
tinction is drawn between the commissioner on the one hand acting In his Individual capacity and,~ the Com- missioners’ Court acting in the interest of the county es e whole. Therefore, In view of this distinction end the fact that a county Is not liable for the tor- tlous acts of its employees, your second question should also be answered In the negative.
SIJMMARY
A county connnissioner who is sued lndivl- dually in a negligence action msy not be re- imbursed by the Commissioners~ for attorne,y’s fees expended by him. The Court may employ attorneys to defend a suit brought against the county and pay for such services out of the General Fund of the county where , the county, as a whole, .is Interested and affected by such proceedings.
Yours very truly ATTORNEY GENRRAL OF TEXAS Burnell Waldrep BU:djm Assistant
ATTORNEY QXVERAL