OFFICE OFTHEATTORNEY GENERAL OFTEXAS AUSTIN January 10, 1939

Honorable E. E. Coons County Attorney Stratford, Texas

Deer Kr. Coons: ',
i ',, Opinion RI. o-45 v-- De! Feesof CCmuty'.,Attornep

Thle department acknowledges receipt of your letter of January 4, 1939, the ztzeterial part of whioh\is quoted as follows: '.. '_'_'

. "\, WShemen County, by'authority of its oorcmissionersl Ccurt, intervenedtin a.sui.t in the District Court of the United States at Abilene, Texas, in which the City of Germanwas.defendant, and wherein it was soughtby certsia bondholders to obtain ajudgment against the said City of Corman for principal and interest or its defaulted bonds. In its order authorizing such intervention, the Ccmissioners' :Court instructed the County Attorney to request pemission to.intervene, andauthorized the employm.enb,oC'a fin0 of attorneys in Abilene, Texas; .to.,assist~,ixi$.he suit.lf
.i' Jour‘ietter also states that there wasanagreed 4
judgmehtentered bythe Federal Court, under which Sherman County is to reaeivs certain refunding bonds andalso is to partlbipate pro i‘ata in the sinking funds appertaining thereto endWhich hadaccumulated to the extent of ?lZSC.

\ '\ ' _' You* question, upon whioh your request for an opinion is predi~cs-ted, is I

"Is acounty attorney entitled to the legal commissions on the moneypart of this judgment, namely, ten per cent on the first thousand dollars and five yer cent on the recalnder, ?260.00q?

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_I’r. E. I?. Coons, Zanuery 10, 1939, Pege 2

Thewriter reels that to intelligently answer this question, it should be reststed in c,rdor to be in keeping with the facts of your case as sbove outlined. Therefore,
weshall endeavor to answer the following question which includes the essential part of ycur question:

Is a county attorney entitled to the legal commissions authorized under Artiale 335 in civil actions where money is recovered end oollected by himpursuant to instructions from the Commissioners1 Court of suoh county, andwhere such body authorized the employment of special counsel to assist said county in proseoutdon of the suit?

This subjeat has been treated before in opinions by this department, namely, Opinion 2325, handed downon .1pril 6, 1921, end printed on paoe 404 of Reports end Cplnionn of the Attorney General for 1920-1922, end Opinicn 2673,, rendered T’arch 19, 1927, andprinted onpar7e210of Reports end Cpinions cf the Attorney General for 1926-1928. Such opinions, however,

were not based upon facts directly in point with your case, but sufficiently similar to enabled us to quote one conclusion which was reached in both of these opinions, such conclusionbeingWmhecounty attorney is not entitled to commission or fee under Article 375, Revised Civil Ptetutes, 1925, onmoney collected bysuit or otherwise for the oounty, exoept where it is the duty of the oounty attorney to take action in behalf orthe county,”

TheAats ot 1876, Se&ion 1, Page 283, Genera.1 Laws, Volume.8, pages 922 and 1119, define the duties of county attorneys, and the rights and duties therein ccnferred are of such nature as to reouire himto Institute certain suits upon his ownvolition. This also lilrited the county attorney to actions in county courts end inferior ccurts of his county, except in the absence of the district attorney whenhe shall represent the State in all cases in the district colirt. UiS Compensation for all ‘such services was prescribed therein. Rowever, the oountp attorney is authorized by tke Constitution to represent the State in all ceses in the dlstrlct and inferior courts in his county, and under the decision of the ?upaeme Court in the case of Feude vs. Terrell, 200Z. Y. 375, the legislature can not take awsy from the county attorney, In a county where there is nodistrict attorney, the rl;tht to represent the State 

### In all cases in the trial courts. The Constitution doesnotrequme the dutles of the county attorney In representing‘the county.Vr. E. E. Coons, January 10, 1939, Page 3

In the case of ???radgvs. prooks, **a9** 9. W. 1052, the Supreme Court stated that “the prinoipal purpose of the Constitution in oreatlng the offices of district at:.orney and county attorney was to makeas the main funotfons of these officers, the proseoution of criminal cases.“’ Rowever, the legislature has from time to time conferred additional duties upon these officers, but no authority is found In the statutes that makes the county attorney the representative of the county in siiits. Asfurther evidence that the duties andrights of the county attorney prescribed by the Constitution were restricted, we refer to subsequent Acts of the Legislature conferring additional duties anthese offloers, such as Article 0716 of the Revised Civil Statutes, 1925, which provides that the county attorney shall represent the county in certain s’ults for demages. Clearly, it is not the intention of the Legislature to makeit the right of the county attorney to represent the county in all actions. -

Article 334 of the Revised Civil Statutes, 1925, provides that distriot andcounty attorneys shall advise andgive opinions to the various ocunty andFreclnct officers, but this does not meanthat the Commissioners1 Court la required to employ the ccunty attorney in all civil, suits, nor does it meanthat the county attorney has the ri.yht to represeilt the county in such suits.

In the case of Loosoon vs. Rarris County, 38Tex. 511, the Supreme Court held that the Commissioners’ Court of a county had the exclusive right to determine whether asuit should be brought in the nameandfor the benefit of aoounty, except in
acase where aconcurrent or exclusive right is conferred on someother official or tribunal bythe Legislature to exercise in some speoified case alike discretion. Theccurt uses this further language:

“The Ccmmissioners~ Court, presided over by the county judge, is virtually acouncil vested with power to manage and direct all of such material andflnancial Interests r.fthe county as the laws of the state have confided to its jurisdiction. Themanngement of the financial affairs of the county have alf:ays heretofore been vested in tribunals which have existed at different times under various names and designations, such as county court, commissioners1 court, etc.; they have, however, all been clothed with similar pov:ers, and like duties have been imposed uron them. The cornmissioners’ court undoubtedly has the right to cause suits to SeInstituted in the nameof and for the benefit of the county, end except where aconcurrent.

r T l7-. Coons, yanuary 10, 1939, Face 4

. right to dcthe Sal-ethin3, or where anexclusive ri,vht in aspeoified onse or cases is conferred upon some other tribunal or some other officer of the Covernrent, the cormfs?ioners~ court must be deemed to be the quasi executive head of the county, vested ?lith exclusive poT>'erto determine when asllit shall bo Institute! In the nameof and for the benefit of the county.

The Co~~lssionera' Ccurt has authority to employ counsel to the exclusion of the oounty attornsy to institute suits In behalf of the county, escept actions aeainst office holders as provided byArticle 339, Fevised Civil Statutes, 1925. This was held heretofore bythis departrent in Opinion 2673, above mentioned. This opinion also held that the.Commissioners* Court hes the authority to employ counsel to the exclusicn of the county attorney to bring suit against the ?ankd.n.qCommission for the recovery of s?ountyfunds under the Cuaranty FankFundLawon account of the bank (county depository) failure, andthe county attorney Is not entitled to any colrmission on collections madeas aresult of said suit, except as maybe Provided by contract between the county attorney andthe Ccrmissionerst Kurt.

It is the writer's ccnclusion thet you are not entitled to the commissions under .;rticle 335 as arrsult of the money recovered In the s:it wherein lined in your letter. ThermanCcunfy intervened, as outThematter of your prcsecuting the intereats of the co!.nty, pursuant to aninstruction or authorization by the Commissioners' Cn_urt,was not such as ten be construed to have been ar1B;b.tor duty prescribed or conferred by the Constitution or Legislature upon your office. Therefore, if you are entitled to any compensation, it must be by reason of contract between yourself and the Ccmmissioners' Court, andonly such compensation 6s mayhave been fixed in that ccntrast.

. Yours respectfully

A'iTCTTEYEY?ZX~LCP'l?:xAs
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