OFFICE OF THE ATTORNEY GENERAL OF TEXAS 

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: '.. '_ 

'_' 

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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 German was.defendant, and 

wherein it was soughtby certsia bondholders to 

obtain a judgment 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, and authorized 

the employm.enb,oC'a fin0 of attorneys in Abilene, 

Texas; .to., assist~,ixi$.he suit.lf 

.i' Jour‘ietter also states that there was an agreed 

4 

judgmehtentered by the Federal Court, under which Sherman 

County is to reaeivs certain refunding bonds and also is to 

partlbipate pro i‘ata in the sinking funds appertaining thereto end Which had accumulated to the extent of ?lZSC. 

\ '\ ' _' 

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

"Is a county attorney entitled to the legal 

commissions on the money part of this judgment, 

namely, ten per cent on the first thousand dollars 

and five yer cent on the recalnder, ?260.00q? 

“0 COYY”“,C.I,“N I* 10 .I c”I*,I,,~” . . I “PL.P.UFVT.1~ . . . . . ..n* I,.,, .a. I..“-,.-- -.I -..- .----..-.. --.,--., 

__ -,--- .--. _ 
I’r. E. I?. Coons, Zanuery 10, 1939, Pege 2 

The writer 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, 

we shall 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 him pursuant to instructions from the Commissioners1 Court of suoh county, and where 

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 down on .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, and printed on par7e 210 of 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 conclusion 

beingWmhe county attorney is not entitled to commission or fee under Article 375, Revised Civil 

Ptetutes, 1925, on money collected by suit or 

otherwise for the oounty, exoept where it is the 

duty of the oounty attorney to take action in 

behalf or the county,” 

The Aats 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 him to Institute certain suits upon 

his own volition. 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 when he 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, 200 Z. Y. 375, the 

legislature can not take awsy from the county attorney, In a 

county where there is no district 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 ???radg vs. 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 make as 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. 

As further evidence that the duties and rights of the county 

attorney prescribed by the Constitution were restricted, we refer to subsequent Acts of the Legislature conferring additional 

duties an these 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 make it the 

right of the county attorney to represent the county in all 

actions. 

- 

Article 334 of the Revised Civil Statutes, 1925, provides that distriot and county attorneys shall advise and give 

opinions to the various ocunty and Freclnct officers, but this 

does not mean that the Commissioners1 Court la required to employ 

the ccunty attorney in all civil, suits, nor does it mean that 

the county attorney has the ri.yht to represeilt the county in such 

suits. 

In the case of Loosoon vs. Rarris County, 38 Tex. 511, 

the Supreme Court held that the Commissioners’ Court of a county 

had the exclusive right to determine whether a suit should be 

brought in the name and for the benefit of a oounty, except in 

a case where a concurrent or exclusive right is conferred on 

some other official or tribunal by the Legislature to exercise 

in some speoified case a like discretion. The ccurt uses this 

further language: 

“The Ccmmissioners~ Court, presided over by the 

county judge, is virtually a council vested with power 

to manage and direct all of such material and flnancial Interests r.f the county as the laws of the state 

have confided to its jurisdiction. The manngement 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 Se Instituted in the name of and for the 

benefit of the county, end except where a concurrent 
. 

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

. 

right to dc the Sal-e thin3, or where an exclusive ri,vht 

in a speoified 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>'er to determine when a sllit shall bo Institute! In the name of 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 by Article 339, Fevised Civil Statutes, 1925. This was held 

heretofore by this 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.q Commission for the recovery of 

s?ounty funds under the Cuaranty Fank Fund Law on account of the 

bank (county depository) failure, and the county attorney Is not 

entitled to any colrmission on collections made as a result of 

said suit, except as may be Provided by contract between the 

county attorney and the Ccrmissionerst Kurt. 

It is the writer's ccnclusion thet you are not entitled 

to the commissions under .;rticle 335 as a rrsult of the money 

recovered In the s:it wherein 

lined in your letter. 

Therman Ccunfy intervened, as outThe matter of your prcsecuting the intereats of the co!.nty, pursuan t to an instruction or authorization 

by the Commissioners' Cn_urt, was not such as ten be construed 

to have been a r1B;b.t or 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, and only 

such compensation 6s may have been fixed in that ccntrast. 

. Yours respectfully 

A'iTCTTEY EY?ZX~L CP 'l?:xAs 

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