DAN MORALES 

ATTORNEY GENERAL 

QfXfice of the TZittornep @eneral 

Mate of Eexaa 

June 29,1992 

Honorable Richard B. Townsend 

County and District Attorney 

Morris County Courthouse 

500 Broadnax Street 

Daingerfield, Texas 75638 

Opinion No. DM-133 

Re: Authority of the Morris County 

Commissioners Court to reimburse 

private landowners for attorneys’ fees 

incurred in right-of-way action against 

another landowner (RQ-161) 

Dear Mr. Townsend: 

You ask whether Morris County (the “county”) may reimburse private parties 

for attorneys’ fees incurred in litigation. You describe the fact situation which gives 

rise to your question as follows: A corporate landowner sued the county to prevent 

the county from reopening an old county road which was the subject of a right-ofway dispute. Two other private landowners sued the corporation to gain access to 

their land via the same road. The corporation prevailed in both lawsuits, and now 

the two private landowners seek to have their legal expenses reimbursed by the 

Morris County Commissioners Court. You ask whether the Texas Constitution -- 

particularly article III, section 52; article VIII, section 3; or article XI, section 3 -- 

prohibits this use of public funds. We conclude that article III, section 52 of the 

Texas Constitution prohibits a county from reimbursing private litigants for their 

attorneys’ fees in the circumstances you describe.’ 

Article III, section 52, provides in pertinent part: 

[Tjhe Legislature shall have no power to authorize any 

county . . . of the State to lend its credit or to grant public money 

or thing of value in aid of, or to any individual, association or 

corporation whatsoever . . . . 

‘Because we conclude that the expenditure is prohibited under article III, section 52, we do 

not address whether it may also be prohibited under article VIII, section 3, or article XI, section 3. Nor 

do we address a court ordered award of attorneys’ fees to the prevailing party io a suit against the 

county, or attorneys’ fees awarded as part of a settlement in a suit against the county. 

p. 688 
Honorable Richard B. Townsend - Page 2 (DM- 13 3 1 

Tex. Const. art. HI, 0 52(a). The purpose of this provision of the Texas Constitution 

is to prevent “the gratuitous application of funds to private use.” Bmzoti County v. 

Perry, 537 S.W.2d 89, 90 (Tex. Civ. App.-Houston [lst Dist.] 1976, no writ). See 

genera@ Wiiatt, Conrtinrtional Resni&ns On Use Of R&k Money and R&Kc 

Credit, 38 TEX. B.J. 413 (1975). While it is in the province of the governing body to 

ascertain whether there exists a public purpose which justifies the expenditure of 

public funds, see Attorney General Opinion JM-824 (1987) at 3, this constitutional 

provision requires that the public receive consideration in exchange for its 

expenditure and that it exercise some control over the use of the funds. Attorney 

General Gpiiom JM-964 (1988) at 5; JM-768 (1987) at 4-S; Willatt, supra at 422. 

Cotmties and their commissioners courts have general authority over county 

roads. See Ten Const. art. V, 0 18(b) (commissioners court to exercise jurisdiction 

over county business as provided by law); V.T.C.S. art. 2351(2), (5) (commissioners 

court to exercise general control over all roads in county); We have no doubt that a 

county is generally authorized to employ counsel to represent it in connection with 

litigation pertaining to county roads. Cf: Burleson County v. Giesemchlag 354 

S.W.2d 418, 420 (Ten Civ. App.-Houston 1%2, no writ) (commissioners court 

authorized to employ an attorney to prosecute condemnation suit); Galverton 

Gnu@ v. Gresham, 220 S.W. 560, 562 flex. Civ. App.-Galveston 1920, writ refd) 

(county’s authority to employ an attorney to assist in sea wall project necessarily 

implied from general authority to construct sea wall). Furthermore, we believe the 

county may use. public funds to prosecute road litigation protecting private rights 

where the commissioners court determines that the litigation setves a public 

purpose. Cf. Young v. City of Houston, 756 S.W.2d 813 (Tex. App.-Houston [lst 

Dist.] 1988, writ denied) (city may use public funds to prosecute violators of private 

deed restrictions where doing so would serve.public purpose of regulating land use). 

We conclude that a county may not reimburse a private party for litigation 

expenses unless the litigation serves a public purpose and the governmental body 

actually employs the attorney. When a county employs an attorney, the county 

receives consideration, ic, legal services, in return for attorneys’ fees. In addition, 

the county’s contract with the attorney supplies the requisite control regardless of 

the outcome of the suit. See, e.g., Attorney General Gpinions JM-824, JM-755 

(1987); MW-373 (1981). This is not the case, however, in circumstances such as you 

describe where a private party, rather than the county, actually employs the 

attorney. In the situation you describe, the attorney employed by the private 

landowners undoubtedly performed legal services in return for attorneys’ fees, but 

that consideration went to the private individuals who employed the attorney, not to 

the county. Nor was the attorney subject to the control of the county during the 

p. 689 
Honorable Richard B. Townsend - Page 3 (DM-133) 

progress of the lawsuit. Under these circumstances, even if the litigation served a 

public purpose, reimbursement of the private landowners’ attorneys’ fees would be 

an unconstitutional grant of public funds to private individuals, and is therefore 

prohibited under article III, section 52 of the Texas Constitutional Therefore, we 

conclude that a county is prohibited from reimbursing the private landowners for 

attorneys’ fees in the situation you describe. 

SUMMARY 

Article III, section 52 of the Texas Constitution prohibits the 

Morris County Commissioners Court from reimbursing private 

landowners for attorneys’ fees they incurred in a right-of-way 

action against another landowner. 

DAN MORALES 

Attorney General of Texas 

WILL PRYOR 

First Assistant Attorney General 

MARY KELLER 

Deputy Assistant Attorney General 

RENEAHICKS 

Special Assistant Attorney General 

MADELEINE B. JOHNSON 

Chair, Gpinion Committee 

Prepared by Mary R. Crouter 

Assistant Attorney General 

?iee dso Attorney General Opinion DM-107 (1992) at 4 (“we are not aware of any other 

authority for the. proposition that a governmental entity may reimburse a public ofIicial or employee 

[for Iegd expenses] after the person has incurred I@ expenses’) (citing Letter Opinion No. W-93 

(19!m)) (emphasis in oligjd). 

p. 690