DAN MORALES

ATTORNEY GENERAL 

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@eneral Mate of Eexaa June 29,1992

Honorable Richard B.Townsend County and District Attorney Morris County Courthouse 500Broadnax 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 askwhether 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 inthe circumstances you describe.’
Article III, section 52,provides inpertinent part: [Tjhe Legislature shall have no power to authorize any county
.. .ofthe 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 addresswhether itmayalso be prohibited under articleVIII,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 partof asettlement in asuit against the county.

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

Tex. Const. art. HI,052(a). The purpose ofthis provision ofthe Texas Constitution is to prevent “thegratuitous application offunds to private use.” Bmzoti Countyv. 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,38TEX.B.J.413(1975). While it isin the province ofthe governing body to ascertain whether there exists a public purpose whichjustifies 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. SeeTen Const. art. V, 0 18(b) (commissioners court to exercisejurisdiction over county business asprovided 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 isgenerally 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, webelieve 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. Youngv. CityofHouston, 756 S.W.2d 813 (Tex. App.-Houston [lst Dist.] 1988,writ denied) (city may use public funds to prosecute violators ofprivate deed restrictions where doing sowould serve.public purpose ofregulating 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 isnot the case, however, in circumstances such asyou 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. 689Honorable Richard B.Townsend - Page 3 (DM-133)

progress ofthe lawsuit. Under these circumstances, even if the litigation served a public purpose, reimbursement ofthe 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 52ofthe 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 ofTexas
WILL PRYOR First Assistant Attorney General
MARY KELLER Deputy Assistant Attorney General
RENEAHICKS Special Assistant Attorney General
MADELEINE B.JOHNSON Chair, Gpinion Committee Prepared byMary 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