# TE-XEATTORNEY GI~CNEIRRAB~ OF TElxAs
AUSTIN. 

# TRKAS787ll

March 4, 1975

The Honorable John F. Perry County Attorney Hopkins County Courthouse Sulphur Springs, Texas 75482 The Honorable Henry Wade District Attorney Sixth FloorRecords ,Bldg. ” ” Dallas. ~,Texas ,75202 Opinion No. H- 544
Re: Liability ofa county for the expenses ofa court of inquiry.

z. Gentlemen:

., Each of.youhas requested our opinion onquestions concerning expenses growing out ofa court ofinquiry.

Mr.. Perry,asks: .~.. Is a county obligated to pay reasonable and

necessary’expenses incurr.ed in pieparation for a.court of,inquiry?’ *~

._

Is the fee to the Court’Reporter of’$L50 per page for.an original alld a copy a reasonable fee, and afee which. the District Judge,within his discretion may oidkr the County Commissioners Court to pay? Must Dallas County pay for the services of a special prosecutor appointed by thejudge of **a court**  ofinquiry to conduct the court of inquiry?

p: 2443The Honorable John F. Perry

The Honorable Henry Wade page 2 (H- 544)

All ofthese questions relate to the authority ofa district judge to obligate the county to pay expenses growing **out** ofa **court** ofinquiry. We note that a county judge is also authorized to conduct **courts** ofinquiry, and thus the answer is applicable to either of these officials conducting a court of inquiry in his capacity as a magistrate. Code Crim. Proc. art. 52.01.

The rule is that the commissioners court is the general business and contracting agency ofthe county, and it alone has authority to make contracts binding onthe county, unless otherwise provided .- by **statute.** Anderson v. Wood, 152 S.W. 2d 1084, 1085 (Tex. 1941). In this case, the Texas Supreme Court held that the sheriff has no authority tohire or fire necessary courthouse andjail employees, reversing a **court** ofcivil appeals’ determination that the duty tohave charge and control of courthouse andjail includes the right to employ necessary employees to assist him.

The following cases illustrate the application of the rule: Willacy Countv v. Valley Baptist Hospital, 29 S.W. 2d 456 (Tex. Civ. App. --San Antonio 1930, no writ hist.) (county judge could not authorize employment of other than county health officer for injured person without authority from commissioners court); Collin Countv v. Schultz. 243 S.W. 609 (Tex. Civ. App. --Texarkanz~l922. no writ hist.) (county school trustees **without** authority $,oobligate county to pay,for’school redistricting maps. even though under’duty to redistrict); Sparks v. Kaufman Countv. ,194 S.

### W. 605 (Tex. Civ. App. --Dallas 1917, writ. ref’d) (county clerk without authority to obligate county to pay for typewriter or stamps. even though necessaiy~ to conduct office); American Disinfecting Co. v. Freestone

193~s. W. ‘440 (Tex. Civ. App. --Dallas 1917, no writ hist.) County, (sheriff has no authority to obligate’county to pay for disinfectant used in discharging duties to keep courthouse andjail sanitary); Germo Mfg. Co. v. Coleman County, 184 S.W.- 1063 (Tex. Civ. App. --Austin 1916. no writ hist.) (sheriff, no authority tom obligate for disinfectant); and Fayette County v. Krause, 73 S.W. 51 (Tex. Civ. App.-1903,writ ref’d) (individual commissioners may not obligate county on contract).

p. 2444The Honorable John F. Perry The Honorabie Henry Wade page 3 (H-544)

Inlight ofthis rule and these authorities, the answers to your questions depend onwhether statutory authority exists for thejudge conducting the court ofinquiry to obligate the county to pay the expenses inques~tion.

Chapter 52 ofthe Code of Criminal Procedure authorizes the conduct of courts ofinquiry. The only provision relating to expenses is article 52.09, which states: All costs incurred in conducting a Court of Inquiry shall be borne by the county in which said Court ofInquiry is conducted; provided, however, that where the Attorney General of Texas has submitted a request in writing to thejudge for the holding of such Court of Inquiry, then and in that event the costs shall be borne by the State of Texas and shall be taxed to the attorney general and paid. in the same [sic] and from tbe same funds as other court costs. The word “costs” is not defined in the Code of Criminal Procedure, but it is used in other provisions ofthe Code to refer to statutor~ily prescribed fees which may be taxed to a convicted defendant or the State such as those allowed a.peace officer for summoning witnesses and executing criminal process. See ecg., Code Grim. Proc. art. 53.01, et seq., and Code Crim. Proc.. arts 1001c1081. The reference in article 52.09 to the obligation of the State to pay costs of courts ofinquiry initiated by the Attorney General

“from the same funds as other court; costs” indicates that the Legislature used the term “costs” in this limited sense.

Thus, it is clear that a county is obligated to pay the “costs, ” i. e.,, statutorily prescribed fees incurred in conducting a court ofinquiry.

Article 52.07 ofthe Code of Criminal Procedure requires that a transcript be made but does not specify afee for such service:

All evidence taken at a Court ofInquiry shall be transcribed by the court reporter and proceedings shall be open to the public.

p. 2445The Honorable John F. Perry

The Honorable Henry Wade page 4 (H-544)

Article 11.07 of the Code of Criminal Procedure requires a **court** reporter to prepare a statement offacts in a hearing on a writ ofhabeas corpus but,the statute fails to provide for payment in the case ofan indigent petitioner. InAttorney General Opinion H-69 (1973) we held that the court reporter is entitled to be compensated by the county or state for preparing the transcript.

This office has held on several occasions that the cost ofpreparing a transcript may be charged as an expense against the county by the district or county attorney as a reasonable expense necessary in the proper and legal conduct ofhis office under article 3899, section (b), V. T. C.S, Ithas been so held in connection with transcripts ofan examining trial, Attorney General,Gpinions, M-303 0968) and V-976 (1949); at an inquest, Attorney General Opinion V-538 (1948); before a grand jury, Attorney General Opinion WW-1334 (1962); and ofa tape recording of a radio program, Attorney General Opinion WW-874 (1960). As was stated in Attorney General’Opinion ,WW-1334 (1962): “Certainly a diligent District Attorney would want to preserve such testimony for his own use in the event of trial. ”
Inrequiring a transcription ofthe evidence in a court ofinquiry to, be made, the .Legislatureapparently presumed that it would begof some value to the appropriate eprosecuting,officials, and thus of benefit to-the’, county. Inour wnion the Legislature -intended,.the term, “costs” as used 8 irrdrticle 52.09 &include,.the ‘expense ofpreparing the transcript,which

‘is ~specifically~requiied to be~madebyarticle- 52.07. . ..I~
Mr. Wade asks whether-a rate:of $1.50.,per page foran original and copy ofa transcript is a reasonable fee-which the district judge may order the commissioners court to pay.

The reasonableness ofa particular rate is a question offact which we must decline to.answer. However, a similar question was considered in Attorney General Opinion C-683 (1966). The opinion held that in the absence ofa statutory provision setting forth the amount to be paid for atranscript required to be.prepared,at county expense, a reasonable amount should be

p. 2446The Honorable John F. Perry The Honorable Henry Wade page 5 (H- 544)

paid. See also Attorney General Opinion H-69 (1973); M-303 (1968); -- M-248 (1968); C-785 (1966); WW-874 (1960) and V-976 (1949).

Mr. Wade’s question refers to an order of the district court to the county commissioners court to pay the court reporter. We observe that the capacity in which thejudge acted was not as district judge, but magistrate, and the only orders authorized to be issued in courts of inquiry are subpoenas and arrest warrants. See In re McClelland, 260 F. Supp. 182 (S.D. Tex. 1966); State ex rel. Richardson v. Coleman County, 56 P. 2d 1023 (Wash. 1936); State v. Major, 192 P. 618 (Mont. 1920). Cf. Inre Mercer County Probation Department, 263 A. 2d 168 (.N.J.Super?X. rApp. Div. 1970).

The magistrate holding the court ofinquiry is responsible for the proceedings, and ,heis the appropriate official to certify~what costs were incurred in conducting the court ofinquiry~and what reasonable amount should begpaid for-the transcripts. The law presumes that apublic officer has exercised his discretion in accordance with the law until the contrary is shown. 47 Tex. Jur. 2d Public, Officers §118. Ifthe magistrate’s determination as, to the reasonable-value of the transcript.is disputed, the burden rests with the Commissioners Court to show thatthe determination is so unreasonable, arbitrary **or** capricious as toamount to.an abuse.of, discretion. Commissioners Court of Lubbock County v. Martin, 471 S.W.. 2d ,100, 108 (Tex. Civ. App. --Amarillo 1971, writ ref’d n.I. e.).

d’ Another expenses about which each of.you inquire is compensation for’,a, private attorney toassist in the conduct of the court ofinquiry.

There is no specific authorization for the appointment ofan attorney to’participate in a court ofinquiry. Tbere.is no express authorization for any attorney to represent the state in a court ofinquiry, as there is in an examining trial [Code Grim. Proc. art. 16.061; before the grand jury [art. 20.031; in a habeas corpus proceeding [arts. 11.07, 11.391; and an inquest upon a dead body [art. 49.121; or in a fire inquest [art. 50.021.

p. 2447The Honorable John F. Perry

The Honorable Henry Wade page 6 (H- 544)

However, ithas been held that:

Ithas always been the principal duty of the district and county amrneys to investigate and prosecute the violation ‘ofall criminal laws, including the election laws, and these duties cannot be taken away from them ,bythe Legislature and given to others. (Emphasis added) Shepperd v. Alaniz, 303 S.W. 2d 846, 850 (Tex. Civ. App. --San Antonio 1957, no writ hist. ). As a matter ofpractice, it appears that courts ofinquiry are sometimes held upon the initiative ofthe district attorney and pursued byhim. See McClelland~v> Briscoe,~ ,359 S.W. 2d 635 (Tex. Civ. App. --Houston 1962, writ.ref’d n.r. e.); Ex **parte** Jimenez. 317 S.W. 2d 189 (Tex. 1958).

Also, the’exception inarticle 52.09 providing for payment ofcosts by the State “where. the Attorney General of Texas has submitted-a request inwriting to thejudge for the holding of such Court of Inquiry” indicates ~thatthe’legislature anticipated that courts~.of inquiry could be initiated by:an attorney representing the state.and, inferentially, that inthe usual situationit would be at the.instance ofthe district or counwattorney rather than the~attorney general.

‘~<_ ” In regard<0 the exclusiveness of the authority of.the county attorney, district ‘attorney, %nd,attotney general: to~,represent the,state,.:.see Garcia v. LaughliniiQ85:S; W. 2d~191~(Tex::.~Sup;-r1955);~Staples v;,rState exrel.~ Kin& 245 S.W. 639 (Tex. Sup. 1922); Maud v. Terrell. 200 S.W. 374 (Tex. Sup. ” 1918);: -Bridy.~v.

.‘Brooks, 89% W.:g1052 (Tex. Sup.~~l905); Harris County v. Stewart, 41S.W. 650 (Tex. Sup. 1897).

‘Since there is n0

_s.ta.tu t0ry ~‘, authorization ‘forkthe appointment and compensation ofa private attorney to represent the state in a court.of inquiry, .and sinc~ethe above authorities indicate that it is within the general duty of the county attorney and district attorney to investigate the violation of criminal la~ws, it is our opinion that ifthe magistrate conducting the court

p. 2448The Honorable John F. Perry The Honorable Henry Wade page 7 (H-544)

of inquiry desires an attorney to represent the state in the inquiry, the county or district attorney should be called upon to perform that **duty.** Ifthe county or district attorney is disqualified, absent, or otherwise unable to perform the duties ofhis office, an attorney pro tern may be appointed under article 2.07, Code of Criminal Procedure, and compensated as authorized under that article. See Attorney General Opinion H-324 (1974) (authority of district court loap=t attorney pro tern to assist grand jury). Mr. Perry asks generally about reasonable and necessary expenses incurred in preparation for a court ofinquiry. Inthe absence of specific expenses we cannot answer the question definitively. However, we observe that the only actions ajudge acting as magistrate is authorized to take in a court ofinquiry are to summon witnesses, examine them, have their testimony transcribed, and issue a warrant ofarrest. Articles 52.01, 52.07 and 52.08, Code Grim. Proc. InAttorney General Opinion H-439 (1974), we held that a grand jury has no independent authority tohire an investigator. We believe the same limitation would apply to a court of inquiry.
Mr. Perry asks an additional question growing out of the following fact situation.

The district judge scheduled a court ofinquiry to inquire into the conduct of the district attorney’s office. Prior to the date, set for the **court** ofinquiry, the district attorney filed ,amotion requesting the district judge to disqualify himself on the grounds ofpersonal bias. The judge overruled the motion. The district attorney, inhis individual capacity, petitioned the’federal district court to enjoin the district judge from proceeding with the court of inquiry. Upon ahearing, the federal district court issued an order enjoining the district judge from proceeding with the court ofinquiry. The order was stayed and appealed to the United States **Court** ofAppeal for the Fifth Circuit. The district judge secured attorneys to represent him in the federal proceedings, including the appeal ofthe order of the federal district court. **The** coinmissioners **court** has withheld its authorization to pay legal expenses pending this inquiry.

p. 2449The Honorable John F. Perry

The Honorable Henry Wade page 8 (H- 544)

You ask whether the county is obligated to pay reasonable and necessary expenses ofattorneys for the district judge at the federal hearing and onthe appeal of the order.

We find no statutory authority for any public official to obligate a county to pay a private attorney to defend any suit brought against him in his individual capacity in a federal court. We do not believe that such expenses are within the meaning ofthe term “costs” as used in article 52.09 ofthe Code of Criminal Procedure.

Each ,of you presented your questions in terms ofajudge’s authority to obligate a county tospayexpenses growing out ofa,court of inquiry, andnot whether the commissioners court may. in its discretion, authorize or ratify the payment of such expenses.

Inthis regar.d a.county’s interest in good law enforcement has been considered sufficient justification to authorize a commissioners court’s expenditures offunds for a reporter to transcribe grand jury testimony. Rodgers v. County of Taylor, 368 S.W. 2d 794, 797 (Tex. Civ. APP. --Eastland 1963, writ ref’d n.r. e.) and this office has held that a commissioners court has authority to employ an attorney to assist a grand jury. Attorney General Opinion M-823 ( 1971). Thus, while a county may not be obligated to pay certain expenses incurred in connection with a court

‘ofinquiry, we believe that~the commissioners court may authorize or ratify reasonable/and necessary expenses in connection.with such a proceeding, ifit determines that,itis.in ~theinterest of.the county to do so.

Among,the expenses which the county.may authorize or ratify are ,the costs ofhiring an attorney. The.authority ofa county commissioners court to employ counsel to represent county interests in suits, even when nominally against individuals, has been recognized. City National Bank ofAustin v. Presidio County,- 26S. W. 775 (Tex. Civ. App. 1894. no writ); Guerra v. Weatherly, 291 S.W. 2d 493 (Tex. Civ. App. --Waco 1956. no writ): Attorney General Opinion M-726 (1970). See Chandler v. Saenz,~ 315S. W. 2d 87, 90 (Tex. Civ. App. --San Antoniox8, writ ref’d n.r. e.); City of Corsicana v. Babb, 290 S.W. 736, 737 (Tex. Comm.

p. 2450The Honorable John F. Perry

The Honorable Henry Wade page 9 (H- 544)

App. 1927, jdgmt adopted). These cases are in accord with the general rule in the United States that a public body, acting in good faith, may indemnify public officials for legal expenses incurred in suits brought against them for acts committed in discharge oftheir duties. Annot., 130A. L. R. 736 (1941).

Conversely, in any case where the public official acted outside of or beyond the scope ofhis legal powers, a public body has no authority to pay such legal expenses. Attorney General Letter Advisory No. 24 (1973).
SUMMARY
Ina court ofinquiry, a county is obligated to pay those costs for which afee is expressly provided by law and the reasonable expense ofactivities expressly required to conduct the proceeding, including the original transcription ofthe statement offacts taken at’the court of inquiry. Code ‘Grim. Broc. art. 52.07, 52.09.

. . The judge holding the court ofinquiry may certify what reasonable amount should be paid ,the court reporter fqr preparing the transcription.
A county is obligated to pay the compensation ofan attorney pro tern to assist in the conduct of the inquiry when the.appointment is made in accordance with article 2.07 ofthe Code of Criminal Procedure.
A county commissioners court may authorize or ratify expenses incurred in the conduct ofa court of

p. 2451The Honorable John F. Perry

The Honorable Henry Wade page 10 (H-544)

inquiry which are in the interest ofthe county, including the expense oflegal counsel to defend suits brought against thejudge conducting the inquiry for acts committed in the discharge of his duties and within the scope of his authority. Very truly yours,

APPROVED:
-

DAVID M. KENDALL, First Assistant

C. ;RGBERT%EATH, Chairman Opinion Cornmittqe./ ’ lg

p. 2452