TE-XE ATTORNEY GI~CNEIRRAB~ 

OF TElxAs 

AUSTIN. TRKAS 787ll 

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 of a county for 

the expenses of a court of 

inquiry. 

z. 

Gentlemen: 

., Each of .you has requested our opinion on questions concerning 

expenses growing out of a court of inquiry. 

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 a fee 

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 the judge of a court of inquiry 

to conduct the court of inquiry? 

p: 2443 
The Honorable John F. Perry 

The Honorable Henry Wade page 2 (H- 544) 

All of these questions relate to the authority of a district judge to 

obligate the county to pay expenses growing out of a court of inquiry. We 

note that a county judge is also authorized to conduct courts of inquiry, 

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 of the county, and it alone has authority to make 

contracts binding on the 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 

to hire or fire necessary courthouse and jail employees, reversing a 

court of civil appeals’ determination that the duty to have charge and control 

of courthouse and jail 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 $,o obligate 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 

County, 193~s. W. ‘440 (Tex. Civ. App. --Dallas 1917, no writ hist.) 

(sheriff has no authority to obligate’county to pay for disinfectant used in 

discharging duties to keep courthouse and jail 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. 2444 
The Honorable John F. Perry 

The Honorabie Henry Wade page 3 (H-544) 

In light of this rule and these authorities, the answers to your questions 

depend onwhether statutory authority exists for the judge conducting 

the court of inquiry to obligate the county to pay the expenses in ques~tion. 

Chapter 52 of the Code of Criminal Procedure authorizes the conduct 

of courts of inquiry. 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 of Inquiry is conducted; provided, however, 

that where the Attorney General of Texas has 

submitted a request in writing to the judge 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 of the 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 ec g., 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 of inquiry 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 of inquiry. 

Article 52.07 of the Code of Criminal Procedure requires that a 

transcript be made but does not specify a fee for such service: 

All evidence taken at a Court of Inquiry shall be 

transcribed by the court reporter and proceedings 

shall be open to the public. 

p. 2445 
The 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 of facts in a hearing on a writ of habeas 

corpus but,the statute fails to provide for payment in the case of an 

indigent petitioner. In Attorney 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 of preparing 

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 of his office under article 3899, section (b), V. T. C. S, 

It has been so held in connection with transcripts of an 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 of a 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. ” 

In requiring a transcription of the evidence in a court of inquiry 

to, be made, the .Legislatureapparently presumed that it would beg of some 

value to the appropriate eprosecuting,officials, and thus of benefit to -the’, 

county. In our wnion the Legislature -intended,.the term, “costs” as used 8 

irrdrticle 52.09 &include,.the ‘expense of preparing the transcript,which 

‘is ~specifically~requiied to be ~made by article- 52.07. . ..I~ 

Mr. Wade asks whether-a rate:of $1.50.,per page foran original 

and copy of a transcript is a reasonable fee-which the district judge may 

order the commissioners court to pay. 

The reasonableness of a particular rate is a question of fact 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 

of a statutory provision setting forth the amount to be paid for a transcript 

required to be.prepared,at county expense, a reasonable amount should be 

p. 2446 
The 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 the judge 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. 

In re Mercer County Probation Department, 263 A. 2d 168 (.N. J. Super?X. rApp. 

Div. 1970). 

The magistrate holding the court of inquiry is responsible for the 

proceedings, and ,he is the appropriate official to certify~what costs were 

incurred in conducting the court of inquiry~and what reasonable amount 

should beg paid for-the transcripts. The law presumes that a public officer 

has exercised his discretion in accordance with the law until the contrary 

is shown. 47 Tex. Jur. 2d Public, Officers § 118. If the 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 to amount 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 to assist in the conduct of the court of inquiry. 

There is no specific authorization for the appointment of an attorney 

to’participate in a court of inquiry. Tbere.is no express authorization for 

any attorney to represent the state in a court of inquiry, 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. 2447 
The Honorable John F. Perry 

The Honorable Henry Wade page 6 (H- 544) 

However, it has been held that: 

It has always been the principal duty of the district 

and county amrneys to investigate and prosecute 

the violation ‘of all criminal laws, including the 

election laws, and these duties cannot be taken away 

from them ,by the 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 of practice, it appears that courts of inquiry are sometimes held upon the initiative of the district attorney and pursued by him. 

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 of costs 

by the State “where. the Attorney General of Texas has submitted-a request 

in writing to the judge for the holding of such Court of Inquiry” indicates 

~that the’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 of the 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, 41 S. W. 650 (Tex. Sup. 1897). 

‘Since there i s n 0 _ s.ta.tu t 0 ry ~‘, authorization ‘fork the appointment 

and compensation of a private attorney to represent the state in a court.of 

inquiry, .and sinc~e the 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 if the magistrate conducting the court 

p. 2448 
The 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. 

If the county or district attorney is disqualified, absent, or otherwise unable 

to perform the duties of his 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 lo ap=t attorney pro tern to assist grand 

jury). 

Mr. Perry asks generally about reasonable and necessary expenses 

incurred in preparation for a court of inquiry. In the absence of specific 

expenses we cannot answer the question definitively. However, we observe 

that the only actions a judge acting as magistrate is authorized to take in 

a court of inquiry are to summon witnesses, examine them, have their 

testimony transcribed, and issue a warrant of arrest. Articles 52.01, 

52.07 and 52.08, Code Grim. Proc. In Attorney General Opinion H-439 

(1974), we held that a grand jury has no independent authority to hire 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 of inquiry to inquire into the 

conduct of the district attorney’s office. Prior to the date, set for the court 

of inquiry, the district attorney filed ,a motion requesting the district judge 

to disqualify himself on the grounds of personal bias. The judge overruled 

the motion. The district attorney, in his individual capacity, petitioned 

the’federal district court to enjoin the district judge from proceeding with 

the court of inquiry. Upon a hearing, the federal district court issued an 

order enjoining the district judge from proceeding with the court of inquiry. 

The order was stayed and appealed to the United States Court of Appeal for 

the Fifth Circuit. The district judge secured attorneys to represent him in 

the federal proceedings, including the appeal of the order of the federal 

district court. The coinmissioners court has withheld its authorization to 

pay legal expenses pending this inquiry. 

p. 2449 
The 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 of attorneys for the district judge at the federal 

hearing and on the 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 of the term “costs” as used in article 

52.09 of the Code of Criminal Procedure. 

Each ,of you presented your questions in terms of a judge’s 

authority to obligate a county to spay expenses growing out of a ,court of 

inquiry, and not whether the commissioners court may. in its discretion, 

authorize or ratify the payment of such expenses. 

In this regar.d a .county’s interest in good law enforcement has 

been considered sufficient justification to authorize a commissioners 

court’s expenditures of funds 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 

‘of inquiry, we believe that~the commissioners court may authorize or 

ratify reasonable/and necessary expenses in connection.with such a proceeding, if it determines that ,it is.in ~the interest of.the county to do so. 

Among,the expenses which the county.may authorize or ratify are 

,the costs of hiring an attorney. The.authority of a county commissioners 

court to employ counsel to represent county interests in suits, even when 

nominally against individuals, has been recognized. City National Bank 

of Austin v. Presidio County,- 26 S. 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,~ 315 S. 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. 2450 
The 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 of their duties. Annot., 

130 A. L. R. 736 (1941). 

Conversely, in any case where the public official acted outside of 

or beyond the scope of his legal powers, a public body has no authority 

to pay such legal expenses. Attorney General Letter Advisory No. 24 

(1973). 

SUMMARY 

In a court of inquiry, a county is obligated to pay 

those costs for which a fee is expressly provided by 

law and the reasonable expense of activities expressly 

required to conduct the proceeding, including the 

original transcription of the statement of facts taken 

at’the court of inquiry. Code ‘Grim. Broc. art. 52.07, 

52.09. . . 

The judge holding the court of inquiry may certify 

what reasonable amount should be paid ,the court reporter 

fqr preparing the transcription. 

A county is obligated to pay the compensation of an 

attorney pro tern to assist in the conduct of the inquiry 

when the.appointment is made in accordance with 

article 2.07 of the Code of Criminal Procedure. 

A county commissioners court may authorize or 

ratify expenses incurred in the conduct of a court of 

p. 2451 
The Honorable John F. Perry 

The Honorable Henry Wade page 10 (H-544) 

inquiry which are in the interest of the county, 

including the expense of legal counsel to defend 

suits brought against the judge 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