Honorable JohnA. Menefee

County Attorney Upton County Rankin, Texas OpinionNo. ~~-1464

Re: The liabilityof Upton County for.

payment of fees to private attorneys for servicesrendered In behalf of the County and two County Commissioners In contempt Dear Mr. Menefee: and habeas corpus proceedings.

Your request for this opinion raises a question as to whether the County may pay forlegal servicesperformed for individual Commissioners in view of the prohibittons contained in Article 2340 of Vornonts Civil StatutesAndy Article 373of the Penal Code. The text of these statutes follows a summary of the fact situation. .'

A series of,actionsbegan on August 24, 1959,with the filing of suit in the district courtby a citizen to enjoin the County Commissioners from using county equipment to perform certain work for private Individualson' private property. The defendants named were Upton County, its four County Commissionersand the County Judge.

On January 19, 1961, the court entered an agreed judgment to the effect that only Upton, County Itself shouldbe enjoinedbut none of the Commissionerspersonally,and the judgment dismissed the action as to them. A Writ of Perpetual Injunction
was ordered restrainingand enjoiningUpton County, its agents, servants,officersand employees, from performing the prohibited actions.- Subsequently,plaintiff filed and thiswas followed by a hearing. By 1962, the Court concluded that the acts violation of the permanent injunction. Upton County, the County Comm~salonerslan affidavit of contempt order datedFebruary 19, complained of were a It was decreed "that Court and the official members thereof, each and all" be found.gulltyof contempt,and further sentenced two Commissionersto jail for specifiedperiods, "whereupon,"you state, "theCommissioners,and/or Upton County employed a firm of attorneys to representUpton County." The attorneys apparently representedUpton County and the Commissioners in the contempthearing. Thereafter, the attorneys represented only two Commissioners In an originalhabeas corpus proceeding in.

Hon. JohnA. Menefee, page 2 (wW-1464)

the Supreme Court of Texas, the samebeing reported in 357 S.W.2d 740.

Article 2340,Vernon's Civil Statutes, "Oath and Bond," under the general section on CommlsslonersCourts is a8 follows:

"Beforeentering upon the duties of their office, the county judge and each commissioner shall take the official oath, and shall also take
a written oath that he will not be directly or Indirectly Interested In any contractwith, or claim against, the county In which he resides, except such warrants a8 may Issue to him as fees of office. Each commissioner shall execute a bond to be approvedby the oounty judge in the sum of three thousanddollars, payable to the county treasurer, conditioned for the faithful performance of the duties of his office,, that he will pay over to his county all moneys Illegallypaid to him out of county funds, as voluntary payments or otherwise,and that he will not vote or give his consent to pay out county funds except for lawfulpurposes.'
Article 373,_Vernonls Penal Code, entitled "County or city officer interested in contracts," is as follows:

"If any officer of any county, or of any city or town shallbecome In any manner pecuniarily Interested lh any contractsmade by such county, city or town, through Its agents or otherwise, for the constructionor repair of any bridge, road, street,alley or house or any otherwork undertakenby such county, city or town, or shallbecome interested In any bid or proposal for suchwork or in the purchase or sale of anythingmade for or on account of such county, city or town, or who shall contract for or receive any money or property, or the representativeof either, or any emolumentor advantagewhatsoever In considerationof suchbid, proposal, contract,purchase or sale,he shallbe fined not less than fifty nor more than five hundred dollars."

It is apparent that in the instantproceedings arising in Upton County, the servicesperformedby these attorneyswereHon. JohnA. Menefee, page 3 (wW-1464)

partly in behalf of Upton County and the Commissioners,and partly in behalf of the Commissionersonly. The attorneyshave
now billed Upton County for legal services in representing Upton County and the, County Commlssloners In the contempthearing and the habeas corpusproceedings.

Two closely relatedprinciples of law govern the right of a county to pay these fees. The courts and this office have many times upheld the power and authority of the county to employ counsel to represent the county in matters that directly concern the countybusiness. Some of the ,holdlngs describe the services permitted as where the county, as a whole, is Interested and affected.
General's OnlnionsNos. o-1440, O-4955, an: V-232. This i~%~~y NationalBank us In v. PresidioCounty 26 S.W. 775;

Adams v'+Sea ler 112 Tex. 583, 250 S.W. 413; Cit -3

moreover, even though the plaintiff-in-a suit names only one or
. more of the commissionersor the County Judge as defendants,and not the countyper ,s,e, as long as it concernsproper countybuslness. City NationalRank v. PresidioCounty, supra,Attorney General's OpinionNo. O-1440 (copyattached).

The secondprinciple,however, rules out the payment of attornevs' fees for services in behalf of individual commissioners If in violation of the above statute. The decision in State v. Averlll, 110 S.W.2d 1173 (Civ.App..l937,er~ror ref.), pertains to city commissioners,also controlled, by Article 373 of the Penal Code and by Article 988, Vernon’s Civil Statutes, the latter statutebeing similar toArticle 2340. The Court

- said at page 1174:

I8

. .constitutional,statutoryand charter provisions upon the subject condemn as unlawful the acts of the members of a city commission In binding the clty,.by ordinance and contract, to pay out public funds,to attorneysor others for services rendered In behalf of such commissioners in defending them againstprosecutions for of-, fenses charged against them, either In their private or official capacity, in the courts of the land. Const. art. 1, P. 3; article 3, PP. 52, 53; article 988, R.S. 1925; article 373, P. C. 1925; sections 59, 65, 66, Charter City of Del Rio."

We believe the facts present a situationwherein Upton County through its Commissioners1Court properly employed theHon. JohnA. Menefee, page 4 (WW-1464)

attorneys to represent the County and Its Commlssloners~Court beginning Immediatelyafter the filing of theplalntlffts affldavit chargingviolation of the court's Injunctionand through the judgment and order of February 19, 1962. However, It would have been Improper for the county to employ attorneys to represent the lndlvidual Commlssloners,either Individuallyor In their official capacity, after this date.

It 1s Indicated In prior opinions of this Department that the contractbetween the County and the attorneys is enforceable,however, as to that portion of the fees attributable to services rendered for proper countybusiness, even though serviceswere rendered for Impropermatters at the same or dlfferent times. This Is approved In OpinionNo.V-232, supra, (copyattached).

It Is a question of fact as to the division of the total claimed fee between proper and improper services.

We think the foregoing answers the general question raised by your request,but there remains to answer a more specific query which Is:

"Does the fact that the County Commissioners may have to serve jail time or pay a fine as a result of the contempthearing and habeas corpus proceedings show such personal Interest in the contract for attorneys fees thatwould prohibit Upton County from paying the claim of said attorneys?"

Here the end cannot justify the means. Whether the commissioner Is right orthinks he Is right,, or thathe is subsequently determined so, cannothave any effect on the propriety of a county employing attorneys to represent the commissioner individually,either In his personal or In his official capacity, where the matter Involved does not affect thebusiness of the county as a whole. City National Hank of Austin v. Presidio County, su~ra; Attorney General's Opinion 'No.o-1440.

SUMMARY

It Is a violation ofArticle 2340,Vernon's Civil Statutes, and of Article 373, Vernon's Penal Code, for a county commlssioners court to pay a fee to an attorney for representing an individual commlsslonerwho Is charged with violating a district court judgment enjoining a county, Its commlssloners court and the officialmembersHon. John A. Menefee, page 5 (~~-1464)

thereof from performing acts which are not proper county business.

Where an attorney Is employedby the county to perform proper legal services,as where the county as a whole Is Interested and affected, and at the same time to representan individual commlsstoner for a matter not directly concerning county business, payment of the attorney's fee may be enforced only as to that portion thereof attributable to proper county business. Sincerely,

WILL WILSON Attornev General of Texas 

# -“- .- Scranton Jones Assistant

SJ:mkh

APPROVED: OPINION COMMITTEE

W. V. Geppert, Chairman Frank Booth Paul Phy L. P. Lollar

REVIEWED FOR THE ATTORNEY GENERAL BY: Leonard Passmore