Honorable John A. Menefee 

County Attorney 

Upton County 

Rankin, Texas 

Opinion No. ~~-1464 

Re: The liability of Upton 

County for. payment of fees 

to private attorneys for 

services rendered 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 services performed for individual Commissioners in view of the prohibittons contained in 

Article 2340 of Vornonts Civil Statutes Andy Article 373 of the 

Penal Code. The text of these statutes follows a summary of the 

fact situation. .' 

A series of,actions began on August 24, 1959, with the 

filing of suit in the district court by a citizen to enjoin the 

County Commissioners from using county equipment to perform certain 

work for private Individuals on' private property. The defendants 

named were Upton County, its four County Commissioners and the 

County Judge. 

On January 19, 1961, the court entered an agreed judgment to the effect that only Upton, County Itself should be enjoined but none of the Commissioners personally, and the judgment 

dismissed the action as to them. A Writ of Perpetual Injunction 

was ordered restraining and enjoining Upton County, its agents, 

servants, officers and employees, from performing the prohibited 

actions.- 

Subsequently, plaintiff filed 

and this was followed by a hearing. By 

1962, the Court concluded that the acts 

violation of the permanent injunction. 

Upton County, the County Comm~salonersl 

an affidavit of contempt 

order dated February 19, 

complained of were a 

It was decreed "that 

Court and the official 

members thereof, each and all" be found.gullty of contempt, and 

further sentenced two Commissioners to jail for specified periods, 

"whereupon," you state, "the Commissioners, and/or Upton County 

employed a firm of attorneys to represent Upton County." The 

attorneys apparently represented Upton County and the Commissioners 

in the contempt hearing. Thereafter, the attorneys represented 

only two Commissioners In an original habeas corpus proceeding in 
. 

Hon. John A. Menefee, page 2 (wW-1464) 

the Supreme Court of Texas, the same being reported in 357 

S.W.2d 740. 

Article 2340, Vernon's Civil Statutes, "Oath and 

Bond," under the general section on Commlssloners Courts is 

a8 follows : 

"Before entering 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 contract with, 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 approved by the oounty judge in the sum of 

three thousand dollars, 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 Illegally paid 

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 

lawful purposes.' 

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 shall become In any manner pecuniarily Interested lh any contracts made by such 

county, city or town, through Its agents or otherwise, for the construction or repair of any bridge, 

road, street, alley or house or any other work undertaken by such county, city or town, or shall become 

interested In any bid or proposal for such work or 

in the purchase or sale of anything made for or on 

account of such county, city or town, or who shall 

contract for or receive any money or property, or 

the representative of either, or any emolument or 

advantage whatsoever In consideration of such bid, 

proposal, contract, purchase or sale, he shall be 

fined not less than fifty nor more than five hundred dollars." 

It is apparent that in the instant proceedings arising 

in Upton County, the services performed by these attorneys were 
Hon. John A. Menefee, page 3 (wW-1464) 

partly in behalf of Upton County and the Commissioners, and 

partly in behalf of the Commissioners only. The attorneys have 

now billed Upton County for legal services in representing 

Upton County and the, County Commlssloners In the contempt hearing 

and the habeas corpus proceedings. 

Two closely related principles 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 county business. Some of the ,holdlngs describe the services 

permitted as where the county, as a whole, is Interested and affected. 

General's Onlnions Nos. o-1440, O-4955, an: V-232. This i~%~~y 

National Bank Adams v'+ us In v. Presidio County 26 S.W. 775; 

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 commissioners or the County Judge as defendants, and 

not the county per ,s,e, as long as it concerns proper county buslness. City National Rank v. Presidio County, supra, Attorney General's Opinion No. O-1440 (copy attached). 

The second principle, 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 statute being similar to Article 2340. The Court 

said at page 1174: - 

I8 . .constitutional, statutory and 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 attorneys or others for 

services rendered In behalf of such commissioners 

in defending them against prosecutions 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 situation wherein Upton 

County through its Commissioners 1 Court properly employed the 
Hon. John A. Menefee, page 4 (WW-1464) 

attorneys to represent the County and Its Commlssloners~ Court 

beginning Immediately after the filing of the plalntlffts affldavit charging violation of the court's Injunction and 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 Individually or In 

their official capacity, after this date. 

It 1s Indicated In prior opinions of this Department 

that the contract between the County and the attorneys is enforceable, however, as to that portion of the fees attributable 

to services rendered for proper county business, even though 

services were rendered for Improper matters at the same or dlfferent times. This Is approved In Opinion No. V-232, supra, 

(copy attached). 

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 contempt hearing and habeas corpus 

proceedings show such personal Interest in the 

contract for attorneys fees that would 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 that he is subsequently determined so, cannot have 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 the business 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 of Article 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 commlssloner who Is charged 

with violating a district court judgment enjoining a 

county, Its commlssloners court and the official members 
Hon. John A. Menefee, page 5 (~~-1464) 

thereof from performing acts which are not proper 

county business. 

Where an attorney Is employed by the county 

to perform proper legal services, as where the 

county as a whole Is Interested and affected, and 

at the same time to represent an 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