676 

OFFICE OF THE ATTORNEY GENERAL OF TEXAS 

AUSTIN 

Honorable Yllllam R. Edvards 

county Judge 

upton county 

Rankln, Texes 

Doar Sir: 

: Wheth& the Camrnlabion~s~ 

/CourteSuptonCountyjlas 

/ 

th6'Rutho.rity to employ en 

'\ 

attorney to advise the Court 

apa the the fknmtg oSSiolals dur- 

~,ln&%he~absenoe o? the present 

'oounty 'oounty attorney, attorney, who is in the 

Your letterof January~l, 1945, requesting the oplnlnn 

of this Department stated therein, is in Dart, 

as Sollovs::-.~ ,' 

/<'. w&-~o have no County Attorney, Z'flnd it nesasaarg to ask for your opinion 

onbe Sollcwing matter and In order that you might 

understand vlll'go aomevhat into detail. The County 

Attorney of thisCounty vas lnduoted Into the Nllltary Servloe long about Nay OS 1944 and the County 

has baen 

Dollara.( r 

fing him his salary OS Ona Hundred Fifty 

150.00) a month sinoe that time, although 

It was ne&ssary to employ oounsel for advloe to the 

Court and the various ofiloers of the County. The 

present County Attorney vaa reeleoted for the ensuing term but is nov somewhere in Franoe or Rngland 

and he has Slled with the Comalssioners~ Court a 
Bon. Wllllam R. Bdwards, Page 2 

bond in oorreot form, exoept that it 18 rigned, 

hIa by 8n agent and tba oath of offioe ir alao 

I signet3 by the mm ageat. 

“QDBSTIOR 

"18 this bead a valid oru ml& 48 rbova 

ladloated and lo the oath of offlao mubrorlbed 

to w hIa agent valid? 

nDoea the Caamlaeloners~ Cmrt of Upton 

County have the right to employ an attornsf to 

advise the Court and the ofYloer6 during the clbsenoe OS tlao present County Attorney?’ 

Under the prwIslo~ of Artiole 4399, Vernon’s Annotated Civil Statutes, this Department 1s prohibited Srum rendering legal opinions to County Judges, but, ln view of the faot 

that you County is vithout the armloes of the County Attoraey 

st the present, ve feel it is appropriate to anmmr your queetlon. 

Artlole 16, Vernonla Annotated Civil Statutes, provldos 

that eaoh ofiloer in this State, vhether eleoted or appointed 

&all, before entering upon the duties OS hh office, take and 

aubsorlbe the oath.presorlbsd by Artlole 16, Seotlon 1 of the 

Constitution OS this Btatej and IS he shall be mqulrad by lav 

to give an offloial bond, raid oath shall be filed with said bond. 

Article 330, V. A. C. S., provides that sash County 

Attorney shall, besorb entering upon the dutloe of hle offLoe 

give bond, eta. 

Article 5998, V. A. C. B., provides that the offiolel 

bond of eaah ofiloer shall be exeouted by him vith tV0 or mom 

goad ati sufflolent sureties or solvent surety oompany authorized 

to do business in this State. 

Artlole 26, V. A. C. S., prwldes that all oaths, afSldavita or afflrmatlons may bo admlnlstorad and a oertifloate of 

the feat given, If without the United Ytates, before any notary 

nubllo, or any minister, oomlssloner or charge d*affalres of the 

bnited states, resident In and aooredlted to the country where the 

affidavit may be taken, or any consul general, oonsul, vice-oonsul, 
67s 

Honorable Wllllam R. Bdvard8, Page 3 

oommerolal agent, vloe-aomm8ralal agent, deputy oo~ul, or 

oonsuler agent of the United States, resident ia suoh oarby. 

Seotlon 1, Art1018 16 of the State Con8tltutioa, 

vld8s.the form OS oath m l fflnsatlon to be used. Artlole %; 

V. A. C. S,, provide8 for the maklq OS an aoknwlodgment or p&of 

OS an lnstruwnt of vrlting Sor lvaord befoa% oertaln offlolals, 

and would hsw no applloatlnn to the taking of an orsioial oath. 

We see no logal rea8on why the persoa vho tar cleated County Attorney, aould not exeaute hi8 oiflolal be& while on fiilitary 

servloe in a foreign oountry, and also tak8 and 8ub8orlb8 tb8 

osth presorlbed by the Constitution b8San any person authorized 

by Artlole 26 to admlnl8ter the sw. Tha bond ati oath of OSfloe filed by the County Attorney with th8 Canmls8ionera~ Court 

appears to be ln aorreat form, exorpt that th8 bond and oath of 

offloe are signed by an agent of the County Attorn8y. In viev 

of the foregoing 8tatute8 and the Constitution provision, it 

is our opinion that the County Attorney must l xeout8 the oath OS 

offla8 in the Sozm presorlbod by the Conntltutlon. Iielther the 

Constitution nor the Statute8 authorizes a pub110 offlolal to 

execute his cath OS oifloe by an agent; therefore, ve believe 

that the oath of offloe exeouted by an agent is invalid. With 

reierenoe to the validity of the bond ve are oonfronted vlth a 

more serious problem. Cenarally spsaklng, urdlnarlly a person 

may do by or through his agent what h8 aan do hlmeelf. We have 

failed to find any authority vhatsoever pertaining to the authority OS the pub110 oSflalal exeoutlng hi8 oSSlola1 bond by and 

through an agent. We oannot oategorloally say whether m not 

the bond a8 exeouted by the agent is valid or invalid. It is 

our oplnlon that the County Attorney should take and subsorlbe 

the oath presarlbed by Art1018 16, Seotlon 1 of th8 Constitution 

of this State before any persaa autharlted by A&lo18 26 to administer same. It vould b8 safer praotlae Sor the County Attorney 

to also exeoute his bond by signing it personally. 

We nw oonslder your question with r8ferenoe to the 

authority OS the Commissioners 1 Court OS your County to employ 

an attorney to advise the Court and the oounty offloials during 

the absenoe of the County Attorney. It Is stated in Texas Jurlsprudenoe, Vol. 11, P. 575: 

"The aommlssloners~ oourt has pwer to employ 

attorneys to assist the regularly oonstltuted ofifoers of the oounty lnthe proseoutlon of its alalms 
Eon. William R. EdVSl'dS, PSgS 4 

Slid SUitS, Snd t0 p1y fC@ ruoh 88l’ViO88 Out O? 

the oaunty fund8. It seams, hovever, that the 

commlssionerr~ ocurt does not h8va the pwor to 

deprive the ocunty attomey of his rightful authority ln this regmd. The employnmnt of aouase1 18 reatrlot8d to sp8aial a88ea vlxu-8 the *errvloea of SO attorney are r8qulr8d~ nor h88 the 

oaurt pweP to m8k8 an order vhloh vlllvwrant 

the pupobnt of oounty aaney to an attorney for 

seroloes neither r8qulred nar perSorm8d.’ (Adams 

0. Saagler, 250 3. W. 413; Qlbson Y* Davis, 236 

3. W. 2021 Terre1 Y. Greene, 1 5. Y. 631; t3rooms 

v, AtamOs County, 32 3. W. 1 88 1. 

Under the holdlng8 of the abwe maatloned octaes, it 

is apaarent that the Camlssloner8 ’ Court b88 the power and aut!zorlty to employ l ttorneps in the proseoutlon of its olalms and 

suits and pay for suoh servloer out of the general fundr OS the 

county whezle the aaunty, an a whole, is interested and effected 

by suoh proo8edings. Artlole 334, V. A. C. S., provldtsr 

"The dirtrlot and oounty attorneys, upan request, shell give Sn aplnloa ar sdvio8 in vriting 

to any oounty or preolnat ofSla8r OS their dlstrlot 

or oaunty, tauahing their offlol81 duties." 

The faregoing statute lmposea upan the dlstrlot rod 

county attorneys the duty to give opinions and sdvloe in wJIlting 

to any aaunty or preolnat oifloer of their dlstrlot or oounty. 

The aounty and preolnot ofSlolol8 of your county may request 

pcur dlstrlat attarney for opinion8 and advloe in vrlting tauohlng their oSSlOla1 duties. 

Speolfloally ansverlR$ your quastlon regarding the 

employment of an attorney, it bC our opinion that under the Soots 

SE&S I 

0~ a& the foregoing statutes and the rules of laws 

n our Opinion Ro. O-4979, 8 oopy OS vhiah is enolosed 

SW your oonvenlenos, the Cunmls~nors~ Caurt vauld ?1ot have the 

authority to engage oowel to perSorm the duties OS aounty attorney of your oauntg, but that it would hsve the authority to 

engage onrasel to advise the Ccxmlnslm!ms~ Court, btlt w&d not 

bve authority to employ an attorney to advise oounty and preoinot 

ofiloials, aa it has been held that Artlole 334 was intended to 

impose the duty upon the oounty and dlstrlot attorneys, and not 

as a restrioticm upon the Commlssi~aars~ Court in the emplog- 
Hon. Wllllam R. Rdvarda, Page 5 

ment OS SttCrMya t0 8dYl88 l nd rWkdeP 88~~lO88 to th8 County 

in ~Ol’tSllt =ttWS Oooing b8fOl’8 it fW it8 OOMid8~8tiQli. 

Olbson, et al. Y. Darlr, et al, 236 3. W. 202. 

Vlth referen to th8 8ppolata8nt of oounty attorneys 

pl’0 tW Snd other MtteFS ml’tau t0 th8 d@ttS Of tb8 C-i*- 

slonerr~ Court in l mployln3 l ttorn8y8 ve dlrrot ymr l tt8ntloa to 

oplnlozl EO. o-4979. 

fOUF8 VSrj tmrl;J 

ATTORm G3E5?AL oFTmA 

7 T&g &dell Vllllam8 

,~ ..:.,.. ti8iSkZlt 

AW:fo 

-0.