~-863

OFFICE OF . - ?03 

# THEA~ORNEY GENERAL

AUSTIN. TEXAS

PRICE DANIEL *TTmwzY GENERAL October 28, 1947

.Hon.Ii.P. Guerra, Jr. CohntyAttorney Starr county Rio Grande City, Texas opinion NO.v-416
Re: Authority of the CommIssIonera Court to retain counselunder the submitted facts.
Dear Sir:
We refer to your letter requesting an opinion as to whether the Commlssloners~Court of Starr County has the authority to employ an attorney to draw up the necessary orders and instruments for redistrictingof the commlssloners~precincts, justice prealncts,and electionprecincts in actiordance with an order passed by the Commissioners1Co&t. The CountyJudge and two I commissionersvoted in favor of the order and two commlsslonersvoted against said order.

You ask also whether the CommlsslonersgCourt baa the authority to employ an attorney to represent It iu defense of a suit seeking to enjoin the carrying out of the above metitioned order.
We quote.,the

following pertinent statutory provlslons:

"Art.2343. Aby three members of the' said court, Including the county judge, shall constitute**a** quomnn **for** the transaction of an; ~ufilness,

except that of levying a county

. "Art.2351. Each commlssloners court shall:
"1. Lay off their respective counties into prealncts,not less than four, and not more than eight, for the elctlon of justices of the peace and codstabltis, fix the times and places of holding justices kourts, and shall establishplaces In suoh precincts where elections shall be held; and Shall

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Hon. Ii.P. Guerra, Jr. - Page 2 v-416

establish justicesprecincts and justices Courts for the unor vided by law.

. . . pnlzed counties as pro-

"Art.2933. Each commissioners court may, If they-.deem :Xt proper,,

at each August term of the court, divide their respective counties,and counties attached thereto for judicialpurposes+,intoconven~entl.elec,t+n precincts;'each.of"whichshall be diff~r,~nt;ly,:..I.:.

. numbe~d.and~:descrlbedby natural or"art$fi‘-',:l.~.Y: .:-cLal~bcl?qlar$es or survey llpes,,by,anior;der ..~'. ,:, to..be:.enter@...upon theminutes of the court. .-',:They:j'~hal~..~~edlately thereafter publish such'orddr'in'

some newspaper In the county for three consecutiveweeks. If there be.no ~.:.. newspaper in the county, then such copy oft

*~.~.i~,,By;~~~~~~:~.os~ +e+abave guoted,:@atatoryProvisi~~p~~~~~~~.l~ylng,,~~.,~f~~~oijlio2L)~jopers!~~~~~~ncts,justice,Yprecincts;

.~~~d,:electSoq:jpirii!~inc‘t.~;:~~.~:.:~~t?~s. of. cbkiti"~6 'the'

county. It%~f#~$Qp~$4~~ $ha,tin speclal matters where the interest of the countymay require the.services of.an:attorney,~.a,,~o~~sgio~~r?.! Court has the'powerand authorlty'tohire counsel to aidthe Commissioners' Court In carrying out Its duties and also to represent..:the..c~.ya~~~-;~ln.,-l~~e~~I!thatl,dlrec.tly concern county;business~.;~ .~aepls:.v,;;Selgler;:,~l12; $.I,:.W. 188; Gibson V. Davis;,.,236.;'S,i:W.: .202,,.:?12:;~1~.~~~~~stonC.ounty.,v...Gresham, 220 $ic,rW,

260;. &i Tex,!

c..Jyr,r, 57& I.:

-:... ;: :-: Under the facts presented In your Inquiry, the Commissioners'.Court,,elpploge,~,,an attorney-,@?

draw the necessary.orders 'tocarry out such changesand redlstrlcting of commlsslonerstprecincts, justice precincts, and election p~ecincts.~.,,,Qln~e~:th~~Fo~,~ss~oners~ Court had the.:power

to~~:lay

cff-!~uch,,pseqincts,~ italso had the authority:

to: employ:an.attqrng.:~~o prepctre;the~

necessary orders tocarry,..,out : such- pov.ep.s:l.z,

,~:~.:"~ +: x::.,,r'. .,: '. :.. i : :1i!.:

.:,. : :.;;.j:.ii r.i,;;~;:‘ .:... ?":: i. :: .>.:.. .::: ..,..,

,.r

~,Bianswer to yoUr s&and question,we *efer

gou tO'tha CaS8'of City "National. Bank ~of-dustin

vi Presidio.Cormty,26 **S..lf.** 775, wherein i&was held that the CoImnissloners~

CoUrt was authorized to employ counsel to *present the Commlssloners!Cow$ln a suit which was brought against a coUnty jtige and commlssloners to enjoin the alleged 1118g41 action of the Qnninlssldn8rst court 

### inremovingth8,COtltlty seat 6f Pr8Sldl6 OoUnty fr.am **Ft.** Davis to Maris, ,The .CoUrtheld that while the Suit was ~ncmlnally against them as lndlvldasls, its de

### siga'andeffect was to control the performance of thelr official acts aUd was a matter of concert&to th8 county. We quote the following:

w8 aXW'Clearly of oplnion~that the commiSSlOn8rS.dld not~exceed th8ir powers in the employment of the attomeys, 

### 86 far **as** the suit of Carothers against the.~oun~~{d~, and commlsslonerswas concerned. *as ncmlnally axsuit against them as 

### lndlviduals, .lts

design and effect 

### was to obstruct and~control the performance of the offlclal acta, and W8 are not disposed to hold %n such a case that they must,do nothing towardsde.-~ fending such suft,.or,~~must employ~caunselat their own expense. They had 

### powerto employ couns81, and to defray the reasonable expense thereof out,of the county~funds."
The Court also held that the right to employ counsel **was** not dependent upon whether the order of the ~Commlssloners~Court which was under attack'waa valid or Invalid. 'We quote,the .followlng:

ItIn OFd8r'tO assw8 a speedy, certain, and proper.declslon of the question, the commlssloners doubtless conoluded tbatboth the cases should **be** properly prepared and presented, and we do not believe they abused their authority In employing counsel to accomplish this. It was 

### inpursuance of their duties to do SO. We conclude for these rearioas that the employment of counsel In the case' of Stat8 v. Carotherswas a legal exer- ,CiS8 Of pOW8r on the part Of the COUUtliSSiOners, done in the lntezestand bus$ness of the county. These views are supported by authorHornblower v. Duden 35 

### Cal.664sDos- ~~~*v.Howe, 28Kan. 353;'Ellis v. Wasioe.



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. ii.P. Gu&ra, Jr. - Page 4 v-416 .:

Co., 7 Rev. 291. Thg validity of their acts was uot affected by th8 fact that th8Y were miStak8n. or that there was an adverse'decision of the auestlon. It has been freauentlg held that the Dower cannot be measured bs. such a rule." (Emphasisours) Although the suit In the Instant case was nominally~ against th8 two commissionersand the county judge Of Starr County who voted affirmatlv8ly to carry out such redlstrlctlng, it is our opinion that Its design and effeetwas to Control the performance of the Commissioners~ Court's offlclal acts and was a matter of concern to the county under the rule laid down In the Presidio County case. Therefore, the Commlssloners~Court had the power to employ an attorney to represent them.,

We note that according to your request, the county auditor has refused to approve the account presented by such attorney for services rendered by hImto the Comalssionars~ Courtbn.th8 ground tbat.the amount to be paid him Is exorbitant and excessive. This Is a fact question which this office cannot pass upon. ~Eovever,iit is our opinion that the CommissFoners'Court of Starr County had the power to employ couns.el to perfop the servicesmentioned in your request and to pay such attorney a~,r8aSonabl8 sum.

The CommlsslonerslCourt la authorized to FJIIlplOy

COIlUSe t0 prepare n8c8SSal'y Ol'd8r8t0 carry out the redlstrlctlngof commlssloners~ precincts, just108preclncts'andelectI+ pl'eclncts, and to represent the CommIssIonera Court Inan action brought by Individuals to enjoin the Court frca~ puttlug Into 8ff8Ct'~SpCh r8dlst~lcting and pay such attorrMy~a'reasonabl8 sum for the services rendered. Gelveston Co&ty v. Gresham, 220 S. W. 560; Qrooms v. Ati3scosa county, 32 s. w. 188.; City National Bank of AUStin v. Presidio County, 26 S.W. 775. Very truly yours APPROVED:~ ~~ATTORI@XGEBEFiALOFTXAS

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ATTORHEY QBRERAL Assistant JRtdlm:it