~-863 

OFFICE OF . - ?03 

THE A~ORNEY GENERAL 

AUSTIN. TEXAS 

PRICE DANIEL 

*TTmwzY GENERAL October 28, 1947 

.Hon. Ii. P. Guerra, Jr. 

Cohnty Attorney 

Starr county 

Rio Grande City, Texas 

opinion NO. v-416 

Re: Authority of the CommIssIonera Court to 

retain counsel under 

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 redistricting of 

the commlssloners~ precincts, justice prealncts, and 

election precincts in actiordance with an order passed 

by the Commissioners1 Co&t. The County Judge and two I 

commissioners voted in favor of the order and two commlssloners voted against said order. 

You ask also whether the Commlsslonersg Court 

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 establish places In suoh precincts 

where elections shall be held; and Shall 
. 

,. ~..: :_. : 

; T I _ 104 L’. Hon. Ii. P. Guerra, Jr. - Page 2 v-416 

establish justices precincts 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 

judicial purposes+,into conven~entl.elec,t+n 

precincts; 'each.of"which shall be diff~r,~nt;ly,:..I.:

. numbe~d.and~:descrlbed by natural or"art$fi‘-',:l.~.Y: 

.:-cLal~bcl?qlar$es or survey llpes,,by,anior;der ..~'. ,: , 

to..be:.enter@...upon the minutes of the court. 

.-',:They:j'~hal~..~~edlately thereafter publish 

such'orddr'in' some newspaper In the county 

for three consecutive weeks. If there be.no ~.:.. 

newspaper in the county, then such copy oft 

*~. ~.i~,,By;~~~~~~:~.os~ +e+abave guoted,:@atatory Provisi~~p~~~~~~~.l~ylng,,~~.,~f~~~oijlio2L)~jopers!~~~~~~nct

justice,Yprecincts; .~~~d,:electSoq:jpirii!~inc‘t.~;:~~.~:.:~~t

of. 

cbkiti"~6 'the' county. It% ~f#~$Qp~$4~~ $ha,t in speclal matters where the interest of the county may require 

the. services of.an:attorney,~.a,,~o~~sgio~~r?.! Court has 

the'power and authorlty'to hire 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~.~~~~~ston C.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 'to carry out such changesand redlstrlcting of commlsslonerst precincts, 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 to carry,..,out : such- pov.ep.s:l.z, ,~:~.:"~ +: x::.,,r'. ., : 

'. :.. i : :1 i! .: .:,. : :. ;;.j:.ii r.i,;;~;:‘ .:... ? ":: i.:: 

.> .:.. .::: ..,.., ,. 
r 

~,Bi answer 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 in removing th8,COtltlty seat 6f Pr8Sldl6 OoUnty 

fr.am Ft. Davis to Maris, ,The .CoUrt held that while the 

Suit was ~ncmlnally against them as lndlvldasls, its desiga'and effect 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 commlssloners was 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 towards de.-~ 

fending such suft,. or,~~must employ~caunsel at 

their own expense. They had power to 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 in pursuance of their 

duties to do SO. We conclude for these rearioas that the employment of counsel In the 

case' of Stat8 v. Carothers was a legal exer- 

,CiS8 Of pOW8r on the part Of the COUUtliSSiOners, done in the lntezest and bus$ness of the 

county. These views are supported by authorHornblower v. Duden 35 Cal. 664s Dos- 

~~~*v. Howe, 28 Kan. 353;'Ellis v. Wasioe 
. 

106.~tEon . 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." (Emphasis ours) 

Although the suit In the Instant case was nominally~ against th8 two commissioners and the county judge 

Of Starr County who voted affirmatlv8ly to carry out such 

redlstrlctlng, it is our opinion that Its design and effeet was 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~ Court bn.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 services mentioned in your request and to pay such 

attorney a~,r8aSonabl8 sum. 

The Commlsslonersl Court la authorized to 

FJIIlplOy COIlUSe t0 prepare n8c8SSal'y Ol'd8r8 t0 

carry out the redlstrlctlng of commlssloners~ 

precincts, just108 preclncts'and electI+ pl'eclncts, and to represent the CommIssIonera 

Court In an 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 ._ 

ATTORHEY QBRERAL Assistant 

JRtdlm:it