Honorable H. D. Stringer 

County Attorney 

Hall County 

Memphis, Texas 

Dear Sirt Opinion No, O-3599 

Re: If the Ceunty Attorney Is directed to bring suit for the county 

against an Individual for damages 

done to property. belonging to 

the county, la he snly allowed 

the commission thereen prescribed by~~Artlale 335, Vernon's 

Annotated Civil Statutes, and 

related questions? 

Your letter of August 14, 1941, requesting an opitiion of this department upon the questions stated herein has 

been received. 

We quote from your letter as follows: 

"If the County Attorney Is ~directed to bring 

suit for the county against an Individual for 

damages done to property belonging to the county 

is he only allowed the commission thereon prescribed by Art. 335, R. 5.7 And if the suit was 

settled before judgment would he still be entitled 

to the remuneration provided In Art. 335, 

R. S.? Also would the remuneration in such a 

suit be a fee of office and accountable for as 

such?" 

Article 335, Vernon's Annotated Civil Statutes, reads 

as follows: 

‘tienever a dlstrlct or county attorney has 

collected money for the State or for any county) 

he shall within thirty days after receiving the 

same, pay it Into the treasury of the State or 

of the county in which It belongs, after deducting therefrom and retaining the commissions 
Honorable H. D. Stringer, Page 2 (C-3599) 

allowed him thereon by law. Such district or 

county attorney shall be entitled to ten per cent 

commissions on the first thousand dollars 

collected by him in any one case for the State or 

county from any individual or company, and five 

per cent on all sums over one thousand dollars, to 

be retained out of the money when collected, and 

he shall also be entitled to retain the same commissions on all collections made for the State or 

for any county. This article shall also apply to 

mone 

law. 

3 realized for the State under the escheat 

Paragraph 3 of Article 6716, Vernon's Annotated Civil 

Statutes, provides: 

“3. The owners, operators, drivers or movers 

of any vehicle, object or contrivance over a public highway or bridge shall be jointly and 

severally responsible for all damages which said 

highway or bridge may sustain as the result of 

negligent driving, operating or moving of such 

vehicle, or as a result of operating same at a 

time forbidden by said road officials. The amount 

of such damages may be recovered In any action at 

law by the county judge for the use of the county, 

and such recovery shall go to the benefit of the 

damaged road, The count% attorney shall represent 

the county in such suit. 

You do not state in your letter whether or not the case 

in which you may be directed to represent the county is a case as 

mentioned in Article 6716, supra. However, in the absence of su'.h 

statement, for the purposes of this opinion, we assume that the 

case is not to be brought under this statute. 

Article 334, Vernon's Annotated Civil Statutes, provides 

that district and county attorneys shall advise and give opinions 

to the various county and precinct officers, but this does mt 

mean that the Commissioners ) Court is required to employ the 

County Attorney in all civil suits, nor does it mean that the 

County Attorney has the right to represent the county in all such 

suits 0 

In the case of Loosoon v. Harris County, 38 Tex. 511, 

the Supreme Court held that the Commissioners' Court of the county 

has the exclusive right to determine whether a suit should be 

brought in the name and for the benefit of the county, except in 

the case where a concurrent or exclusive right is conferred on 
Honorable H. D. Stringer, Page 3 (O-3599) 

some other official or tribunal by the Legislature to exercise in 

some specified c&se a like discretion. 

In the case of Brady v. Brooks, 89 S. W. 1052, the 

Supreme Court stated that: 

“The principal purpose of the Constitution In 

creating the offices of district attorney and 

cqunty attorney was to make it the main functions 

of these officers, the prosecution of criminal 

cases.” 

However, the Legislature has from time to time conferred 

additional duties upon these officers. As further evidence that 

the duties and rights of the County Attorney prescribed by the 

Constitution were not restricted, we refer to the subsequent acts 

of the Legislature conferring additional duties upon these officers, such as, Article 6716, supra, and Article. ,339, Vernon’s 

Annotated Civil Statutes, which require the District or County 

Attorney to Institute such proceedings as are necessary to compel 

the performance of certain duties by certain officers and to preserve and protect the public interest as set forth In said 

statute. 

The Commlsslonerst Court has the authority to employ 

counsel to the exclusion of the County Attorney to institute 

suits in behalf of the county, except actions against office 

holders, as provided by Article 339, supra. This was held heretofore by this department In conference oplnlon No. 2673. This 

opinion held that the Commissioners I Court has the authority to 

employ counsel to the exclusion of the County Attorney to bring 

suit against the Banking Commission for the recovery of county 

funds under the guaranty bank fund law on account of the banks 

(county depository) failure, and the County Attorney Is not 

entitled to any commission on collections made as a result of 

said suit, except as may be provided by contract between the 

County Attorney and the Commlssionersf Court. 

The case of City National Bank v. Presidio County, 26 

S. W. 777, holds that it Is not the legal duty of the County 

Attorney to represent the county in suits affecting its interest. 

The case of Jones v. Veltman, 171 S. W. 291, holds that the 

Commissioners’ Court has the authority to employ the County 

Attorney to represent the county in pending suits. 

After a careful search of the statutes, we fail to find 

any statute imposing the duty upon the County Attorney to 
Honorable H. D. Stringer, Page 4 (O-3599) 

represent the county in any suit to recover damages done to 

property belonging to the county except as above stated. This 

being true, there is no duty imposed upon.the County Attorney to 

bring the above mentioned suit. However, under the above 

mentioned authorities, the Commissioners' Court has the legal 

authority to contract with the County Attorney to bring the suit 

for the county and to pay him a reasonable compensation for his 

services in such suit as may be determined by the CommisslonersD 

Court and the County Attorney. We do not think that Article 335, 

supra, has any application to the question under consideration,, 

but that said statute applies only in those instances where the 

duty or duties are imposed upon the County Attorney by law to 

perform such duties and in such cases, Article 335, supra, provides 

compensation for such services. 

Therefore, it is the opinion of this department that 

Article 335, supra, has no application to the question under 

consideration, and that the Commissioners' Court can legally 

contract with the County Attorney to bring the above mentioned 

suit and pay the said County Attorney a reasonable compensation 

for such services a8 may be agreed upon between the Commissioners' 

Court and the County Attorney. Our opinion No. O-45 supports the 

conclusion stated herein, and we enclose a copy of the same for 

your information. 

Trusting that the foregoing fully answers your inquiry, 

we are 

Yours very truly 

ATTORNEY GENERAL OF TEXAS 

BY /s/ Ardell Williams 

Ardell Williams 

Assistant 

AW:QO 

ENCLOSURE 

APPROVED AU0 21, 1941 

/s/ C+erald C. Plann 

ATTORNEY GENERAL OF TEXAS 

APPROVED 

Opinion 

Committee