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 Individualfor damages done to property.

belonging to the county, la he snly allowed the commission thereenprescribed by~~Artlale



### 335,Vernon's Annotated Civil Statutes, and related questions?

Your letter of August 14, 1941, requesting an opitiion of this departmentupon the questions statedherein has been received.

We quote from your letter as follows:

"If the County Attorney Is~directedto bring suit for the county against an Individual for damages done to propertybelonging to the county is he only allowed the commissionthereon prescribed by Art. 

### 335,R. 5.7 And if the suit was settledbefore judgmentwould he stillbe entitled to the remunerationprovided 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 attorneyhas collectedmoney 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 inwhich It belongs, after deducting therefromand retaining the commissionsHonorable H. D. Stringer, Page 2 (C-3599)

allowedhim thereonby law. Such district or county attorney shall be entitled to ten per cent commissions on the first thousanddollars collectedby him in any one case for the State or county from any individual or company, and five per cent on all sums over one thousanddollars, to be retained out of themoney when collected,and he shall also be entitled to retain the same commissions on all collectionsmade 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 ormovers of any vehicle, object or contrivanceover a publichighway or bridge shall be jointlyand severallyresponsible for all damageswhich 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 forbiddenby said road officials. The amount of such damagesmay 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 letterwhether or not the case inwhich 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 thevarious 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 itmean that the County Attorneyhas the right to represent the county in all such suits0

In the case of Loosoonv. Harris County, 

### 38Tex. 511, the Supreme Courtheld that the Commissioners'Court of the county has the exclusiveright to determinewhether a suit should be brought in the name and for the benefit of the county, except in the casewhere a concurrent or exclusiveright is conferred onHonorable H. D. Stringer, Page 

### 3 (O-3599)

some other official or tribunalby 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:

“Theprincipalpurpose of the Constitution In creating the offices of district attorney and cqunty attorneywas to make it the main functions of these officers, the prosecution of criminal cases.”
However, the Legislaturehas from time to time conferred additionalduties upon these officers. As further evidence that the duties and rights of the County Attorney prescribedby the Constitutionwere not restricted,we refer to the subsequentacts of the Legislature conferringadditionalduties 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 certainduties by certain officers and to preserve and protect the public interestas set forth In said statute.
The CommlsslonerstCourt 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 oplnlonNo. 

### 2673. This opinionheld that the CommissionersICourthas 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 guarantybank fund law on account of the banks (countydepository) failure, and the County Attorney Isnot entitled to any commission on collectionsmade as a result of said suit, except as may be providedby contractbetween the County Attorney and the CommlssionersfCourt.

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’Courthas 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 toHonorableH. D. Stringer, Page 4 (O-3599)

represent the county in any suit to recover damages done to propertybelonging to the county except as above stated. This being true, there is no duty imposedupon.the County Attorney to bring the abovementioned suit. However, under the above mentioned authorities, the Commissioners'Court has the legal authority to contractwith 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 determinedby 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 instanceswhere the duty or duties are imposedupon 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 contractwith 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 opinionNo. O-45 supports the conclusion statedherein, and we enclose a copy of the same for your information.

Trusting that theforegoing 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