## THEA-ITORNEY GENEEAE OF TEXAS

AUSTIN i%Twas
FvII.I. wIu3o~ *-rroRNEY DENERAI. '-' September 2, 1960

Mr.~. J. 9. Grishak!, Criminal Distriot'Attorney Opinion No, W-929 'Canton,

Texas ." Re: Duty of County Attorney, District Attorneyand Criminal DistrictAttorney in CondemnaDear Mr. Grisham: ,~tion Suits by the County or the State '.

We have receivedyour let,ter in which you ask if it is the officialduty of the County Attorney,torepresent the State and County in condemnationcases. You state that it is your understanding tht'as County and District Attorney, It is not your duty officially to re resent the State and Van Zandt County in condemnationcases; tL t it is your understanding that the countymay, if it sees fit, employ your services to represent ..the State and county in condemnationproceedingsand pay a fee ~therefor.
In Opinion Do. O-1040 dated July 7, 1939, it was held by this Departmentthat a county autorney~isnot requi.red to represent the county in condemnationproceedingsand that the commissionersf.

court may contractwith the county attorne:y to represents

the county in such proceedingsand compensatehim as per contract. Opinion No. O-1379 dated November 2, 1939 held that a county may employ an attorney for,the purpose of instituting and prosecutingcondemnationsuite for rights of way and pay him compensationout of road bond funds; that such compensation should be a specific sum of money and not on a salary

. basis. Opin,ion

No. O-1164,datedJanuary'l3,1940, modified the above Opinion No. O-1379 by holding that the compensationof for condemnationcases may be on a salary; as may be determinedby the commissionersV

In,letterOpinion (R-960)dated December 3, 1947, it whs hald that the county may employ a law firm to represent the county in condemnationaasee when the Assistant County Attorney is a member of said law firm and .oited Opinion No,,O-1040as ‘ authority,a

_.

,.

.,. ,Mr.,

:J,3. Grisham,page,'2 ..~(&929). :

'O'inion

No. 0-1040:&s again u held (D-9577dated December 4;1947 and 7 in two letter opinions 195,l.b. .R-2282) .datedFebruary15,

':'The ,above opinions haPe been.followed by our Department aiqee ‘the

~original

~Opinion

No, G-1040 and we cite those opinions ae.reaeohefor our holding.~as hereinafterSeth

out- .,It ~~~?e:aobice~,, .ho~ver;:thatthese o inions s~&ts~ by'a,countyto ac uirwproperty 3 apply only to 2 y cond.emnation even though~the'suit

may~be iled in the name of the State of Texas. Since the above opinionswere written; a new statute.has Ueen'eneated

pertaining.tosuits~.by the State Highway Commis-: sion in the name'af then State for the purpo.se of condemning &nd fca h'

T way rights~

of way.. This act.is containedin HouseDill; 79, Chapter 300, &r Session of the Pa e 724, of the Acts of the

Fifty-fi

% %?V;A.C;&).. A’portion of Section4 of this Act (Article ~~ th Legislature (1957) (Article 66~3)~reads as follows:
"."In the Drosecutionof any condemnation.suit brought~ ' ~bp%he State Hightiay'Commission in the"name of the State ~. ~ofTexas for'the acquisition. of property pursuant to the.' powers granted in this Act; the Attorney General,~ at the .~

_ request.ofthe State Highway Commission,or, at the Attorneys GeneralZs.

diroction,'the:applicable Count 1: or, District' : :
‘Attbrxiey or Crtiinal District-Attorney, s all bring and prosecutethe suit.inthe name -ofthe State of.Texasand,',. the venue of any such sui't -shaU. be Sfi'the

Gunty in tiich ': the property'ora part thereof.is e5.tu&ted,w ':Under the above'statute, It la clear that b condemnation suits,.

,brought b9 the State Highway Commission in the name of the-Stateof Texas for the acquisitions of.property,for

highway right@:-.of

way, if,tbe At.torney General directs him to do sol, the applicableCo.unty Atlzorneyf,

Distriot Attox'ney, or Criminal DistrictAttorney of.the County where the land to be condemnad is locatedhas the duty to bring and prosecute such suit, ,It is to be noticed,however, that this Act does not provide for an9 compensationfor the attorney for services in filing and prosacutingcondemnationsuits of the.naturejust mentioned. It,

is well settled that an officer may be required by law to perform specific services or discharge additional duties for,

which no compensation is,provided;that the obliga-', t&n to performsutih services is imposed as an .incident to the office and the officerby his acceptance thereof is deemedto ,haveengaged to perform such duties without compensation. See Section 116 on "Public Officers " 34 Tex. Jur. 531; Rice v.Mr, J. S.'Grisham,page 3 (WW-929)

I Roberts, 177 S.W. 149 (errordismissed);M&alla v. Rockdale,.

246* 654 (Corn. App.); and Hallman v. Campbell, 57 Ten. 54.
In answer to the questionspropounded, you are advised it is our opinion that it is not the duty of the county attorney, district, or criminaldistrict attorney officially to represent the county in filing- and prosecutingcondemnationsuits by the county whether in t e name of the county or the @ate and that the commissioners~.court may contract for such officers or other attorneys to Perform such services and pay for the same. As.to suits filed by the State Highway Commission in the name of the State, it is the duty of such attorneys,when directed.bythe Attorney General.

to do eo, to bring and prosecute such suite. The law does not.

authoriaeany compensationto be paid for smh:serv$ces.
ii!mix 1, A County Attorney,District Attorney;or Criminal District Attorney is not required officially to represent the County end State incondemnation suits yhzug~; by the Connty in the nme of the. Staue'or County. ml&loners' court may employ such attorneys or other attarneys for such sertices and pay for the-same. :2* In suits~brought by the State Highway Commission in the name of the State of Texas to condemn~property for highway rights of way, such attorneys-when directed by the .Attorney

Geaeral to do so, shall bring and prosecute such apits, but the law does not authorireany compensation to be paid for such services. Very truly -yours, UulL WILSON

neral of Texas

APEgZOVHD:
OPINION CONMIT!TEE REVIEWED FOR THE ATTGFLNEYGE~AL W. V. Gsppert,iChairminl BY: Houghton Brownlee Robert T. Lewis Cecil Cammack~ Ray Scruggs Richard Wells