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 Attorney and Criminal 

District Attorney in CondemnaDear Mr. Grisham: 

,~tion Suits by the County or 

the State 

'. 

We have received your let,ter in which you ask if it is the 

official duty of the County Attorney,to represent the State and 

County in condemnation cases. 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 

condemnation cases; t L t it is your understanding that the 

county may, if it sees fit, employ your services to represent 

..the State and county in condemnation proceedings and pay a fee 

~therefor. 

In Opinion Do. O-1040 dated July 7, 1939, it was held by 

this Departmentthat a county autorney~is not requi.red to represent the county in condemnation proceedings and that the 

commissionersf. court may contract with the county attorne:y to 

represents the county in such proceedings and compensate him 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 prosecuting condemnation suite for rights of way and pay 

him compensation out 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,dated January'l3, 1940, modified the 

above Opinion No. O-1379 by holding that the compensation of 

for condemnation cases may be on a salary; 

as may be determined by the commissionersV 

In,letter Opinion (R-960) dated December 3, 1947, it whs 

hald that the county may employ a law firm to represent the 

county in condemnation aasee when the Assistant County Attorney 

is a member of said law firm and .oited Opinion No,,O-1040 as ‘ 

authority, 
a 

_. 

,. 

.,. 

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

'O'inion No. 0-1040:&s again u held 

(D-9577 dated December 4;1947 and 7 

in two letter opinions 

195,l.b. 

.R-2282) .dated February 15, 

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

aiqee ‘the ~original ~Opinion No, G-1040 and we cite those opinions ae.reaeohe for our holding.~as hereinafter Seth out- .,It 

~~~?e:aobice~,, .ho~ver;:that these o inions 

s~&ts~ by'a,county to 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 opinions were written; a new statute.has 

Ueen'eneated pertaining.to suits ~.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 contained in 

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 Drosecution of any condemnation .suit brought~ 

' ~bp%he State Hightiay'Commission in the"name of the State ~. 

~of Texas for'the acquisition. of property pursuant to the.' 

powers granted in this Act; the Attorney General,~ at the .~ _ 

request.of the State Highway Commission, or, at the Attorneys 

GeneralZs. diroction,'the:applicable Count 

1: 

or, District' : : 

‘Attbrxiey or Crtiinal District -Attorney, s all bring and 

prosecute the suit.inthe name -of the State of.Texas and,',. 

the venue of any such sui't -shaU. be Sfi'the Gunty in tiich ': 

the property'or a 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-State of Texas for the acquisitions of.property,for highway 

right@:-.of way, if,tbe At.torney General directs him to do sol, 

the applicable Co.unty Atlzorneyf, Distriot Attox'ney, or Criminal 

District Attorney of.the County where the land to be condemnad 

is located has the duty to bring and prosecute such suit, 

,It is to be noticed, however, that this Act does not provide for an9 compensation for the attorney for services in 

filing and prosacuting condemnation suits of the.nature just 

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 perform sutih services is imposed as an .incident to the 

office and the officerby his acceptance thereof is deemed to 

,have engaged 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 (error dismissed); M&alla v. Rockdale,. 

246* 654 (Corn. App.); and Hallman v. Campbell, 57 Ten. 54. 

In answer to the questions propounded, you are advised it 

is our opinion that it is not the duty of the county attorney, 

district, or criminal district attorney officially to represent 

the county in filing- and prosecuting condemnation suits 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.by the 

Attorney General. to do eo, to bring and prosecute such suite. 

The law does not. authoriae any compensation to 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 authorire any 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