Bonl William L. Taylor

ProsecutingAttorney Harrison County Marshall, Texas OpinionNo. V-995.

Re: The authority of the Commiaaionera~

Court to retatn attorneys to represent the County during the taking of depositionsunder the Dear Sir:

. I submitted facts.

Reference is made to your recent request in which you ask: February 3, 1950

"(1) Can the Commissfonera' Court contract with attorneys to representHarrison County during the taking of depositionsbefore any suit involving said county has been fFl.ed and at a time whenthere is no absolute certainty that a law suit of any kind Fnvolving said county will be filed? "Assumingthat the answer to the first question is in the affirmative, "(2) Can the Commissioners' Court after part of the serviceshave been performed by the attorneys,enter an order to pay the attorneys for servicesperformed,where no the fee to be.chargedwere arrangementsas to made prior to part by said attorney?"performanceof services

the brief submIttedwithy&r re-

_ You stated in quest:

"At all of these depositionhearings the law firm

. . . has had an attorneypresent Accord,ing

to the County Judge the firm ia; &ked to sit in on the hearings in behalf of the County with the understanding thatar- ;;;zmenta for attorneys'fees would be. made

. No orders have been entered by theCommissioners'Court relative to the employment."Hon. William L. Taylor, page 2 (V-995)

It is stated in Vol'ume 11 of Texas Jurlsprudence at page 575:

"The commissioners' court has power to employ attorneysto assist the regularly constitutedofficers of the county in the prosecutionof its claims and suits, and to pay for such services out of the county funds. It seems, however, that the commissioners court does not have the power to deprive the county attorneyof his rightful authorityin this regard. The employmentof counsel is restrictedto spe-~ cial cases where the services of an attorney are required;nor has the court power to make an order which will warrant the payment of county money to an attorney for services neither requirednor performed."

In GalvestonCounty (Tex.Civ.App.1920, error ref) v. Gresham, 220 S.W. 560

, the court had before It the question of whether the Commissioners1 Court could employ an attorney to represent the'countvin the building 03 a sea wall; It W&Ssaid:

"And if the commissioners1 court thus had the broad power to construct this extenslon of the sea wall, its like authorityto ,enlistthe services of the appellee.tothat end would follow'as a necessary implication; that being deemed essential to the exercise of the power and dusty imposed upon it. Bank
v. Presidio County, 26 S.W. 775; Waterbury v. City of Laredo, 60 Tex. 519.”

It Is apparent from the foregoing that the~com-~ missioners1

Court has the power and authorityto employ attorneysin the prosecutionof its claims and suits and to pay for such services out of the general,fundof the countywhere the county, as a whole, is interestedand affected in such proceedings.

You are therefore advlaed in answer to your first question that the CornmIssIoners Court can contract with attorneysto representHarrison County during the taking of depositionsbefore any suit lnvolving.the countyhas been filed Andy at a time when there is no absolute certaintythat a law suit of any kind involving the countywill be filed.Hon. William L. Taylor, page 3 (w-99$)

We will now consider our second question. In City of San Antonio v. French, 3; 0 Tex. 575, 16 S.W. 440 n&Q), it is stated:

"It may be that when a municipal corporation~

has received the,benefitof a contract,which it had the power to make but which was not legally entered into, it may be compelled to do justice, and to pay the consideration, or at least to pay for what It has received. In such~caaeait is said that the law will imply a contract

. . . As said by Mr. Justice Field in the case of Gas Co, v. San Francisco, 9 Cal. 453: When the contract is executory,the corporation cannot be held bound unless the contract is made in pursuance of the provisions of its charter;but where the contract is executed, and the corporationhas enjoyed the benefit of the consideration,an implied assumpsit arises against it.'"
finSluder v. City of San Antonio, 2 S.W.2d 841, (Tex.Comm.App.l%!tl) the following is stated:
"Since the decision in the French Case oar courts have uniformlyannounced the doctrine that where a county or municipality receivesbenefits under a contract, ille;albecause not made in conformitywith ?&e Constitutionor statute of the state, brcharter provision of the city, it will be held liable on an implied contract for the reasonablevalue of the benefitswhich. it may have received. In other words, while such contracts are void, and no recovery is permitted thereon, our courts hold that oommon honesty and fair dealing require that a. county or municipality.should not be permitted to receive the.benefitof.money,property, or services,without paying just compensation therefor. Under such circumstances,a private corporationwould clearly be liable under an implied contract. There aan be no sound reason why the same obligationto do justice should not rest ,upona municipal corporation." (Emphasisours)
You are therfore advised that it Is our opin-

. ion that the Commissioners~ Court of Harrison County may,. .

Hon. WilliamAL.Taylor, page 4 (V-995)

after part of the serviceshave been performedby the. attorneys,enter an order to pay the attorneysfor services performed,where no arrangementsas to the fee to be chargedwere made prior to the time of part performance of the servicesby such attorneys.
SUMMARY
The Commissioners' Court can contract with attorneysto representHarrison County during the taking of depositionsbefore any suit involvingthe county has been filed and at 8 time when there Is no absolute certainty that a law suit of any kind involving the county will be filed. 11 Tex. Jur. 575, Counties,Sec. 45; Galveston County v. Gresham, 220 S.W. C;b~civ. App.1920,error ref.).

After part of the semioes have been performedby the attorneysthe Commissionhers'Court of Harrison County may enter an order to pay the attorneysfor the services actuallyperformed,even though no arrangements as to the fee to be charged were made prior to the time of part performdlriceby.the attorneys. City of San Antoniov. French, 80 Tex. 575, lb 9 w 440 (1691).Sluaer v. City of San Antonio:2 S.W.i841*(Tex.Comm. App.1928). I .; Yours very truly,

APPROVED: PRICE DANIEL AttorneyGeneral

J. 0. Davis, Jr. County Affairs Division
Charles D. Mathews Executive Assistant Assistant _~ BA:mw