Bonl William L. Taylor 

Prosecuting Attorney 

Harrison County 

Marshall, Texas 

Opinion No. V-995. 

Re: The authority of the 

Commiaaionera~ Court 

to retatn attorneys to 

represent the County 

during the taking of 

depositions under 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 represent Harrison 

County during the taking of depositions before 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? 

"Assuming that the answer to the first 

question is in the affirmative, 

"(2) Can the Commissioners' Court after part of the services have been performed 

by the attorneys, enter an order to pay the 

attorneys for services performed, where no 

arrangements as to the fee to be.charged were 

made prior to part 

by said attorney?" 

performance of services 

You stated in the brief submItted withy&r re- _ 

quest: 

"At all of these deposition hearings the 

law firm . . . has had an attorney present 

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 attorneys to assist the regularly constituted officers of the county in 

the prosecution of 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 attorney of his 

rightful authority in this regard. The 

employment of counsel is restricted to 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 required nor performed." 

In Galveston County 

(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'countv in the building 03 a sea wall; It W&S said: 

"And if the commissioners1 court thus 

had the broad power to construct this extenslon of the sea wall, its like authority to 

,enlist the services of the appellee.to that 

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 authority to employ 

attorneys in the prosecution of its claims and suits and 

to pay for such services out of the general,fund of the 

county where the county, as a whole, is interested and 

affected in such proceedings. 

You are therefore advlaed in answer to your 

first question that the CornmIssIoners Court can contract with attorneys to represent Harrison County during 

the taking of depositions before any suit lnvolving.the 

county has been filed Andy at a time when there is no absolute certainty that a law suit of any kind involving 

the county will 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; 0Tex. 575, 16 S.W. 440 

n&Q), it is stated: 

"It may be that when a municipal corporation~ has received the,benefit of 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~caaea it 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 corporation has enjoyed the 

benefit of the consideration, an implied 

assumpsit arises against it.'" 

fin Sluder 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 uniformly announced the 

doctrine that where a county or municipality receives benefits under a contract, 

ille;al because not made in conformity with 

?& e Constitution or statute of the state, 

brcharter provision of the city, it will 

be held liable on an implied contract for 

the reasonable value of the benefits which. 

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.benefit of.money, property, 

or services, without paying just compensation 

therefor. Under such circumstances, a private corporation would clearly be liable under 

an implied contract. There aan be no sound 

reason why the same obligation to do justice 

should not rest ,upon a municipal corporation." 

(Emphasis ours) 

You are therfore advised that it Is our opin- 

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

Hon. William AL. Taylor, page 4 (V-995) 

after part of the services have been performed by the. 

attorneys, enter an order to pay the attorneys for services performed, where no arrangements as to the fee to 

be charged were made prior to the time of part performance of the services by such attorneys. 

SUMMARY 

The Commissioners' Court can contract 

with attorneys to represent Harrison County during the taking of depositions before 

any suit involving the 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 

performed by the attorneys the Commissionhers' Court of Harrison County may enter an 

order to pay the attorneys for the services 

actually performed, 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 Antonio v. 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 

Attorney General 

J. 0. Davis, Jr. 

County Affairs Division 

Charles D. Mathews 

Executive Assistant Assistant _~ 

BA:mw