December 19, 1961

Honorable Steve Hurt CountyAttorney Hale County Plainview,Texas OpinionNo. WW-1227

Re: Whether a County has the duty and Attorney the authority to institute a suit on behalf of the county against a former county judge, a former county commissioner and all the incumbent commissioners to recover for the county moneys unlawfully caused to be paid out of county funds by the named officials Dear Mr. Hurt: and related questions.

You have requested an opinionwith regard to the duty and the authority of a county attorney to institute suit against a former county judge,a former county commissioner,and all of the incumbent county commissionersunder the following alleged facts:

" Taxpayerhas filed an action in the 64th District Court against the above named county officialsand former county officials. The taxpayerhas alleged that the named officials have caused to be paid from county funds certain unlawful expenses. Among the alleged unlawful expenses to be paid out of the county funds by the defendants are included: out of county traveling expensewithout first incurring such expense; in county traveling expense allowanceswhile using
a county furnished automobile; out of county traveling expensesby a commissioner in excess of three hundred ($300)dollars for one year; and various contributions to private persons and organizations. It is further alleged that one of the commissioners lived in a house owned by the county, using utilities at the county's expense, for several months without paying the county any rent for the same.Honorable Steve Hurt, page 2 (W-1227)

"The taxpayerplaintiffhas made demands upon the county attorney to bring suit on behalf of the.countyagainst the defendants for recovery of all the alleged unlawful expenses.
"All of the alleged expendituresappear to have been made by the County Treasurer at the direction of the commissionerscourt. The present County Treasurerwas not the County Treasurerat the time said expenditures were made."
Also, in a,telephone conversationwith this office on December 15, 1961,you made the following statement:

"Amajority of the incumbent county commissionerswho are presently chargedwith dereliction of duty were holding their respective offices during theperiod of time the alleged illegal acts were committed."

In addition to the foregoingalleged factsyou have submittedquestions as follows:

"Does the county attorneyhave the duty and the authority to file a suit in behalf of the county against a former county judge,
a former county commissioner,and the present commissioners to recover for the countymoneys unlawfully caused to be paid out of county funds by the named officials.

"If the countyattorney does not have such duty and authority,what county official, if any, does?
"Upon the facts alleged, coming to the knowletige

of the county attorney, should no other county official take any action to recover the money for the county,would any duty fall on the countyattorney to file
a law suit for recovery on behalf of the county?"

The questions that are herein involved have been the subjects of much litigation In this State. It is now well settled that a tax-payin? citizenhas the right to enjoinpublic officials fror making unauthorized expen-.’ . :

.. Honorable Steve Hurt, page 3 (WW-1227)

ditures of public funds. Hoffman v. Davis, 128 Tex. 503, 100 S.W.2d 94 (1937)Looscanv. County of Harris, 58 Tex.

Carrollv. Williams, 109 Tex. 155, 202 S.W.

However, it Is equallywell settled that a taxpaying citizendoes not have the legal standing necessary to maintain a suit for the restoration of moneys unlawfully expended by a county official. Hoffman v. Davis Lewrlght v. Lowe, 95 Te.x.157, 65 S.W. 1 ~~n~~~~"51~~~31"4~W~l~~:j.(Civ;App. 190?? iarrell v.

As a generalpropositlon.of law the commissioners' court is,chargedwith the duty and authority to bring a suit on behalf of the county for the recovery of moneys due it. In Terre11v. Greene, (1895) the~court stated: 88 Tex. 539, 31 S.W. 631

" .Thereare many instances in which it might.be necessary to bring suits in the
name of the county, or in which suits might be institutedagainst the co#nty not embraced in the terms of Article 260. In such cases the commissioners' courtwould have the right to control the institutionof such suits, because it has not been committedby law to any other officer or tribunal;

. . ."

In Looscan v. County of Harris, supra, the District Attorpey~;brought suit against Looscan, the Incumbent County Attorney, and other county officials for the purpose of recovering from Looscan certainmoneys alleged to have been illegallypaid him under a contract entered into with the commissioners' court and for the purpose of enjoining the county officials from making any further payment under the contract. The court held that the District Attorney was without authority to bring the suit against the will of the Commissioners'Court and stated:

”

. . .TheCommissioners'Court undoubtedly

*Article 260 appears in the Revised Civil Statutes of 1925
as Article 336.Honorable Steve Hurt, page 4 (W:i-1227)

has the right to cause suits tobe In the name of and for thebenefit Instituted of the county, and except Where a concurrentright to do the same thing, or where an exclusive right in a specified case or cases is conferred upon some other tribunalor some other officer of the government, the Commissioners~' Court must be deemed to be the quasi executivehead of the county,vestedwith exclusivepower to determinewhen a suit shallbe instituted in the name of and for thebenefit of the county." ‘(Emphasis

added) See also J. R. Phillips InvestmentCompany v. Road s, 172 S.W.2d 707 (Civ.App. 1943, error ref.\ Attorney General's OpinionNo. o-6543, (1945).

However, where the suit is due to the dereliction of a mojorlty of the members of the CommlssionerstCourt, it is the duty of the County Treasurerunder the authority of Article 1710Vernon's Civil Statutes to institute the proper suit or suits to recover,moneysdue the county. Hoffman v. Davis, supra;Attorney Generals Opinion No. O-2117 (1940);Attorney General'sOpinionNo. O-66 (1939). Article 1710Vernon's Civil Statutesprovides as follows:

"TheCounty Treasurer shallkeep a true account of the receiptsand expendituresof all moneys which shall come into his hands by virtue of his office,and of the debts due to and from his county; and directprosecutions according to law for the recoveryof all debts that may be due his county,and superintend the collectlon thereof."
In,the Hoffman v. Davis case the court cited Looscanv. Harris County, supra,and stated:

"This court,after determining that there was no statuteauthorizing the District Attorney to institute the suit, announced the rule that, since the right to do so was vested in the Commissioners'Court, that right must be held to be exclusive. I,

. . . "AS above pointed out, both the Commis-.. Honorable Steve Hurt, page 5 (WW-1227)

sionerstCourt and the county treasurer are vested by statuteswith the right to institute this litigation. Since the former is in no position to act, the right of the latter to do
so is exclusive,unless there is conferred upon the County or DistrictAttorney by Article 339 the concurringright

. . . a questionwhich
we need not determine."

The general authority of a county attorney, in so far as civil actions are concerned is derived from the Constitutionand the statutes enacted by the Legislature. The constitutional stipulationappears as ArticleV, Section 21, Constitution of Texas:

"A Zounty Attorney, for counties in which there is not a resident Criminal District Attorney, shallbe electedby the qualified voters of each county, who shallbe commissionedby the Governor, and hold his office for the term of four years. In case of vacancy the Commissioners'Court of the county shall have the power to appoint a County Attorney until the next general election. The County Attorneys shall represent the State in all cases in the District and inferior courts in their respective counties;but if any county shall be included in a district in which there shallbe a DistrictAttorney, the respective duties of DistrictAttorneys and County Attorneys shall in such counties 'beregulatedby the Legislature. The Legislaturemay provide for the election of District Attorneys in such districts,
as may be deemed necessary, and make provision for the compensationof District Attorneys and County Attorneys. District Attorneys shallhold office for a term of fouryears, and until their successors have qualified."

The question of whether the county or district attorney under the provisions of Article 339 has a concurring right with the county treasurer,where the commissioners' court is otherwisedisqualified to act, to Initiate such a suit as is contemplatedhere was resolved in Bexar County v. Davis, 223 S.!J.558, (Civ.App. 1920, error ref.)Honorable Steve Hurt, page 6 (1fiq-1227)

In that case the District Attorneyhad sued the county judge on the behalf of the county for .noney he had allegedly unlawfully appropriated. The court specificallyheld that
a county judge is not such an officer as is "intrusted with the collectionor safekeeping of any public funds." In the course of the opinion the court says further that no other member of the commissioners'court is such an officer. In addition the court held that Article 339 does not empower a district attorney to bring an action against a county judge for money appropriatedas salary from county funds in the safe keeping of the county treasurer. It was furtherheld in the same case as follows: "TheCounty Treasurer is not only the sole custodianof the money of the county,but it is his duty to 'directprosecutions according to law for the recovery of all debts that may be due his county, and superintendthe collection thereof.'"

Although other civil statutesauthorize.suit by the county attorney on behalf of the county in particular -cases,as for exampleArticle 6716Vernon's Civil Statutes (Institutionof suit against a treasurerwho has diverted county or city funds),we have been unable to find specific authority or direction for the bringing of a civil suit of the nature here involved.

Furthermore,because a majority of the incumbent County Commissionerswere holding their respective offices during the period of time the alleged illegal acts were committed, it is our opinion that since these commissioners
are alleged to be in pari delict0with the named former Countyofficialsfhe ;wrpI are thereforedisqualified to bring suit under the 1

auth rity of Hoffman v. Davis and the other authoritiesdiscussed above. It is our opinion that the incumbentCounty Treasurer is the officialwho has the duty and authority tobring the suit.

S UMM,A R Y

Under the alleged facts thepresent county treasurerhas the exclusiveduty and authority to institute Suit to recover moneys unlawfully caused to be paid out of county funds by the named officials.
Very trulyyours,

WILL WILSON Attorney General of Texas.‘r‘

.

Honorable Steve Hurt, page 7 ('~~~~~-1227)

1RW:lgh:kh

APPROVED: OPINION COMMITTEE W. V. Geppert, Chairman BJ I. Raymond.Williams, Jr. Assistant

Riley Eugene Fletcher Elmer McVey John Leonarz Vernon Teofan

R,vEY:rED

FOR THE ATTORNEY GENERAL BY: Houghton Brownlee, Jr.