December 19, 1961 

Honorable Steve Hurt 

County Attorney 

Hale County 

Plainview, Texas 

Opinion No. 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 opinion with 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 commissioners under 

the following alleged facts: 

" Taxpayer has filed an action in the 

64th District Court against the above named 

county officials and former county officials. 

The taxpayer has 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 expense without 

first incurring such expense; in county 

traveling expense allowances while using 

a county furnished automobile; out of 

county traveling expenses by 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 taxpayer plaintiff has made demands 

upon the county attorney to bring suit on 

behalf of the.county against the defendants 

for recovery of all the alleged unlawful 

expenses. 

"All of the alleged expenditures appear 

to have been made by the County Treasurer at 

the direction of the commissioners court. 

The present County Treasurer was not the 

County Treasurer at the time said expenditures were made." 

Also, in a,telephone conversation with this 

office on December 15, 1961, you made the following statement: 

"A majority of the incumbent county commissioners who are presently charged with dereliction of duty were holding their respective 

offices during the period of time the alleged 

illegal acts were committed." 

In addition to the foregoing alleged facts you 

have submitted questions as follows: 

"Does the county attorney have 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 county moneys 

unlawfully caused to be paid out of county 

funds by the named officials. 

"If the county attorney 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 county attorney 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? citizen has the right to 

enjoin public 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) Looscan v. County of Harris, 58 Tex. 

Carroll v. Williams, 109 Tex. 155, 202 S.W. 

However, it Is equally well settled that a taxpaying citizen does 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 general propositlon.of law the commissioners' 

court is, charged with the duty and authority to bring a 

suit on behalf of the county for the recovery of moneys 

due it. In Terre11 v. Greene, 

(1895) the~court stated: 

88 Tex. 539, 31 S.W. 631 

" .There are many instances in which 

it might.be necessary to bring suits in the 

name of the county, or in which suits might 

be instituted against the co#nty not embraced 

in the terms of Article 260. In such cases 

the commissioners' court would have the right 

to control the institution of such suits, 

because it has not been committed by 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 certain moneys alleged to have been 

illegally paid 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: 

” . . .The Commissioners' 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 to be 

In the name of and for the benefit 

Instituted 

of the 

county, and except Where a concurrent right to 

do the same thing, or where an exclusive right 

in a specified case or cases is conferred upon 

some other tribunal or some other officer of 

the government, the Commissioners~' Court must 

be deemed to be the quasi executive head of 

the county, vested with exclusive power to 

determine when a suit shall be instituted in 

the name of and for the benefit of the county." 

‘(Emphasis added) See also J. R. Phillips 

Investment Company v. Road s, 

172 S.W.2d 707 (Civ. App. 1943, error ref.\ 

Attorney General's Opinion No. o-6543, (1945). 

However, where the suit is due to the dereliction 

of a mojorlty of the members of the Commlssionerst Court, 

it is the duty of the County Treasurer under the authority 

of Article 1710 Vernon's Civil Statutes to institute the 

proper suit or suits to recover,moneys due the county. 

Hoffman v. Davis, supra; Attorney Generals Opinion No. 

O-2117 (1940); Attorney General's Opinion No. O-66 (1939). 

Article 1710 Vernon's Civil Statutes provides as follows: 

"The County Treasurer shall keep a true 

account of the receipts and expenditures of 

all moneys which shall come into his hands 

by virtue of his office, and of the debts due 

to and from his county; and direct prosecutions 

according to law for the recovery of all debts 

that may be due his county, and superintend 

the collectlon thereof." 

In,the Hoffman v. Davis case the court cited 

Looscan v. Harris County, supra, and stated: 

"This court, after determining that 

there was no statute authorizing 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) 

sionerst Court and the county treasurer are 

vested by statutes with 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 District Attorney by Article 

339 the concurring right . . . a question which 

we need not determine." 

The general authority of a county attorney, 

in so far as civil actions are concerned is derived from 

the Constitution and the statutes enacted by the Legislature. 

The constitutional stipulation appears as Article V, Section 

21, Constitution of Texas: 

"A Zounty Attorney, for counties in which 

there is not a resident Criminal District 

Attorney, shall be elected by the qualified 

voters of each county, who shall be commissioned by 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 shall be a District Attorney, the 

respective duties of District Attorneys 

and County Attorneys shall in such counties 

'be regulated by the Legislature. The 

Legislature may provide for the election 

of District Attorneys in such districts, 

as may be deemed necessary, and make 

provision for the compensation of District 

Attorneys and County Attorneys. District 

Attorneys shall hold office for a term 

of four years, 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 otherwise disqualified to act, to Initiate 

such a suit as is contemplated here 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 Attorney had sued the county 

judge on the behalf of the county for .noney he had allegedly 

unlawfully appropriated. The court specifically held that 

a county judge is not such an officer as is "intrusted 

with the collection or safe keeping 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 appropriated as salary from county funds 

in the safe keeping of the county treasurer. It was 

further held in the same case as follows: "The County 

Treasurer is not only the sole custodian of the money of 

the county, but it is his duty to 'direct prosecutions 

according to law for the recovery of all debts that may 

be due his county, and superintend the collection thereof.'" 

Although other civil statutes authorize. suit by 

the county attorney on behalf of the county in particular 

-cases, as for example Article 6716 Vernon's Civil Statutes 

(Institution of suit against a treasurer who 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 Commissioners were 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 delict0 with the named former 

County officials fhe ;wrpI are therefore disqualified to bring 

suit under the auth 1 rity of Hoffman v. Davis and the other 

authorities discussed above. It is our opinion that the 

incumbent County Treasurer is the official who has the duty 

and authority to bring the suit. 

S UMM,A R Y 

Under the alleged facts the present 

county treasurer has the exclusive duty 

and authority to institute Suit to recover 

moneys unlawfully caused to be paid out 

of county funds by the named officials. 

Very truly yours, 

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.