                                                                   ~-863


                                     OFFICE          OF                . -   ?03

                     THE A~ORNEY                      GENERAL
                                 AUSTIN.         TEXAS

PRICE  DANIEL
*TTmwzY GENERAL                      October   28,   1947

        .Hon. Ii.P. Guerra, Jr.                opinion NO. v-416
         Cohnty Attorney
         Starr county                          Re:   Authority of the Com-
         Rio Grande City, Texas                      mIssIonera Court to
                                                     retain counsel under
                                                     the submitted facts.
        Dear Sir:
                  We refer to your letter requesting an opinion
        as to whether the Commlssloners~ Court of Starr County
        has the authority to employ an attorney to draw up the
        necessary orders and instruments for redistricting of
        the commlssloners~ precincts, justice prealncts, and
        election precincts in actiordancewith an order passed
        by the Commissioners1 Co&t.   The County Judge and two  I
        commissioners voted in favor of the order and two com-
        mlssloners voted against said order.
                   You ask also whether the Commlsslonersg Court
         baa the authority to employ an attorney to represent It
         iu defense of a suit seeking to enjoin the carrying out
         of the above metitionedorder.
                  We quote.,thefollowing pertinent statutory
         provlslons:

                       "Art. 2343. Aby three members of the'
                  said court, Including the county judge, shall
                  constitute a quomnn for the transaction of
                  an; ~ufilness,except that of levying a county
                     .
                       "Art. 2351.    Each commlssloners court
                  shall:
                       "1. Lay off their respective counties
                  into prealncts, not less than four, and not
                  more than eight, for the elctlon of justices
                  of the peace and codstabltis,fix the times
                  and places of holding justices kourts, and
                  shall establish places In suoh precincts
                  where elections shall be held; and Shall
              . :_.:
            ,.~..:
;I T_ 104   L’. Ii. P. Guerra, Jr.
            Hon.                     -   Page 2               v-416


                 establish justices precincts and justices
                 Courts for the unorpnlzed counties as pro-
                 vided by law. . . .
                      "Art. 2933. Each commissioners court
                 may, If they-.deem:Xtproper,,at each August
                 term of the court, divide their respective
                 counties, and counties attached thereto for
                 judicial purposes+,into conven~entl.elec,t+n
                 precincts; 'each.of"which shall be diff~r,~nt;ly,:..I.:.
              . numbe~d.and~:descrlbed by natural or"art$fi‘-',:l.~.Y:
               .:-cLal~bcl?qlar$es
                                 or survey llpes,,by,anior;der..~'.
                                                                 ,:,
                 to..be:.enter@...upon
                                    the minutes of the court.
              .-',:They:j'~hal~..~~edlately
                                        thereafter publish
                 such'orddr'in'some newspaper In the county
                 for three consecutive weeks. If there be.no ~.:..
                 newspaper in the county, then such copy oft




                *~. ~.i~,,By;~~~~~~:~.os~
                                    +e+abave guoted,:@atatory Pro-
            visi~~p~~~~~~~.l~ylng,,~~.,~f~~~oijlio2L)~jopers!~~~~~~nct
                                                                  jus-
            tice,Yprecincts;.~~~d,:electSoq:jpirii!~inc‘t.~;:~~.~:.:~~t
                                                                 of.
            cbkiti"~6 'the'county. It%~f#~$Qp~$4~~      $ha,tin spe-
            clal matters where the interest of the county may require
            the.services of.an:attorney,~.a,,~o~~sgio~~r?.! Court has
            the'power and authorlty'to hire counsel to aidthe Com-
            missioners' Court In carrying out Its duties and also to
            represent..:the..c~.ya~~~-;~ln.,-l~~e~~I!thatl,dlrec.tly
                                                            concern
            county;business~.;~
                              .~aepls:.v,;;Selgler;:,~l12;  188; Gibson
                                                     $.I,:.W.
            V. Davis;,.,236.;'S,i:W.:
                                .202,,.:?12:;~1~.~~~~~ston
                                                     C.ounty.,v...Gresh-
            am, 220 $ic,rW,
                          260;.&i Tex,!c..Jyr,r,
                                             57& I .:
                                                    -:...;::-:
                       Under the facts presented In your Inquiry, the
            Commissioners'.Court,,elpploge,~,,an
                                              attorney-,@?draw the
            necessary.orders 'to carry out such changesand redls-
            trlcting of commlsslonerst precincts, justice precincts,
            and election p~ecincts.~.,,,Qln~e~:th~~Fo~,~ss~oners~Court
            had the.:powerto~~:laycff-!~uch,,pseqincts,~
                                                       italso had the
            authority:to:employ:an.attqrng.:~~oprepctre;the~  necessary
            orders to carry,..,out
                                :such-pov.ep.s:l.z,
                                               ,~:~.:"~
                                                    +:x::.,,r'.
                                                           .,:
                       :.. i : :1 i!.:
                      '.             .:,.
                                        :
                                        :.;;.j:.ii
                                            r.i,;;~;:‘
                                                   .:...
                                                      ?"::
                                                        i. ::
                               .>.:.. .::: ..,..,
                                                ,.
r




             ~,Bianswer to yoUr s&and question, we *efer
    gou tO'tha CaS8'of City "National.Bank ~of-dustinvi Pre-
    sidio.Cormty, 26 S..lf. 775, wherein i&was held that the
    CoImnissloners~CoUrt was authorized to employ counsel to
    *present the Commlssloners! Cow$ln     a suit which was
    brought against a coUnty jtige and commlssloners to en-
    join the alleged 1118g41 action of the Qnninlssldn8rst
    court in removing th8,COtltltyseat 6f Pr8Sldl6 OoUnty
    fr.amFt. Davis to Maris, ,The .CoUrt held that while the
    Suit was ~ncmlnallyagainst them as lndlvldasls, its de-
    siga'and effect was to control the performance of thelr
    official acts aUd was a matter of concert&to th8 county.
    We quote the following:
              w8 aXW'Clearly of oplnion~that the com-
         miSSlOn8rS.dld not~exceed th8ir powers in the
         employment of the attomeys, 86 far as the
         suit of Carothers against the.~oun~~{d~,
         and commlssloners was concerned.
         *as ncmlnally axsuit against them as lndlvi-
         duals, .ltsdesign and effect was to obstruct
         and~control the performance of the offlclal
         acta, and W8 are not disposed to hold %n such
         a case that they must,do nothing towards de.-~
         fending such suft,.or,~~must
                                    employ~caunsel at
         their own expense. They had power to employ
         couns81, and to defray the reasonable expense
         thereof out,of the county~funds."
               The Court also held that the right to employ
    counsel was not dependent upon whether the order of the
    ~Commlssloners~Court which was under attack'waa valid or
     Invalid. 'We quote,the .followlng:
              ItInOFd8r'tO assw8 a speedy, certain,
         and proper.declslon of the question, the com-
         mlssloners doubtless conoluded tbatboth the
         cases should be properly prepared and pre-
         sented, and we do not believe they abused
         their authority In employing counsel to ac-
         complish this. It was in pursuance of their
         duties to do SO. We conclude for these rea-
         rioasthat the employment of counsel In the
         case'of Stat8 v. Carothers was a legal exer-
        ,CiS8 Of pOW8r on the part Of the COUUtliSSiOn-
         ers, done in the lntezest and bus$ness of the
         county. These views are supported by author-
               Hornblower v. Duden 35 Cal. 664s Dos-
         ~~~*v. Howe, 28 Kan. 353;'Ellis v. Wasioe
                                                                   .


106.~tEon . ii.P. Gu&ra, Jr.   -   Page 4                v-416    .:


           Co., 7 Rev. 291. Thg validity of their acts
           was uot affected by th8 fact that th8Y were
           miStak8n. or that there was an adverse'deci-
           sion of the auestlon. It has been freauentlg
           held that the Dower cannot be measured bs.
           such a rule." (Emphasis ours)
                Although the suit In the Instant case was nomi-
      nally~against th8 two commissioners and the county judge
      Of Starr County who voted affirmatlv8ly to carry out such
      redlstrlctlng, it is our opinion that Its design and ef-
      feet was to Control the performance of the Commissioners~
      Court's offlclal acts and was a matter of concern to the
      county under the rule laid down In the Presidio County
      case. Therefore, the Commlssloners~ Court had the power
      to employ an attorney to represent them.,
                We note that according to your request, the
      county auditor has refused to approve the account pre-
      sented by such attorney for services rendered by hImto
      the Comalssionars~ Court bn.th8 ground tbat.the amount
      to be paid him Is exorbitant and excessive. This Is a
      fact question which this office cannot pass upon. ~Eov-
      ever,iit is our opinion that the CommissFoners' Court of
      Starr County had the power to employ couns.elto perfop
      the services mentioned in your request and to pay such
      attorney a~,r8aSonabl8sum.


                The Commlsslonersl Court la authorized to
           FJIIlplOy
                  COIlUSe t0 prepare n8c8SSal'yOl'd8r8t0
           carry out the redlstrlctlng of commlssloners~
           precincts, just108 preclncts'and electI+ pl'e-
           clncts, and to represent the CommIssIonera
           Court In an action brought by Individuals to
           enjoin the Court frca~puttlug Into 8ff8Ct'~SpCh
           r8dlst~lcting and pay such attorrMy~a'reasonabl8
           sum for the services rendered. Gelveston Co&ty
           v. Gresham, 220 S. W. 560; Qrooms v. Ati3scosa
           county, 32 s. w. 188.;City National Bank of AUS-
           tin v. Presidio County, 26 S. W. 775.
                                      Very truly yours
      APPROVED:~               ~~ATTORI@XGEBEFiALOFTXAS
                                                 ._



      ATTORHEY QBRERAL                           Assistant
      JRtdlm:it
