                       February 3, 1950

Bonl William L. Taylor         Opinion No. V-995.
Prosecuting Attorney
Harrison County                Re: The authority of the
Marshall, Texas                    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:
           "(1) Can the Commissfonera'Court con-
      tract with attorneys to represent Harrison
      County during the taking of depositions be-
      fore any suit involving said county has been
      fFl.edand at a time whenthere is no absolute
      certainty that a law suit of any kind Fnvolv-
      ing said county will be filed?
           "Assuming that the answer to the first
      question is in the affirmative,
           "(2) Can the Commissioners'Court af-
      ter 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 performance of services
      by said attorney?"
            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,ingto the County Judge the firm
     ia; &ked to sit in on the hearings in behalf
     of the County with the understandingthatar-
     ;;;zmenta for attorneys' fees would be.made
          . No orders have been entered by the-
     Commissioners'Court relative to the employ-
     ment."
Hon. William L. Taylor, page 2   (V-995)


          It is stated in Vol'ume11 of Texas Jurlspru-
dence at page 575:
          "The commissioners'court has power
     to employ attorneys to assist the regular-
     ly 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 pow-
     er 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 v. Gresham, 220 S.W. 560
(Tex.Civ.App.1920,error ref), the court had before It
the question of whether the Commissioners1Court could
employ an attorney to represent the'countv in the build-
ing 03 a sea wall; It W&S said:
         "And if the commissioners1court thus
    had the broad power to construct this exten-
    slon of the sea wall, its like authority to
    ,enlistthe services of the appellee.tothat
    end would follow'as a necessary implication;
    that being deemed essential to the exercise
    of the power and dustyimposed 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-~
missioners1Court 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,fundof 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 CornmIssIonersCourt can con-
tract with attorneys to represent Harrison County during
the taking of depositions before any suit lnvolving.the
county has been filed Andyat a time when there is no ab-
solute 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;
                                  0 Tex. 575, 16 S.W. 440
  n&Q),   it is stated:
           "It may be that when a municipal cor-
      poration~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 execut-
      ed, and the corporationhas 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 municipal-
       ity 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 oom-
       mon honesty and fair dealing require that a.
       county or municipality.shouldnot be permit-
       ted to receive the.benefit of.money, property,
       or services, without paying just compensation
       therefor. Under such circumstances,a pri-
       vate 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 ser-
             vices performed, where no arrangementsas to the fee to
             be charged were made prior to the time of part perform-
             ance of the services by such attorneys.
                                   SUMMARY
                       The Commissioners'Court can contract
                 with attorneys to representHarrison Coun-
                 ty during the taking of depositions before
                 any suit involving the county has been fil-
                 ed and at 8 time when there Is no absolute
                 certainty that a law suit of any kind in-
                 volving 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.).
                             part of the semioes
                         After                    have been
                 performed by the attorneys the Commission-
                 hers'Court of Harrison County may enter an
                 order to pay the attorneys for the services
                 actually performed, even though no arrange-
                 ments 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,
                                                   PRICE DANIEL
             APPROVED:                          Attorney General
             J. 0. Davis, Jr.
             County Affairs Division
             Charles D. Mathews
_~           Executive Assistant                        Assistant
             BA:mw
