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                              THE       ATMBWNEY               GENERAL
                                              OF TEXAS
                                          AUYTIN.   -rRxAe 18711

                                             December    10, 1970


             Hon. Betty Dohoney                          Opinion    No. M- 744
             County Attorney
             Hill County                                 Re:   Whether the Camniaaionera’
             P. 0:Box      534                                 Court of a county has the
             Hillaboro,     Texas    76645                     authority  to prohibit    the
                                                               District  and County Attorney
                                                               from using office    apace pro-
                                                               vided them in the courthouse
             Dear Mrs. Dohonegr                                in the private   practice    of law.
                          Your recent    letter    requests  an opinion     from this office
             concerning    whether the Conmissioners          Court may prohibit      County or
             District   Attorneys   i’ra ualng public       facilities    for private    law
             practide,   .auch as oi’fice     apace in. the courthouse     as provided     them
             by the C~iaalonera        Court for the discharge         of their offlclal      duties.
                             Art+le     V, Section   18 of the Texas Constitution,       provides:
                             II ;
                               . . . The County Commissioners      so chosen
                      with the County Judge,. as presiding       officer,    shall
                      c-pose      the.County   Cbrmaiaaionera Court, which shall
                      exercise      such pouera and jurisdiction    over all county
                      bu81nea8,      as is conferred   py this Constitution     and
                      the laws of th$ State,        or as may be hereaiter    prea-
                     .cribed.       . . .
                        Article     2351, Subdivision    7, Ifernon’a Civil   Statutes, makes
             it the duty of the Commissioners         Court to “provide and keep in repair
             court houses,    jails   and all other necessary     ~public buildings.”
                          Article    1603,   Vernon’s   &vii   Statutes,    enacted    in 1879,      pro-
             vides    as tollowar
                            “The county cownlaaionera     court of eaoh
                     county,   as soon as practicable     after     the eatabllah-
                     ment of a, county seat,    or after   its removal fran
                     one place to another,    shall   provide     a court house
                     and jail   for’%he county,   and offices       for county
                     officers   at such county seat and keep the same In
                     good repair. ”                             , .


                                                    -3622-
Mrs.   Betty        Dohoney,   page 2              (M-744)




           In  construing   these conatlQitiona1    and statutory   pro-
vlalona  quoted above, the Court In Dodaon v. Marshall,         118 S.W.W
621 (Tex.Clv.App.     1938, error diem.),    stated the following:
                       we think It clear that the conunls-
               I,


       sloners -1. court
                     *     is charged with the duty of pro-
       viding a courthouse      and has at least  implied  au-
       thority    to replate    the use thereof  within reasonable
       bounds.      . . .
            Article      3899b, Vernon’s      Civil   Statutes,    first   enacted in
1929, la a special        statute     and the latest    atatute    concerning      the
duty and authority        of the Commlaalonera        Court to furnish       office
apace and other facllltles            to county and District       Attorneys.        As
such, it would control          over the earlier      general   statute,     Article
1603, to the extent         of any conflict.        In Section    1, it is provided
that “suitable      offices     shall   be provided”    for certain      enumerated
officers,   none of which include          the County or District         Attorneys.
               Section     2   QrovideS   as follows:
               “Suitable   offices    and stationery     and blanks
       necessary     in the performance       of their duties    ma
       ln~the,dlacretlon        of the Commissioners      Court -#
                                                                 a so
       be furnished      to resident    District    Judges, realdent
       blatrict     and County-.Attorneya,       County Superintendents
       and County Surveyors,         and may be paid for on order of
       the Commlaalonera        Court out of the County Treasury.
       (F3nphaala SUQQliSd . )
           This office Inter rated the above statute                 In Attorney Qen-
eral’a  Opinion O-2384 (194Op, add reseed to the then                County Attorney
of Martin County as follows:
              “Under Section      2 of Article     ,3899b, as amended,
       the Commlaalonera       Court is not required        to furnish
       suitable     offices,   furniture,    stationery     and blanks
       necessary     In the performance      of the duties     of the
       County Attorney,       but such matters       are left  entirely
       within    the discretion      of the Commlaalonera      Court.”
This office  further    rendered  a almllar     opinion   to the County Attorney
of Taylor County;.    Attorney   General Opinion No. o-2963 (1940) and also
rendered a almllar     statutory  construction      as regards   the County Sur-
veyor in Opinion No, O-3229 (1941).          No court declalona     to the con-
trary have been found, and the Legislature           has since met many times
in the subsequent    thirty-year   period    without    changing the statute   in

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Mrs. Betty    Dohoney,    page 3          (M-744)


this regard.        Under these circumstances,   the Attorney  General’s
construction      will usually   Drevail  and the Lenlslature  Is oreaumed
to have had such construction’        In mind in amending the statute    being
construed.       Iabell  v. Ckalf Union 011 Co., 147 Tex. 6, 209 S.W.2d
{tg48J66     (lgw).     Thomas v. Oroebl, 147Tex.     70, 212 S.W.W 625
        .
               In Tarrant County v. Rattlkln          Title    Co., 199 S.W.2d 269
~Tex.Clv.Apo.~f,           no writ).      the Court denied the riRht of the
county to iease-or-rent          office     apace in the courthouse        to an ab-
stract    company.     It said,     in part:
               II
                . . . To allow the Commlaalonera’            Court to
       lease or rent office         apace to private       enterprise
       which was originally         erected     for the use of public
       office,    would be placing        the Commlsalonera’       Court
       and private     enterprise      In the relation      of landlord
       and tenant,     and in a sense would be applying             public
       property    for crlvate      use , which Is against       the laws
       of, oup State.
In adopting    the    holding by the Supreme Court of Tennessee,            Shelb
                        Abstract Company, 140 Tenn. 74, 203 S.W.            33d918),
                                 a Court of Civil  Appeals quoted           therefrom,

            “In the absences of statutory       authority    no
      part  of the rooms In current       use.  . . and as a
      part  of a courthouse    may be leased     to be used
             for private    purposes.     County buildings
      ini their equipment are public .property held by
      the County, but in trust        for      public use.      7
      R.C.L. p. 948; /‘Fx rel.               v. Hart, 144 Ind.
      107, 43 N.E. 7,33      L.R.A.       , and note; flown of7
      Decatur v. DeKalb County, 130~ Qa. /w27,            4X8, 61-
      S.E. 23.”

In accord,   see     14 Am.Jur.2d 208, Counties, Sec.         36; 15 Tex.Jur.2d
310, Counties,       Sec. 84. Oodley v. Duval County,         361 S.W.ti 629 (Tex.
Clv.App.   1962,     no writ!.
           In Dodson v. Marshall,     aupra, the Court at page 623, held
that the Comm~salonera’ Court riad dlacretlonars      Dower to nennlt a
cold drink stand to be operated      In an un-used ilcove  in the rotunda
of the courthouse   for a stipulated    rental,  yhere the operation  of the
stand did not Interfere   with the proper use of the courthouse      and It

                                     -3624-
Mrs.   Betty     Dohoney,   page 4       (M-744)


was “a necessary       convenience  Incident     to the   carrying   on of the
county’s bualneaa       In the courthouse.”
                To determine   whether the law had been violated.        the  Court
suggested       a test:    “Has there In fact been such a diversion         of a
material       part of the premises    as to interfere with the use        of the

mlaalonera ’ Court, that         . . If It appears that         the ccurt la ex-
ercising  a reasonable   dlacf;etlon   in this respect,         Its decisions
ought not to be set aside.
             The above holding    recognized,     however, that If the Com-
mlaalonera’     Court should permit the apace to be used in such a
manner as It would “unlawfully        Interfere     with the right    of the
court    to regulate   the use of the courthouse”        or for purposes    other
than county purposes,       there might be a clear abuse of discretion.
“Eut so long as there la a reasonable           exercise   of the discretion
vested In the Commlaalonera’       Court In a matter within        Its jurls-
diction,    that couf;t alone has the right to determine         the policy     to
be pursued.     . . .     118 S.W.2d 624.

             In view of all of the foregoing,       we have concluded       that
while the Commlaslonera’       Court la authorized     to furnish    office    space,
It la not required      to, do so, and may, In Its discretion,        refuse     to
furnish    courthouse   office  apace to County or District       Attorneys,
upon a determination       as a fact,  that there has been by them such a
diversion     (through their   pursuit  of the private    practice? of law) of
a material     part of the premises    as to interfere    with   the use of
such property      as a whole for the public    purposes    for which It Is
Intended.
           This office,    however,   cannot determine    questions   of fact;
and since such a determination      Involves   the exercise    of dlacretlon
by the Commlaalonera’     Court and the reaolutlon     of a fact question,
we are without  authority    to advise   whether or when such Office space
la being so used.
          We also observe    in this connection     that        District    and County
Attorneys are not prohibited    by law from engaging            in private    practice,
and the Commlaaionera’  Court la without     authority          to prohibit    such
practice,      ‘i ~
                             SUMMARY
            The Commlaalonera’       Court     Is authorized but
       not required to furnish       office     apace In the

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               Mrs. Batty   Dohoney,   page 5        (M-744)

                                                        .
                     Courthouse    and equipment to County and District
                     Attorneys    and may cease ~rnlahlng       the same, in
                     their discretion,       which msy include   their de-
                     termination    as a fact that there has been such
                     a diversion     (through their pursuit     of the private
                     practice    of law) of a material     part of the premises
                     as to Interfere      with the use of such property     as a
                     whole for the public purposes        for which that property
                     la Intended.
                           The Commlaalonera'     Court, however, may not pro-
                     hibit  Mstrlct     and County Attorneys   from engaging in
                     the private    practice  of law




               Prepared by Austin C. Bray
               Aaalatant  Attorney General
                         ..G
               APPROVED:~
               OPINION COMMITTEE       '
           Kerns Taylor,  Chairman
           W. E. Allen,  Co-Chalrpran            -
           J. C. Davis               ,,.
           Gordon Case
           Roger Tyler
           Houghton Brownlee
               MEADEF. GRIFFIN
               Staff Legal Aaalatant
               ALFREDWALKER
               Executive Aaalatant
               NOLh WHITE
               First Aaalatai~.




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