                                                          R-443




l,CE ,>.\SIEI.                               .&I ,,y&s   -de+-
TORSPY
     ,iK.~~",\l.             June 2, 1547
                                             &&&L.
                                                ;
     Hon. Wayne L. Hertman      Opinion No. V-232
     County Attorney
     DeWFtt County              Re : Authority of Commls-
     Cuero, Texas                    sioners’ Court to re-
                                     fund attorney’s fee
                                     paid by a commls-
                                     sioner in defense of
                                     an actIon for damages.
     Dear Mr. Hartman:
               Yours recent request for an opinion of this
     Department Is substantially as follows:        _

               “Several months ago a $40,000.00
          damage suit was flied against the Commis-
          sioner of Precinct.No. 1, Dewitt County,
          Texas, individually, for alleged negli-
          gence in failing to repair a county bridge
          located in his precinct, which negligence
          is alleged to have proximately caused the
          death of a school boy killed while travel-
          ing across said bridge. The bonding com-
          pany which furnished said CommLssioner’s
          bond was joined in said suit. After said
          Commissioner had been duly served with
          process in said suit, he employed and paid
          attorneys to represent him in his indivi-
          dual defense, and also, in accordance with
          his contract with the bonding company, he
          employed and paid an attorney to represent
          the bonding company in its defense. Sub-
          sequently, by amended petition, DeWItt
          County, Texas was made a party defendant
          in said suit, and the Commissioners’ Court
          employed the attorneys representing the
          said Commissioner of Precinct No. 1 indlvl-        -
          dually and the attorney dmployed by him to
          represent the bonding company, to assist
          the County Attorney in defending the suit
          against Dewitt County.
.




    Hon. Wayne L. Hartman - Page 2


              "The said Commissioners' Court is now
         desirous of refunding to the Commissioner
         of Precinct No. 1, o,ut of County funds, the
         sum he has paid to his attorneys and to the
         attorney for the bonding company, Ln addi-
         tion to paying said same attorneys a fee
         for representing the County, if this can be
         legally done. . .
              "1. In view of the fact that Dewitt
         County itself is now a party defendant in
         said suit, can the Commissioners' Court of
         Dewitt County legally refund to the Commis-
         sioner of Precinct No. 1, out of County
         funds, the sum he has paid his attorneys to
         represent him individually in said suit?
              "2. In view of the fact that Dewitt
         County itself is now a party defendant In
         said suit, can the Commissioners' Court of
         Dewitt County legally refund to the ComQis-
         sioner of Precinct No. 1, out of County funds,
         the sum he has paid an attorney to represent
         the bonding company, said payment having been
         made in accordance with said Commissioner's
         contract with said bonding company?"
              Volume 11, Texas Jurisprudence, page 575,   reads
    as follows:
               'The commissioners' court has power to
         employ attorneys to assist the regular con-
         stituted officers of the county in the prose-
         cution 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 power to deprive the
         county attorney of his rightful authority in
         this regard. The employment of counsel is
         restricted to special cases where the ser-
         vices of an attorney are required; nor has
         the court power to mske an order which will
         warrant the payment of county money to an
         attorney for services neither required nor
         performed. Adams vs. Seagler, 250 SW 413,
         Gibson vs. Davis, 236 SW 202, Terre11 v~s.
         Greene, 31 SW 631, Glooms vs. Atascosa
         County, 32 SW 188."
Hon. Wayne L. Rartman - Page 3


          In the case of Bryan v. Liberty County, 299
S.W. 303, the Court stated as follows:
          "It has long been the law in Texas
     that a county is not liable In damages for
     personal injuries sustained by one in con-
     sequence of the tortious or negligent acts
     of its agents, servants, and employees,
     unless such liability be created by statute,
     either In express terms or by implication.
     Heigel v. Wichita County, 84 Tex. 392, 19
     S.U. 562, 31 Am. St. Rep. 63; Walton V.
     Travis County, 5 Tex. Civ. App. 525, 24 S.W.
     352; Crause v. Harris County, 18 Tex. Civ.
     App. 375, 44 S.W. 616; Riley v. Coleman
     County (Tex. Civ. App.) 181 S.W. 743; Ger-
     hart v. Rarrls County (Tex. Civ. App.) 244
     S.W. 1103; Harris County v. Gerhart, 115
     Tex. 449, 283 S.W. 139. All these author-
     ities sustain the counter proposition ed-
     vanced by defendant in error here that a
     county Is not liable In damages for personal
     injuries negligently Inflicted by the county's
     agents, servants, and employees, in the ab-
     sence of e statute creating such liability in
     express terms or by implication."
          This Department, in en opinion numbered O-4955,
dated November 17, 1942, stated the rule in this nmnner:
                 the Commissioners1 Court has the
     power and authority to employ attorneys In
     the prosecut'ionof its claims and suits and
     pay for such services out of the General Fund
     of the county where the county, as a whole,
     Is interested and effected In such proceed-
     ings. "
          In your factual situation the Commissioner of
Precinct No. 1, In defense of a negligence suit,   employed.
counsel in his Individual capacity to defend the same.
Subsequently, the county was joined and retained the same
counsel to assist the attorney for the State in the re:
presentation of the interests of the county.    Applying the
rule that a county IS not liable for the tortious acts of
Its employees, your first question should be answered in
the negative. Despite the fact that the county is later
made a party to the lawsuit furnishes no legal basis for
the refund of money paid by a colrPnIssioner in his Indlvi-
_   . .   ’




              Hon. Wayne L. Hartman - Page 4


              dual capacity. However, since the suit against the
              county affected the county as a whole, counsel may be
              employed and paid for by the county to assist the
              County Attorney.
                        In construing the authorities, the dis-
              tinction is drawn between the commissioner on the one
              hand acting In his Individual capacity and,~
                                                         the Com-
              missioners’ Court acting in the interest of the county
              es e whole. Therefore, In view of this distinction
              end the fact that a county Is not liable for the tor-
              tlous acts of its employees, your second question
              should also be answered In the negative.
                                       SIJMMARY
                       A county connnissionerwho is sued lndivl-
                  dually in a negligence action msy not be re-
                  imbursed by the Commissioners~ Court for
                  attorne,y’sfees expended by him. The Court
                  may employ attorneys to defend a suit brought
                  against the county and pay for such services
                  out of the General Fund of the county where    ,
                  the county, as a whole, .is Interested and
                  affected by such proceedings.
                                               Yours very truly
                                           ATTORNEY GENRRAL OF TEXAS



                                                  Burnell Waldrep
              BU:djm                              Assistant




                                                  ATTORNEY QXVERAL
