                                   The Attorney         General of Texas

  JIM MATTOX
                                                    August 31, 1984
  Attorney General



  Supreme Court Building
                                 Honorable George J. Filley, III      opinion No. ~~-198
  P. 0. Box 12546
  Austin, TX. 76711. 2546
                                 Criminal District 1.1,torney
  512/475-2501                   Victoria County Coul,thouse          lb:   Whether  certain payments
  Telex 9101874-1367             Room 341                             to a district attorney for work
  Telecopier   512/475-0266      Victoria, Texas   ;'i
                                                     901              rendered in his private capacity
                                                                      are proper
  714 Jackson, Suite 700
  Dallas, TX. 75202.4506         Dear Mr. Filley:
  2141742-8944
                                      You advise UE that the commissioners court of Victoria County
  4824 Alberta Ave., Suite 160
                                 authorized a formcc criminal district attorney of that county to
  El Paso, TX. 79905.2793        perform legal serv:.ces in his private capacity in connection with
  91515333464                    certain condemnation matters. You inquire as to the propriety of
                                 payments made from the county's road right-of-way fund to the criminal
                                 district attorney :inaddition to the regularly budgeted county salary
-01      Texas, Suite 700
                                 paid him for the pr,cformanceof his statutorily required duties. The
      mston, TX. 77002-3111
  7131223.5666
                                 legal services described to us were performed in condemnations that
                                 resulted in acceptr:r.ce
                                                        of the award of the special commissioners.

  806 Broadway, Suite 312             The additional payments were paid to him in his capacity as a
  Lubbock. TX. 79401.3479        private attorney arlifor services rendered "on county time." You also
  8061747.5238
                                 inquire as to the county's remedy if the payments were improper. We
                                 conclude that the county's contract with the criminal district
  4309 N. Tenth, Suite S         attorney and the :?ayment for legal services in the condemnation
  McAllen. TX. 78501-1685        matters were not imr'roper.
  5121682.4547

                                      In Victoria CclL.nty,
                                                          the criminal district attorney serves as both
  200 Main Plaza. Suite 400      county attorney and district attorney. V.T.C.S. art. 37&k-59. A
  San Antonio. TX. 782052797     county commissionerricourt has authority to retain private counsel in
  5121225.4191                   the prosecution of civil suits involving county matters and may employ
                                 the county attome:r to represent the county in any civil matter where
  An Equal Opportunity/
                                 such representation is not prohibited by law.       See Lattimore V.
  Affirmative Action Employer    Tarrant County, 124 S.W. 205 (Tex. Civ. App. - FortWorth 1909, no
                                 writ); Attorney General Opinion O-1040 (1939). Generally, a county
                                 attorney is not required by law to represent the county In condemna-
                                 tion proceedings filed by the county in the name of the county or the
                                 state and may contract with the commissioners court to perform such
                                 legal service. See Attorney General Opinions WW-929 (1960); O-1164
                                 (1940); O-1040 (i%).    Article 6674w-3, section l(b), V.T.C.S.. pro-
                                 vides that the county attorney or criminal district attorney has the
                                 duty to prosecute LI condemnation suit brought by the State Highway




                                                          p. 871
                                                                         .


Honorable George J. Filley, 711 - Page 2 (JM-198)




Commission in the name of tte state to acquire highway right-of-way,
if the attorney general directs the criminal district attorney to do
so. That statute is not aFFlicable, however, to the facts presented
to us since the condemnatior,proceedings in question were filed by the
county in the name of the state.

     A county attorney may :Il)t
                               contract to receive extra compensation
from the county for perforrljaga statutory duty. See V.T.C.S. art.
336;  Attorney General Opin:.ons JM-14 (1983); O-2610 (1940). The
statutory duties of the crisinal district attorney for Victoria County
are prescribed by article 326k-59, section 3, V.T.C.S., which provides
as follows:

          [it] shall be the! duty of the Criminal District
          Attorney of Victo:r:laCounty or his assistants as
          herein provided to be in attendance upon each term
          and all sessional of the district courts of
          Victoria County an<:all of the sessions and terms
          of the inferior courts of Victoria County held for
          the transaction of criminal business, and to
          exclusively reprel!c:ntthe State of Texas in all
          criminal matters pending before said courts and to
          represent VictoriilCounty in all matters pending
          before such court3 and any other court where
          Victoria County h;; pending business of any kind,
          matter  or interczt, and in addition to the
          specified powers given and the duties imposed upon
          him by this Act all such powers, duties, and
          privileges within 'Jictoria County as are by law
          now conferred, or which may hereafter be conferred
          upon the district and county attorneys in the
          various counties and judicial districts of this
          state. (Emphasis added).

     It is well establishec!that up to and including the award of
special commissioners, a corli,emnation
                                      proceeding is an administrative
and not a judicial proceediriE,.Lo-Vaca Gathering Co. V. Gardner, 566
S.W.2d 366, 368 (Tex. Civ. Igp. - San Antonio 1978, no writ). The
court in Grant V. United Gas Pipeline Co., 457 S.W.2d 315, 319 (Tex.
Civ. App. - Corpus Christ1 1570, writ ref'd n.r.e.), held that

          it is well settled that the filing of the state-
          ment in condemnation, the appointment of the
          commissioners, thf! filing of the commissioners'
          award, and the fi:L:lngof objections to the award
          of the commissionec~ in eminent domain proceedings
          are administrative, and not judicial proceedings.
          The jurisdiction I)::the court, as a court, does
          not   attach   unttl   the   objections   to   the




                                 p. 872
‘   .




        Honorable George J. Filley, :[I1- Page 3   (Jh-198)




                  commissioners' itward are     submitted to     and
                  determined by the I:ourtas a judicial tribunal.

        Another court of civil apI)cals stated that "an eminent domain pro-
        ceeding does not become a civil case pending in a court until a party
        to the proceedings has filed his objections to the commissioners'
        award." Lemmon v. Giles, 342 S.W.2d 56, 59 (Tex. Civ. App. - Dallas
        1960, writ dism'd). Until the filing of objections by a dissatisfied
        party, condemnation proceedings are only administrative proceedings in
        which the judge acts as an administrative agent, not as a judge of a
        court performing judicial duties in a pending lawsuit. Henderson v.
        Texas Turn Ike Authorit , 308 S.W.2d 199, 201 (Tex. Civ. App. - Dallas
        w                        als; Pearson v. State, 315 S.W.2d 935 (Tex.
        1958).

             While the criminal dis,:rictattorney for Victoria County has a
        statutory duty prescribed by article 326k-59 to represent Victoria
        County in all matters pendxg before the courts where the county has
        "pending business of any k:.rtd,matter, or interest," we believe that
        the legal services for which the criminal district attorney was paid
        constitute administrative p::oceedings and not judicial proceedings,
        and were not matters    pentli.ngbefore the courts. Accordingly, we
        conclude that the criminal district attorney was not performing a
        statutory duty when he performed the services described to us and that
        it was not improper for the commissioners court to contract with him
        for such services in his cap;nzityas a private attorney.

             We note, however, that effective September 1, 1983, the criminal
        district attorney in Victoria County became a "district attorney"
        within the meaning of the P:rofessionalProsecutors Act, which provides
        that a district attorney governed by the act may not engage in the
        private practice of law. Vr:.C.S. art. 332b-4. 02, 95(a).

             You also raise a question of the propriety of services being
        rendered "on county time." We recently concluded in Attorney General
        Opinion JM-22 (1983) that public officers are not required to observe
        specified working hours. The compensation attaching to a public
        office is incident to the title to the office and not to the
        performance of any particulsirduties. Uhr v. Brown, 191 S.W. 379, 383
        (Tex. Civ. App. - San Ant,cnio 1916, no writ); Presidio County v.
        Walker, 69 S.W. 97, 99 (l'tx. Civ. App. - 1902, writ ref'd). Of
        course. all district and cc'tntyattorneys may be removed from office
        for incompetency or officia:.misconduct, which includes the "wilful or
        corrupt failure, refusal or neglect of an officer to perform a duty
        enjoined on him by law." V.T.C.S. art. 5973; see V.T.C.S. arts.
        5970-5972; art. 332d.




                                          p. 873
Honorable George J. Filley, III - Page 4    (JM-198)




                             SUMMARY

             It was not improper for the commissioners court
          of Victoria County to contract with and compensate
          the criminal distr'ictattorney for legal services
          in certain conderrLationmatters that were per-
          formed in his capacity as a private attorney.




                                       J b
                                       Very truly your


                                             4
                                       JIM     MATTOX
                                       Attorney General of Texas

TOM GREEN
First Assistant Attorney General

DAVID R. RICHARDS
Executive Assistant Attorney General

Prepared by Nancy Sutton                                           -
Assistant Attorney General

APPROVED:
OPINION COMMITTEE

Rick Gilpin, Chairman
David Brooks
Colin Carl
Susan Garrison
Jim Moellinger
Nancy Sutton




                                   p. 874
