Hon. Hector F. Frausto   Opinion NO. c-247
County Attorney
Maverick County          Re:   Whether it would be proper~for a
Eagle Pass, Texas              County Commissioners Court to,,pay'
                               a fee to one of.its Commissioners,
                               which fee was allowed by a Dis-
                               trict Court, for the representa-
                               tion of an ~indigentin a felony
Dear Mr. Frausto:              case under the stated facts.
          Your recent request for an opinion from this office
stated the following, in part:
          "One of our County Commissioners, who is also
     a licensed,attorney was appointed by the District
     Court of Maverick County, Texas, to represent an
     indigent defendant. This appointment came prior to
     January lst, 1963, which was the day on'which this
     Commissioner qualified to serve as Commissioner.
         'Subsequent to January 1st 1963, the trial of
    the case was had in the District Court of Maverick
    County, Texas, and the Commissioner participated in
    the trial under the appointment, and represented the
    Defendant.
          "The District Court entered an order in the case
     allowing a fee of $25.00 to this Commissioner, in his
     capacity as attorney, for representing the indigent
     defendant under the Court appointment. This repre-
     sentation was in a felony case.
          "Before accepting payment of the $25.00 fee
     allowed to him by the Court, the Commissioner wants
     to be sure that his holding the office of County Com-
     missioner would not prevent him from lawfully accept-
     ing the fee from the County."
          As you also stated, Article 2340 of Vernon's Civil Stat-
utes, and Articles 371 and 373 of Vernon's Penal Code are relevant
to your request.



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Hon. Hector F. Frausto, page 2     (C- 247)


         Article 2340 reads as follows:
         "Before entering upon the duties of their office,
    the county judge and each commissioner shall take the
    official oath, and shall also take a written oath
    that he will not be directly or indirectly interested
    in any contract with, or claim against, the county in
    which he resides, except such warrants as may issue
    to him as fees of office. Each commissioner shall exe-
    cute a bond to be approved by the county judge in the
    sum of three thousand dollars, payable to the county
    treasurer, conditioned for the faithful performance of
    the duties of his office, that he will pay over to his
    county all money~sillegally paid to him out of county
    funds, as voluntary payments or otherwise,,and that he
    will not vote or give his consent to pay out county
    funds except for lawful purposes."
         Article 371 of Vernon's Penal Code reads as follows:
         "Any officer of any county or of any.city or town
    who shall contract directly or indirectly, or become in
    any way interested in any contract for the purchase of
    any draft or order on the treasury of such county, city
    or town, or for any jury certificate or any other debt,
    claim or demand for which said county, city or town may
    or can in any event be made liable, shall be fined not
    less than ten nor more than twenty times the amount of
    the order, draft, jury certificate, debt, claim or lia-
    bility so purchased or contracted for. Within the term
    'officerp' is included ex-officers until they have made
    a final settlement of their official accounts."
          Article 373 of Vernon's Penal Code reads as follows:
         "If any officer of any county, or of any city or
    town shall become in any manner pecuniarily interested
    in any contracts made by such county, city or town,
    through its agents, or otherwise, for the construction
    or repair of any bridge, road, street, alley or house,
    or any other work undertaken by such county, city or
    town, or shall become interested in any bid or proposal
    for such work or in the purchase or sale of anything
    made for or on account of such county, city or town, or
    who shall contract for or receive any money or property,
    or the representative of either, or any emolument or ad-
    vantage whatsoever in consideration of such bid, pro-
    posal, contract, purchase or sale, he shall be fined not
    less than fifty nor more than five hundred dollars."
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.




    Hon. Hector F. Frausto, page 3   (C-247)


              This department held in Opinion No. 012682 (1940),,
    that employment by the County Commissioners Court of the County
    Judge, who was a licensed attorney, as an attorney to represent
    the county in legal matters, would be violative of the County
    Judge's oath of office and also contrary to sound~public~policy.
    The reason for this holding presumably was because the Judge
    would receive compensation from the county for his services as
    an attorney.
              In a further opinion, No. O-4597 (l9+2), this office
    held that an Assistant County Attorney could not continue to re-
    ceive compensation from the county for services rendered under
    a contract entered into before he was appointed as Assistant
    County Attorney.
              Using the above quoted statutes as authority, it has
    been held in many cases that the Cotiissioners Court of a county
    may not employ a member of the Court, nor may the Commissioners,
    Court pay a claim presented by one'of the.members of the Court.
    The case of Starr Countv v. Guerra, 297 S.W.2d 379 (Tex.Civ.App.
    19561, held that the employment of a member of a Commissioners
    Court by the Court would be contrary to the poli;; githe law
    and the oath that each Commissioner must take.        DDa
    Stewart             66 s.w. 322 (Tex.Civ.App. 19021, the C&t
    held that the oath'taken by a County Commissioner would prevent
    the taking and enforcement of an assignment of a claim against
    a county because the Commissioner's pecuniary interest could
    have been directly opposed to the interest of the county under
    certain conditions. Under the holding in Cornutt v. Clav County,
    75 S.W.2d 299 (Tex.Civ.App. 19341, the payment to a former
    County Commissioner for the use of his truck for the period dur-
    ing which he was a County Commissioner was denied because his
    claim was "against the law and public policy." The Court further
    stated: "Such claims or purported contracts are void and unen-
    forceable."
              In regard to the actual appointment of an attorney for
    an indigent defendant, the procedure for such is found in Ver-
    non's Code of Criminal Procedure, Articles 494, 494a, and 49&b,
    as set out hereafter:
         Art. 4%.   in Dart.
              'Whenever it is made known to the court at an
         arraignment or any other time that an accused
         charged with a felony is too poor to employ a coun-
         sel, the court shall appoint one (1) or more prac-
         ticing attorneys to defend him."

                               -1199-
Hon. Hector F. Frausto,     page 4   (c-247)


    Art, 49ka. in   oart.

          Vection 1. Whenever the court shall
    appoint one or more counsel(s) to defend any
    person or persons pursuant to law in'any felony
    case in this State, each counsel may, at the
    discretion of the trial judge, be paid a fee in
    ;h;,sE of Twenty;fi;; Dollars ($25) per day fer
      a     v such aoo in d attornev is aCtUallV ins
    Jrial'court representing the person he has'been
    appointed to represent. Provided, further, that
    in all cases wherein a bona fide appeal is actu-
    ally prosecuted to a final conclusion, each ap-
    pointed counsel may be paid One Hundred Dollars
     ($100) for said appeal. Provided, however, on
    pleas of guilty before the court
    counsel may be paid Ten Dollars
    .The fee allowed counsel shall be Dai
    ~countv wherein such trial isheld and such um
    1%
     t be
     are availdab:e." (Emphasis added).
    Art. 49kb.
          UIFromand after the effective date of this
     Act, no elected county official in this State,
     who is a member of the legal profession and
     licensed to practice law in this State, shall be
     appointed by any court to represent any person
     accused of crime, and said official shall be un-
     der no duty to defend any such persons under such
     appointment unless he chooses to do so."
          Article 49&b has been thoroughly discussed in the case
of Williams v. State, 167 Tex.Crim. 503, 321 S.W,2d 72 (19581,
wherein it was held, at page 75, that a lawyer who is an elected
county official is not disqualified from accepting a coilrtap-
pointment as counsel for an indigent accused, if the elected of-
ficial chooses to serve, but that he & relieved of the duty of
accepting such appointment. The Court further specifically
stated, though, that it was 'I* . . not for this Court to decide"
whether such elected official serving as counsel for the indigent
accused could receive compensation from the county for his serv-
ices.
          In your specific case, any payment, such as that dis-
cussed, made to the Commissioner would be over and above his


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.   .




        Hon. Hector F. Frausto, page 5      (C-247)


        regular compensation, and, as shown by Article 494a above
        quoted, the payment would be for services rendered the defend-
        ant after the Commissioner had taken his oath, since su;zepay-
        ment would be for the actual time in the trial court.
        payment of the $25.00 would be a direct financial benefit to
        the Commissioner and would be paid out of county funds.
                  In view of the above cited authorities and the cases
        interpreting'the same, all of~which we feel are pertinent to
        your request, it is the opinion of this office that, while a
        lawyer who is a County Commissioner may accept an appointment
        from a district judge to represent an,indigent defendant, the
        County Commissioner may accept no compensation from the county
        he serves for any such representation. It is ouropinion that
        the receipt of such compensation would be contrary to the Com-
        missioner's oath, and against sound public policy.
                                  SUMMARY
                 An elected County Commissioner serving as
            counsel for an indigent defendant, even though he
            is serving by virtue of a court appointment under
            Article 494, Vernon's Code of Criminal Procedure,
            may not receive compensation for such service from
            the county which he serves as County Commissioner.
                                    Yours very truly,
                                    WAGGONER CARR
                                    Attorney General



                                    BY
                                            Edward P. Bolding
        EPB:wb                              Assistant
        APPROVED:
        OPINION COMMITTEE
        W. V. Geppert, Chairman
        Howard Fender
        Malcolm Quick
        Marietta Payne
        Joe Long
        APPROVED FOR THE ATTORNEY GENERAL
        BY: Stanton Stone


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