               TE-XE ATTORNEY       GI~CNEIRRAB~
                          OF TElxAs
                      AUSTIN. TRKAS 787ll


                                         March        4,   1975


The Honorable John F. Perry                                Opinion   No.   H-     544
County Attorney
Hopkins County Courthouse                                  Re: Liability   of a county for
Sulphur Springs, Texas  75482                              the expenses    of a court of
                                                           inquiry.
The Honorable Henry Wade
District Attorney
Sixth FloorRecords     ,Bldg.
Dallas. ~,Texas ,75202             ” ”
 z.

Gentlemen:

       .,Each of .you has requested our opinion on questions                    concerning
expenses growing out of a court of inquiry.

        Mr..   Perry,asks:
        .~..

                       Is a county obligated to pay reasonable    and
                  necessary’expenses     incurr.ed in pieparation   for
                                                                     *~
                  a. court of,inquiry?’
                                   ._




                       Is   the fee to the Court’Reporter   of’$L50   per page
                  for.an     original alld a copy a reasonable   fee, and a fee
                  which.    the District Judge,within his discretion    may
                  oidkr     the County Commissioners      Court to pay?

                      Must Dallas County pay for the services                   of a special
                  prosecutor  appointed by the judge of a court                 of inquiry
                  to conduct the court of inquiry?




                                          p:   2443
The Honorable     John F. Perry
The Honorable     Henry Wade        page 2         (H- 544)




        All of these questions relate to the authority of a district judge to
obligate the county to pay expenses growing out of a court of inquiry.    We
note that a county judge is also authorized to conduct courts of inquiry,
and thus the answer is applicable to either of these officials conducting
a court of inquiry in his capacity as a magistrate.    Code Crim. Proc.
art. 52.01.

         The rule is that the commissioners     court is the general business
and contracting agency of the county, and it alone has authority to make
contracts   binding on the county, unless   otherwise      provided      .-
by statute.   Anderson v. Wood, 152 S. W. 2d 1084, 1085 (Tex. 1941).        In
this case, the Texas Supreme Court held that the sheriff has no authority
to hire or fire necessary   courthouse and jail employees,     reversing   a
court of civil appeals’ determination   that the duty to have charge and control
of courthouse and jail includes the right to employ necessary       employees
to assist him.

           The following cases illustrate     the application of the rule:       Willacy
Countv v. Valley Baptist Hospital,         29 S. W. 2d 456 (Tex. Civ. App. --San
Antonio 1930, no writ hist.)      (county judge could not authorize employment
of other than county health officer for injured person without authority
from commissioners        court);   Collin Countv v. Schultz.       243 S. W. 609
 (Tex. Civ. App. --Texarkanz~l922.          no writ hist.)    (county school trustees
without authority $,o obligate county to pay ,for’school         redistricting    maps.
even though under’duty to redistrict);        Sparks v. Kaufman Countv. ,194
S. W. 605 (Tex.      Civ. App. --Dallas     1917, writ. ref’d) (county clerk without
authority to obligate county to pay for typewriter or stamps.               even though
necessaiy~ to conduct office);      American     Disinfecting    Co. v. Freestone
County,      193~s. W. ‘440 (Tex. Civ. App. --Dallas        1917, no writ hist.)
 (sheriff has no authority to obligate’county       to pay for disinfectant      used in
discharging     duties to keep courthouse      and jail sanitary);     Germo Mfg. Co.
v. Coleman County,        184 S. W.- 1063 (Tex. Civ. App. --Austin           1916. no writ
hist.)    (sheriff,  no authority tomobligate for disinfectant);      and Fayette County
v. Krause,      73 S. W. 51 (Tex. Civ. App.-1903,writ         ref’d) (individual
commissioners       may not obligate county on contract).




                                       p.   2444
The Honorable   John F. Perry
The Honorabie   Henry Wade        page 3     (H-544)




        In light of this rule and these authorities,  the answers to your questions
depend onwhether         statutory      authority exists for the judge conducting
the court of inquiry to obligate the county to pay the expenses in ques~tion.

         Chapter 52 of the Code of Criminal Procedure    authorizes the conduct
of courts of inquiry.   The only provision relating to expenses is article
52.09,  which states:

                    All costs incurred in conducting a Court of
                Inquiry shall be borne by the county in which said
                Court of Inquiry is conducted; provided,   however,
                that where the Attorney General    of Texas has
                submitted a request in writing to the judge for the
                holding of such Court of Inquiry, then and in that
                event the costs shall be borne by the State of Texas
                and shall be taxed to the attorney general and paid.
                in the same [sic] and from tbe same funds as other
                court costs.

         The word “costs” is not defined in the Code of Criminal Procedure,
but it is used in other provisions  of the Code to refer to statutor~ily prescribed
fees which may be taxed to a convicted defendant or the State such as those
allowed a.peace officer for summoning witnesses       and executing criminal
process.    See ec g., Code Grim. Proc. art. 53.01,      et seq., and Code Crim.
Proc.. arts 1001c1081.   The reference   in article 52.09 to the obligation of
the State to pay costs of courts of inquiry initiated by the Attorney General
“from the same funds as other court; costs” indicates that the Legislature
used the term “costs” in this limited sense.

          Thus, it is clear that a county is obligated   to pay the “costs, ” i. e.,,
statutorily  prescribed   fees incurred in conducting    a court of inquiry.

         Article 52.07 of the Code of Criminal Procedure    requires      that a
transcript   be made but does not specify a fee for such service:

                All evidence taken at a Court of Inquiry shall be
                transcribed  by the court reporter and proceedings
                shall be open to the public.




                                       p.   2445
The Honorable     John F. Perry
The Honorable     Henry Wade        page 4         (H-544)




        Article 11.07 of the Code of Criminal Procedure   requires a court
reporter to prepare a statement of facts in a hearing on a writ of habeas
corpus but,the statute fails to provide for payment in the case of an
indigent petitioner.   In Attorney General Opinion H-69 (1973) we held
that the court reporter is entitled to be compensated  by the county or
state for preparing the transcript.

         This office has held on several occasions        that the cost of preparing
a transcript  may be charged as an expense against the county by the
district or county attorney as a reasonable        expense necessary       in the proper
and legal conduct of his office under article 3899, section (b), V. T. C. S,
It has been so held in connection with transcripts         of an examining trial,
Attorney General,Gpinions,     M-303    0968) and V-976      (1949) ; at an inquest,
Attorney General Opinion V-538        (1948); before a grand jury, Attorney
General Opinion WW-1334       (1962); and of a tape recording of a radio pro-
gram, Attorney General Opinion WW-874            (1960).   As was stated in Attorney
General’Opinion    ,WW-1334 (1962): “Certainly      a diligent District Attorney
would want to preserve     such testimony for his own use in the event of
trial. ”

           In requiring a transcription   of the evidence in a court of inquiry
to, be made, the .Legislatureapparently        presumed     that it would beg of some
 value to the appropriate eprosecuting,officials,      and thus of benefit to -the’,
 county.     In our wnion   the Legislature   -intended,.the term, “costs” as used 8
 irrdrticle   52.09 &include,.the   ‘expense of preparing the transcript,which
‘is ~specifically~requiied   to be ~made by article- 52.07.                  ...I~


        Mr. Wade asks whether-a rate:of $1.50.,per            page foran   original
and copy of a transcript is a reasonable fee-which           the district judge may
order the commissioners    court to pay.

         The reasonableness     of a particular   rate is a question of fact which
we must decline to. answer.      However,     a similar question was considered
in Attorney General Opinion C-683 (1966).          The opinion held that in the absence
of a statutory provision   setting forth the amount to be paid for a transcript
required to be.prepared,at     county expense,     a reasonable   amount should be




                                       p.   2446
The Honorable     John F. Perry
The Honorable     Henry Wade        page 5      (H- 544)




paid. --See also Attorney General Opinion H-69 (1973); M-303             (1968);
M-248   (1968); C-785 (1966); WW-874 (1960) and V-976 (1949).

        Mr. Wade’s question refers to an order of the district court to
the county commissioners     court to pay the court reporter.    We observe
that the capacity in which the judge acted was not as district judge, but
magistrate,   and the only orders authorized to be issued in courts of
inquiry are subpoenas and arrest warrants.       See In re McClelland,    260
F. Supp. 182 (S. D. Tex. 1966); State ex rel. Richardson      v. Coleman County,
56 P. 2d 1023 (Wash. 1936); State v. Major,    192 P. 618 (Mont. 1920).     Cf.
In re Mercer   County Probation Department,     263 A. 2d 168 (.N. J. Super?X.  rApp.
Div. 1970).

         The magistrate    holding the court of inquiry is responsible        for the
proceedings,    and ,he is the appropriate    official to certify~what costs were
incurred in conducting the court of inquiry~and what reasonable            amount
should begpaid for-the transcripts.       The law presumes       that a public officer
has exercised    his discretion   in accordance     with the law until the contrary
is shown.    47 Tex. Jur. 2d Public, Officers      § 118.   If the magistrate’s
determination    as, to the reasonable-value    of the transcript.is    disputed,   the
burden rests with the Commissioners          Court to show thatthe determination
is so unreasonable,     arbitrary   or capricious    as to amount to.an abuse.of,
discretion.    Commissioners      Court of Lubbock County v. Martin,         471 S.W..
2d ,100, 108 (Tex. Civ. App. --Amarillo        1971, writ ref’d n. I. e. ).
                  d’
          Another expenses about which each of. you inquire is compensation
for’,a, private attorney to assist in the conduct of the court of inquiry.

          There is no specific authorization for the appointment of an attorney
to’participate    in a court of inquiry.   Tbere.is   no express authorization   for
any attorney to represent      the state in a court of inquiry,   as there is in an
examining      trial [Code Grim. Proc.    art. 16.061; before the grand jury
[art. 20.031; in a habeas corpus proceeding         [arts. 11.07, 11.391; and an
inquest upon a dead body [art. 49.121; or in a fire inquest [art. 50.021.




                                        p.   2447
  The Honorable    John F. Perry
  The Honorable    Henry Wade        page 6         (H- 544)




          However,    it has been held that:

                   It has always been the principal duty of the district
                   and county amrneys to investigate    and prosecute
                   the violation ‘of all criminal laws, including the
                   election laws, and these duties cannot be taken away
                   from them ,by the Legislature    and given to others.
                   (Emphasis added)       Shepperd v. Alaniz,   303 S. W. 2d
                   846, 850 (Tex. Civ. App. --San Antonio 1957, no
                   writ hist. ).

        As a matter of practice,      it appears that courts of inquiry are some-
 times held upon the initiative of the district attorney and pursued by him.
 See McClelland~v>     Briscoe,~ ,359 S. W. 2d 635 (Tex. Civ. App. --Houston
 1962, writ.ref’d  n. r. e.); Ex parte Jimenez.    317 S. W. 2d 189 (Tex. 1958).

          Also,    the’exception   inarticle   52.09 providing for payment of costs
 by the State “where. the Attorney General of Texas has submitted-a           request
 in writing to the judge for the holding of such Court of Inquiry” indicates
 ~that the’legislature     anticipated that courts~.of inquiry could be initiated
 by:an attorney representing        the state.and,  inferentially, that inthe usual
 situationit    would be at the.instance     of the district or counwattorney
 rather than the~attorney general.
                     ‘~<_       ”
           In regard<0    the exclusiveness     of the authority of .the county attorney,
  district ‘attorney, %nd,attotney      general: to~,represent the,state,.:.see   Garcia v.
  LaughliniiQ85:S;     W. 2d~191~(Tex::.~Sup;-r1955);~Staples   v;,rState exrel.~ Kin&
  245 S. W. 639 (Tex. Sup. 1922); Maud v. Terrell.            200 S. W. 374 (Tex. Sup.
” 1918);: -Bridy.~v. .‘Brooks, 89% W.:g1052 (Tex. Sup.~~l905); Harris County v.
  Stewart,   41 S. W. 650 (Tex. Sup. 1897).

         ‘Since there i s n 0 _ s.ta.tu t 0 ry ~‘, authorization   ‘forkthe appointment
 and compensation    of a private attorney to represent      the state in a court.of
 inquiry, .and sinc~e the above authorities    indicate that it is within the general
 duty of the county attorney and district attorney to investigate        the violation
 of criminal la~ws, it is our opinion that if the magistrate      conducting the court




                                        p.   2448
The Honorable    John F. Perry
The Honorable    Henry Wade        page 7           (H- 544)




of inquiry desires an attorney to represent     the state in the inquiry, the
county or district attorney should be called upon to perform that duty.
If the county or district attorney is disqualified,   absent,  or otherwise unable
to perform the duties of his office,  an attorney pro tern may be appointed
under article 2.07,   Code of Criminal Procedure,       and compensated   as
authorized under that article.    See Attorney General Opinion H-324 (1974)
(authority of district court lo ap=t    attorney pro tern to assist grand
jury).

         Mr. Perry asks generally about reasonable       and necessary   expenses
incurred in preparation   for a court of inquiry.    In the absence of specific
expenses we cannot answer the question definitively.        However,   we observe
that the only actions a judge acting as magistrate     is authorized to take in
a court of inquiry are to summon witnesses,       examine them, have their
testimony transcribed,    and issue a warrant of arrest.      Articles 52.01,
52.07 and 52.08,    Code Grim. Proc.      In Attorney General Opinion H-439
 (1974), we held that a grand jury has no independent authority to hire an
investigator.   We believe the same limitation would apply to a court of
inquiry.

         Mr. Perry    asks   an additional    question     growing   out of the following
fact situation.

         The district   judge scheduled a court of inquiry to inquire into the
conduct of the district attorney’s     office.    Prior to the date, set for the court
of inquiry,  the district attorney filed ,a motion requesting the district judge
to disqualify himself on the grounds of personal bias.            The judge overruled
the motion.     The district attorney,    in his individual capacity,    petitioned
the’federal  district court to enjoin the district judge from proceeding with
the court of inquiry.     Upon a hearing,      the federal district court issued an
order enjoining the district judge from proceeding with the court of inquiry.
The order was stayed and appealed to the United States Court of Appeal for
the Fifth Circuit.    The district judge secured attorneys to represent him in
the federal proceedings,     including the appeal of the order of the federal
district court.    The coinmissioners      court has withheld its authorization     to
pay legal expenses pending this inquiry.




                                       p.    2449
The Honorable    John F. Perry
The Honorable    Henry Wade        page 8       (H- 544)




        You ask whether the county is obligated to pay reasonable   and
necessary  expenses of attorneys for the district judge at the federal
hearing and on the appeal of the order.

         We find no statutory authority for any public official to obligate a
county to pay a private attorney to defend any suit brought against him in
his individual capacity in a federal court.   We do not believe that such
expenses are within the meaning of the term “costs” as used in article
52.09 of the Code of Criminal Procedure.

         Each ,of you presented your questions in terms of a judge’s
authority to obligate a county to spay expenses growing out of a ,court of
inquiry, and not whether the commissioners      court may. in its discretion,
authorize or ratify the payment of such expenses.

          In this regar.d a .county’s interest in good law enforcement        has
 been considered     sufficient justification    to authorize a commissioners
 court’s expenditures of funds for a reporter to transcribe          grand jury
 testimony.    Rodgers v. County of Taylor,           368 S. W. 2d 794, 797 (Tex. Civ.
 APP. --Eastland     1963, writ ref’d n. r. e.) and this office has held that a
 commissioners      court has authority to employ an attorney to assist a grand
 jury. Attorney General Opinion M-823 ( 1971).             Thus, while a county may
 not be obligated to pay certain expenses incurred in connection with a court
‘of inquiry,   we believe that~the commissioners          court may authorize or
 ratify reasonable/and      necessary     expenses in connection.with    such a pro-
 ceeding, if it determines      that ,it is.in ~the interest of.the county to do so.

          Among,the   expenses which the county.may       authorize or ratify are
,the costs of hiring an attorney.     The.authority   of a county commissioners
 court to employ counsel to represent       county interests   in suits, even when
 nominally against individuals,     has been recognized.      City National Bank
 of Austin v. Presidio    County,- 26 S. W. 775 (Tex. Civ. App. 1894. no
 writ); Guerra v. Weatherly,      291 S. W. 2d 493 (Tex. Civ. App. --Waco
 1956. no writ):   Attorney General Opinion M-726        (1970).  See Chandler v.
Saenz,~ 315 S. W. 2d 87, 90 (Tex.     Civ. App. --San Antoniox8,          writ
 ref’d n. r. e.); City of Corsicana    v. Babb,   290 S. W. 736, 737 (Tex. Comm.




                                        p.   2450
The Honorable   John F. Perry
The Honorable   Henry Wade        page 9           (H- 544)




App. 1927, jdgmt adopted).     These cases are in accord with the general
rule in the United States that a public body, acting in good faith, may
indemnify public officials for legal expenses incurred in suits brought
against them for acts committed in discharge    of their duties.  Annot.,
130 A. L. R. 736 (1941).

        Conversely,  in any case where the public official acted outside of
or beyond the scope of his legal powers,  a public body has no authority
to pay such legal expenses.   Attorney General Letter Advisory   No. 24
(1973).

                                SUMMARY

                     In a court of inquiry, a county is obligated to pay
                those costs for which a fee is expressly      provided by
                law and the reasonable     expense of activities   expressly
                required to conduct the proceeding,      including the
                original transcription    of the statement of facts taken
                at’the court of inquiry.     Code ‘Grim. Broc. art. 52.07,
                 52.09.      .   .

                    The judge holding the court of inquiry may certify
                what reasonable  amount should be paid ,the court reporter
                fqr preparing the transcription.

                     A county is obligated to pay the compensation   of an
                attorney pro tern to assist in the conduct of the inquiry
                when the.appointment     is made in accordance  with
                article 2.07 of the Code of Criminal Procedure.

                     A county commissioners  court may authorize or
                ratify expenses incurred in the conduct of a court of




                                       p.   2451
    The Honorable     John F. Perry
    The Honorable     Henry Wade            page 10          (H-544)




                      inquiry which are in the interest of the county,
                      including the expense of legal counsel to defend
                      suits brought against the judge conducting the
                      inquiry for acts committed in the discharge   of
                      his duties and within the scope of his authority.

                                                               Very    truly yours,




    APPROVED:
-



    DAVID     M.   KENDALL,      First   Assistant




    C. ; RGBERT%EATH,            Chairman
    Opinion   Cornmittqe
                           ./’

    lg




                                                p.    2452
