                       THEA-ITORNEY      GENEEAE
                                OF TEXAS
                                   AUSTIN   i%Twas
       FvII.I. wIu3o~
     *-rroRNEY    DENERAI.   '-'        September 2, 1960

            Mr.~.
                J. 9. Grishak!,                      Opinion No, W-929
            Criminal Distriot'Attorney
            'Canton,Texas   ."                        Re: Duty of County Attorney,
                                                      District Attorney and Criminal
'.                                                    District Attorney in Condemna-
                                                     ,~tionSuits by the County or
             Dear Mr. Grisham:                        the State
                  We have received your let,terin which you ask if it is the
             official duty of the County Attorney,torepresent the State and
             County in condemnationcases. You state that it is your under-
             standing tht'as County and District Attorney, It is not your
             duty officially to re resent the State and Van Zandt County in
             condemnationcases; tL t it is your understandingthat the
             county may, if it sees fit, employ your services to represent
            ..theState and county in condemnationproceedingsand pay a fee
            ~therefor.
                  In Opinion Do. O-1040 dated July 7, 1939, it was held by
             this Departmentthat a county autorney~is not requi.redto re-
             present the county in condemnationproceedingsand that the
             commissionersf.court may contract with the county attorne:yto
             representsthe county in such proceedings and compensatehim as
             per contract.
                  Opinion No. O-1379 dated November 2, 1939 held that a
             county may employ an attorney for,the purpose of instituting
             and prosecuting condemnationsuite for rights of way and pay
             him compensationout of road bond funds; that such compensa-
             tion should be a specific sum of money and not on a salary .
             basis.
                  Opin,ionNo. O-1164,datedJanuary'l3, 1940, modified the
             above Opinion No. O-1379 by holding that the compensationof
                                  for condemnationcases may be on a salary;
                                 as may be determined by the commissionersV

                  In,letter Opinion (R-960) dated December 3, 1947, it whs
             hald that the county may employ a law firm to represent the
             county in condemnation aasee when the Assistant County Attorney
             is a member of said law firm and .oitedOpinion No,,O-1040 as ‘
             authority,
           a




                ,Mr.,
                 : :J,3. Grisham, page,'2..~(&929).
           _.




,.

                    'O'inionNo. 0-1040:&s again u held in two letter opinions
                (D-9577dated December 4;1947 and 7.R-2282) .datedFebruary 15,
                195,l.b.
     .,.


                   ':'The,aboveopinions haPe been.followedby our Department
                                  ~OpinionNo, G-1040 and we cite those opin-
                aiqee ‘the~original
                ions ae.reaeohefor our holding.~as hereinafter Sethout- .,It
                ~~~?e:aobice~,, .ho~ver;:thatthese o inions apply only to
                s~&ts~by'a,countyto ac uirwproperty3 y cond.emnation  even
                though~the'suitmay~be 2iled in the name of the State of Texas.
                     Since the above opinions were written; a new statute.has
                Ueen'eneatedpertaining.tosuits~.by the State Highway Commis-:
                sion in the name'af thenState for the purpo.seof condemning
                &nd fca h' way rights~of way.. This act.is contained in
                HouseDill;T 79, Chapter 300, Pa e 724, of the Acts of the
                     &r Session of the Fifty-fi%th Legislature (1957) (Article
                %?V;A.C;&)..     A’portion of Section4 of this Act (Article ~~
                66~3)~reads as follows:
                       "."In the Drosecutionof any condemnation.suitbrought~
                 '~bp%he State Hightiay'Commission in the"name of the State    ~.
                  ~of Texas for'the acquisition.of property pursuant to the.'
                   powers granted in this Act; the Attorney General,~at the .~_
                   request.ofthe State Highway Commission,or, at the Attorneys
                   GeneralZs. diroction,'the:applicableCount or,District': :
                  ‘Attbrxiey or Crtiinal District-Attorney,s1:
                                                             all bring and
                   prosecute the suit.inthe name -of the State of.Texas and,',.
                   the venue of any such sui't-shaU.be Sfi'theGunty in tiich ':
                   the property'ora part thereof.is e5.tu&ted,w
                    ':Underthe above'statute,It la clear that b condemnation
                suits,.
                      ,brought b9 the State Highway Commission in the name of
                the-State of Texas for the acquisitionsof.property,forhighway
                right@:-.of
                          way, if,tbe At.torneyGeneral directs him to do sol,
                the applicableCo.untyAtlzorneyf,Distriot Attox'ney,or Criminal
                District Attorney of.the County where the land to be condemnad
                is located has the duty to bring and prosecute such suit,
                     ,It is to be noticed, however, that this Act does not pro-
                 vide for an9 compensationfor the attorney for services in
                 filing and prosacuting condemnationsuits of the.naturejust
                mentioned. It,is well settled that an officer may be required
                by law to perform specific services or discharge additional
                 duties for,which no compensationis,provided;that the obliga-',
                 t&n to perform sutih services is imposed as an .incidentto the
                 office and the officerby his acceptance thereof is deemed to
                ,have engaged to perform such duties without compensation.
                See Section 116 on "Public Officers" 34 Tex. Jur. 531; Rice v.
    Mr, J. S.'Grisham,page 3    (WW-929)
I




    Roberts, 177 S.W. 149 (error dismissed);M&alla v. Rockdale,.
    246*     654 (Corn.App.); and Hallman v. Campbell, 57 Ten. 54.
           In answer to the questions propounded,you are advised it
    is our opinion that it is   not the duty of the county attorney,
    district, or criminal district attorney officially to represent
    the county in filing-and prosecuting condemnationsuits by the
    county whether in t e name of the county or the @ate and that
    the commissioners~.court   may contract for such officers or other
    attorneys to Perform such services and pay for the same. As.to
    suits filed by the State Highway Commission in the name of the
    State,   it is the duty of such attorneys,when directed.bythe
    Attorney General.to do eo, to bring and prosecute such suite.
    The law does not.authoriae any compensation to be paid for
    smh:serv$ces.

                                 ii!mix
         1, A County Attorney, District Attorney; or Criminal
         District Attorney is not required officially to repre-
         sent the County end State incondemnation suits yhzug~; by
         the Connty in the nme of the.Staue'or County.
         ml&loners' court may employ such attorneys or other attar-
         neys for such sertices and pay for the-same.
        :2*  In suits~broughtby the State Highway Commission in
         the name of the State of Texas to condemn~propertyfor
         highway rights of way, such attorneys-when directed by
         the .AttorneyGeaeral to do so, shall bring and prosecute
         such apits, but the law does not authorire any compensa-
         tion to be paid for such services.
                                        Very truly   -yours,
                                        UulL WILSON
                                                     neral of Texas




         APEgZOVHD:
         OPINION CONMIT!TEE    REVIEWED FOR THE ATTGFLNEYGE~AL
         W. V. Gsppert,iChairminl
                                BY: Houghton Brownlee
         Robert T. Lewis
         Cecil Cammack~
         Ray Scruggs
         Richard Wells
