                     ~~OR~'EY         GENEMAE
                       QF   TEXAS




Honorable Donald E. Short       Opinion No. WW-662
County Attorney
Wichita County                  Re:   The authority of the
Wichita Falls, Texas                  Commissioners' Court
                                      of Wichita County,
                                      Texas to reimburse
                                      the Sheriff for cer-
Dear Mr. Short:                       tain expenses.

       In your recent letter you have requested our
opinion as to whether the Commissioners' Court of Wichita
County may or must reimburse the Sheriff of that county
for certain expenses incurred by him in defending a suit
by a judgment creditor against the Sherl.ff and the surety
on his official bond. The expenses were for attorneys'
fees, court costs and traveling expenses.

       According to the brief accompanying your letter,
the suit was brought under Articles 3825 and 3826, Vernon's
Texas Civil Statutes.  The motion for judgment which you
have sent to us shows allegations to the effect that the
Sheriff failed to promptly levy upon and sell property sub-
ject to execution when the same might have been done and
that the Sheriff failed to make a timely return on the writ
of execution. You have also sent us a copy of a judgment
entered by the District Court against the Sheriff and his
surety for damages and costs of cou~rt. We assume that no
appeal was taken from such judgment and that same has be-
come final.

       On the question of whether the Commissioners'
Court must reimburse the Sheriff for such expenses, we note
that Section (b) of Article 3899, Vernon:,s Texas Civil Stat-
utes, provides in part that the Sheriff   . . . where he
receives a salary as compensation for his services, shall be
entitled and permitted to purchase or charge to his co,unty
all reasonable expenses necessary in the proper and legal
conduct of his office,  . . .".
Honorable Donald E. Short, page 2 (WW-662)



       The expenses to a Sheriff of defending a suit
for damages arising from failure to perform his official
duties as required by law are obviously not expenses neces-
sary in the proper and legal conduct of his office. It is
the improper nature of the acts of the Sheriff which gave
rise to the instant suit and the expenses for which reim-
bursement is sought. In the instant situation it has heen
determined by a court of competent jurisdiction that the
Sheriff acted improperly. The expenses were incurred by
the Sheriff in consequence of such improper acts. Accord-
ingly, we are of the opinion that the Commissioners' Court
has no mandatory duty to reimburse the Sheriff for such
expenses.

       m   the Commissioners' Court reimburse the Sheriff
for such expenses?

         A Commissioners' Court is a court of limited juris-
diction and has only such powers as are conferred upon it
bv the Constitution and laws of this State bv exoress terms
0E necessary implication.    Hill v. Sterrett,"252‘S.W. 2d 766
(Civ.App. 1952, error ref. n.r.e.); Canales v. La,ughlin, 147
Tex . 169, 214 S.W. 2d 451 (1948); Childress County v. State,
127 Tex. 343, 92 S.W. 2d 1011 (1936); Roper v. Hall, 280 S.W.
289 (CIV.ADD.   1925).
                    -.  We have found no constitutional or
statutory provision conferring authority on Commissioners'
Courts to reimb,urse the Sheriff for court costs, travel ex-
penses or attorney's fees incurred in defending such a suit
as the one involved here.

       It has been repeatedly held by this Department that
the Commissioners' Court has the power and authority to em-
ploy attorneys in the prosecution of 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
affected in such proceedings. Attorney General's Opinions
v-995 (1950); v-232 (1947); and o-4955 (1942).
       In Opinion V-232 (1947), this Department held that
a County Commissioner was not entitled to reimbursement
from the county for his attorney's fees in defending a suit
against him and his bonding company for damages arising from
the Commissioner's negligence in failing to repair a county
bridge. At first the county was not named as a party to such
suit. Later the county was named as defendant and the Com-
missioners' Court employed the attorney already representing
c




    Honorable Donald E. Short, page 3 (WW-662)



    the Commissioner to assist the County Attorney in defend-
    ing the suit against the county. The Commissioners' Court
    was held to be authorized to employ and pay the attorney
    for his services in defending,the county after the county
    was made a party to the suit, the reason being that the
    county as a whole then became interested in and affected
    by the suit.

           In Opinion O-4955 (1942), the Commissioners' Court
    was held to be authorized to pay a private attorney for
    representing the court and the county in a suit against
    the County, County Ju,dge, Commissioners, County Auditor,
    County Clerk and County Treasurer to enjoin them from
    paying out county funds for dirt purchased from a county
    employee.   The suit named the county as a defendant and
    was viewed as one affecting the county as a whole.

           A suit against the County Judge and the Commis-
    sioners' Court to set aside an order of the court dividing
    revenue from the automobile registration tax in a certain
    manner and to restrain the court from taking certain action
    concerning said division was held in Opinion O-1440 (1939)
    to authorize the Commissioners ' Court to hire and pay an
    attorney to defend such suit. The county was named as a
    defendant and the distribution of the co,unty's revenue
    from automobile registration fees was regarded as a matter
    of concern to the whole county. It was noted in the opin-
    ion that the Commissioners' Court would not have lawful
    authority to retain and compensate special legal counsel
    to represent only the three precincts whose Commissioners
    were specifically named as defendants.   The employment
    would have to be under a contract to represent the Commis-
    sioners' Court.

            In City National Bank of Austin v. Presidio County,
    26 S.W. 775 (Civ.App. 1894)   the Commissioners' Court was
    held to be authorized to h&e counsel to reoresent the
    Commissioners' Court in a suit against the County Judge
    and the Commissioners to enjoin them from removing the
    co'unty seat from one town to another. The court said:
                 rt
                  . . . It is conceded that the com-
           missioners have power, as managers of the
           business affairs of the county, to incur
           such liability in cases in which the
           county as such is directly int.erea;
           . . .
Zionorable Donald E. Short, page 4 (W-662)


              11
             . .  . We are clearly of opinion that
       the commissioners did not exceed their
       powers in the employment of the attorneys.
       . . . While it was nominally a suit against
       them as individuals, its design and effect
       was to obstruct and control the performance
       of their official acts, and we are not dis-
       posed to hold in such a case that they must
       do nothing towards defending such suit, 0;
       must employ counsel at their own expense.
       (Emphasis ours).

       In the present case neither Wichita County nor the
Commissioners' Court of that county were ever named as de-
fendants.   The Commissioners' Court did not employ or
a,uthorize the employment of the attorney. The design and
effect of the suit was not to obstruct or control the per-
formance of official acts, but to recover damages from the
Sheriff and his bonding company for his failure in the past
to properly perform his official duties. In view of the
foregoing, it cannot be said that the county as a whole was
interested in or affected by such a suit. Hence, in our
opinion, the Commissioners I Court is not authorized to re-
imburse the Sheriff for his expenses in defendPng such suit.

                          SUMMARY

            The Commissioners' Court of Wichita
            County is not authorized to reimburse
            the Sheriff of Wichita County for ex-
            penses incurred by the Sheriff in de-
            fending a suit for damages against the
            Sheriff and the surety on his official
            bond based on the Sheriff's failure to
            perform his official duty as required
            by law.

                              Very   truly   yours,

                              WILL WILSON
                              Attorney General of Texas




HGB:mg:rm
Honorable Donald E. Short, page 5 (WW-662)



APPROVED:

OPINION COMMITTEE
Geo. P. Blackburn, Chairman

William E. Allen
Elmer McVey
Dean Davis
Marvin H. Brown, Jr.

REVIEWED FOR THE ATTORNEY GENERAL
BY: W. V. Geppert
