                                  ATTORNEY GENERAL                        OF    TEXAS
                                                GREG         ABBOTT




                                                  February 19,2004



The Honorable Myles K. Porter                                 Opinion No. GA-01 53
Fannin County Attorney
Fannin County Courthouse                                      Re: Whether the Fannin County Commissioners
101 East Sam Raybum Drive, Suite 301                          Court may retain counsel to advise it on legal
Bonham, Texas 75418                                           matters without the consent of the county attorney
                                                              (RQ-0106-GA)


Dear Mr. Porter:

         You ask whether the commissioners court may retain private counsel, paying him a salary
and benefits, without the county attorney’s consent. ’ If it may, you ask whether the private counsel’s
salary and benefits may be paid from the county’s road and bridge fund. See Porter Brief, supra note
1, at 2.2

I.       Factual Backmound

         You state that the Fannin County Commissioners Court has retained the services of a private
attorney to advise it on general legal matters without the express consent of the elected county
attorney. See id. at 1. The county has paid the private counsel on a salary basis, including benefits,
from the general fund. See id. You have informed the commissioners court that you do not approve
of its retention of private counsel and that you are ready to provide whatever legal advice and
services the court may require. See id. at l-2. The court has indicated that “in light of the county’s
current budgetary situation,” the court intends to retain its private counsel and to pay his salary and
benefits from the county’s road and bridge fund. Id. at 2.




         ‘See Letter and Brief from Honorable Myles K. Porter, Tannin County Attorney, to Honorable Greg Abbott,
Texas Attorney General, at 2 (Sept. 15,2003) (on file with Opinion Committee) [hereinafter Porter Brief].

          2You have supplemented your request with questions about paying private counsel from road and bridge money
raised fromproperty taxes, fees collected by the tax assessor-collector, grants, fines, and other specific sources. See Brief
from Honorable Myles K. Porter, Pannin County Attorney, to Honorable Greg Abbott, Texas Attorney General (Oct.
29, 2003) (on file with Opinion Committee) [hereinafter Supplemental Briefl.
The Honorable Myles K. Porter - Page 2                     (GA-0153)




II.      Authoritv of County Attorney

         The Texas Constitution provides that a county attorney shall be elected in counties that do
not have a resident criminal district attomey.3 See TEX. CONST. art. V, § 21. The legislature may
create the office of district attorney and criminal district attorney. See id. “County Attorneys shall
represent the State in all cases in the District and inferior courts in their respective counties,” but if
a county is included in a district with a district attorney, the legislature shall regulate the respective
duties of district and county attorneys. Id. Because the legislature has not created the office of
district attorney in Fannin County, see Porter Brief, supra note 1, at 1, the Fannin County Attorney
performs the duties of a district attorney. See TEX. GOV’T CODE ANN. 5 46.002(3) (Vernon Supp.
2004).

         District and county attorneys are charged primarily with enforcing criminal statutes. See
TEX. CONST. art. V, 8 21; Brady v. Brooks, 89 SW. 1052, 1056 (Tex. 1905). The legislature has
granted county attorneys certain other powers and duties. A district or county attorney is required
“on request . . . [to] give to a county or precinct official of his district or county a written opinion or
written advice relating to the official duties of that official.” TEX. GOV’T CODE ANN. $ 41.007
(Vernon 1988). See also id. 8 41.009 (county attorney authorized to sue county officer entrusted
with public funds to compel performance of duties). The legislature has also charged county
attorneys with civilly enforcing certain regulatory statutes. See, e.g., TEX. AGRIC. CODE ANN.
5 161.133 (Vernon 1982) (county attorney shall file and prosecute civil suit against corporation
violating provisions on control of animal diseases); TEX.GOV’T CODE ANN. 0 552.32 15(c) (Vernon
Supp. 2004) (county attorney’s authority as to civil enforcement of Public Information Act).

         It is usually not the county attorney’s statutory duty “‘to represent the county in its general
legal business”’ or in conducting “‘ordinary civil actions.“’ See Guynes v. Galveston County, 861
S.W.2d 861, 864 (Tex. 1993) (quoting Hill Farm, Inc., v. Hill County, 425 S.W.2d 414,419 (Tex.
Civ. App.-Waco 1968), afd on other grounds, 436 S.W.2d 320 (Tex. 1969)); Tex. Att’y Gen. LO-
97-011, at 2. The legislature has, however, promulgated special statutes regulating the duties of
county attorneys in specific counties, in some cases expressly requiring a county attorney to represent
the county in civil actions. See TEX. GOV’T CODE ANN. $3 45.171 (Vernon Supp. 2004) (County
Attorney of El Paso County), .179 (County Attorney of Fort Bend County), .261 (County Attorney
of Matagorda County), ,201 (Vernon 1988) (County Attorney of Harris County); see also Driscoll
v. Harris County Comm ‘rs Ct., 688 S. W.2d 569,572-74 (Tex. App.- Houston [ 14th Dist.] 1984, writ
ref d n.r.e.) (construing predecessor of Government Code section 45.201; noting that certain
populous counties had, either with or without special legislation, provided for representation of the
county in civil matters by the county attorney, district attorney, or criminal district attorney). No
such special statute addresses the Fannin County Attorney’s duties. See TEX. GOV’T CODEANN. ch.
45 (Vernon 1988 & Supp. 2004) (section 45.174 reserved for Fannin County).




         3Acriminal district attorney is the district attorney in counties without a county attorney. See TEX. CONST. art.
V, 0 21; Hill County v. Sheppard, 178 S.W.2d 261,263 (Tex. 1944).
The Honorable Myles K. Porter - Page 3            (GA-0153)




III.    Authority of Commissioners       Court to Retain Private Attorneys

         The commissioners court, pursuant to its implied power to accomplish its constitutional and
statutory directives, may contract with experts when necessary, including attorneys. See Guynes, 86 1
S.W.2d at 863 (commissioners court established legal department to conduct county’s civil legal
affairs); Pritchard&Abbott    v. McKenna, 350 S.W.2d 333,334 (Tex. 1961) (employment of expert
to appraise all properties in county); McClintock & Robertson v. Cottle Co., 127 S.W.2d 3 19, 321
(Tex. Civ. App.-Amarillo     1939, writ dism’d judgm’t car.) (county may retain private law firm to
determine its amount of bonded indebtedness).            The courts have upheld the power of a
commissioners court to hire counsel to assist it or other officials in carrying out its responsibilities,
so long as the statutory duties of other county officials are not usurped. See Guynes, 861 S.W.2d
at 863.

         Driscoll considered whether the commissioners court could employ legal counsel other than
the Harris County Attorney to perform legal services for the board of the county toll road authority.
Driscoll, 688 S.W.2d at 569. The court addressed the predecessor of a statute that requires the Harris
County Attorney “to represent the state, Harris County, and the officials of Harris County in all civil
matters pending before the courts of Harris County.” TEX. GOV’T CODE ANN. 5 45.201 (Vernon
1988). It noted that this provision imposed “specific duties upon the county attorney of Harris
County which are not imposed upon county attorneys, criminal district attorneys or district attorneys
generally.” Driscoll, 688 S.W.2d at 579 (on motion for rehearing). Harris County was also subject
to the predecessor of a statute providing that in counties with a population of more than one million,
the commissioners court may employ an attorney as special counsel to be selected by the county
attorney. See TEX. LOC. GOV’T CODE ANN. 0 89.001 (Vernon 2004); see Driscoll, 688 S.W.2d at
579-80 (discussing predecessor ofLocal Government Code section 89.001, which applied to counties
of more than 500,000 population). The court determined that the commissioners court had usurped
the county attorney’s powers under these statutes by employing legal counsel other than the Harris
County Attorney to perform legal services for the county toll road authority. See Driscoll, 688
S.W.2d at 575-76,582-83. See also Terrell v. Greene, 3 1 S.W. 63 1,633 (Tex. 1895) (where county
attorney had statutory right and duty to sue county treasurer on his bond, commissioners court had
no authority to displace him by employing private counsel to handle suit).

         In Maud v. Terrell, 200 S. W. 375,376 (Tex. 19 18), the court addressed the constitutionality
of a statute authorizing the comptroller to employ persons to bring tax collection suits in district and
inferior courts to collect inheritance taxes. See Maud, 200 S.W. at 375-76. It found the statute
consistent with Texas Constitution article V, section 21, by construing it as allowing other persons
to assist the county attorney in subordination to his authority. See id. at 378; see also Seagler v.
Adams, 238 S.W. 707, 708 (Tex. Civ. App.-Galveston         1922), aff’d, 250 SW. 413 (Tex. 1923)
(commissioners court may contract with attorneys to assist county or district attorney to bring suits
to collect debts against officials and others).

         In Guynes, the supreme court for the first time considered whether a commissioners court
may employ a permanent legal staff to advise it in its various civil affairs. See Guynes, 861 S.W.2d
at 86 l-62. The court determined that the Galveston County Commissioners Court, under the unique
The Honorable Myles K. Porter - Page 4                    (GA-0153)




facts presented in Guynes, could “legally employ staff attorneys to advise and represent it concerning
civil matters.” See id. at 862. The court addressed Government Code section 44.184, which
provided that the Galveston County Criminal District Attorney “shall exclusively represent the state
in all criminal matters before” the district courts and inferior courts in Galveston County and “shall
represent Galveston County in any court in which the county has pending business.” TEX. GOV’T
CODE ANN. 0 44.184(a) (Vernon 1988).               Reading this provision in connection with the
commissioners court’s long-standing authority to seek legal assistance, the court found that the
statute imposed on the Galveston County Criminal District Attorney an exclusive duty to represent
the state in criminal matters, but no corresponding exclusive duty to represent the county in civil
matters. See id. at 864. It noted that “the summary judgment record presents no evidence” that the
commissioners       court had delegated the criminal district attorney’s duties. Id. Moreover, the
criminal district attorney “clearly and unequivocally consented to the present arrangement for
handling the county’s civil legal affairs.“4 Id. “[Blecause the Commissioners Court has not usurped
or interfered with the duties of the Criminal District Attorney, because it may employ counsel to
advise it concerning the affairs of the county, and because the Criminal District Attorney consented
to the arrangement,” the commissioners court could fund and use its legal department in conducting
its civil legal affairs. Id. The Guynes court expressly reserved the question of the “limitations [that]
might be imposed on the present arrangement should the Criminal District Attorney withdraw his
consent .” Id.

        Attorney General Opinion GA-0074, in concluding that the El Paso County Bail Bond Board
could not hire outside legal counsel, distinguished the facts and law in the question before it from
those in Guynes. See Tex. Att’y Gen. Op. No. GA-0074 (2003) at 3. The legislature had vested the
county attorney for El Paso County with “the primary duty. . . to represent the state, El Paso County,
and the officials of El Paso County in all civil matters pending before the courts of El Paso County
and any other courts in which the state, the county, or the officials of the county have matters
pending.” TEX. GOV’T CODE ANN. 0 45.171 (Vernon Supp. 2004). The El Paso County Attorney
moreover explicitly refused to consent to the employment of outside counsel. See Tex. Att’y Gen.
Op. No. GA-0074 (2003) at 3.

IV.      Authoritv of Fannin County Commissioners                   Court to Employ Private Counsel

         You suggest that Attorney General Opinion O-7474 (1946) resolves your question. See
Porter Brief, supra note 1, at 3. Attorney General Opinion O-7474 stated that the judicial decisions
on a commissioners court’s authority to employ private attorneys “have contemplated employment
and remuneration of counsel by the Commissioners’ Courts only for a specific litigation, or advice
on a particular matter or problem.” Tex. Att’y Gen. Op. No. O-7474 (1946) at 2. It concluded “that
the law does not intend that the Commissioners’ Court shall employ counsel on a salary basis to
advise and represent it in whatever matters might arise.” Id. However, the court in Guynes held that
the commissioners court was authorized to employ a permanent legal staff to conduct its civil legal
affairs. See Guynes, 86 1 S. W.2d at 864. Guynes effectively overruled the reasoning and conclusion



         4The criminal district attorney’s consent to the arrangement suggests that he found that the county legal offke
was providing assistance to him and not usurping his statutory duties. See Guynes, 861 S.W.2d at 864.
The Honorable Myles K. Porter - Page 5            (GA-0153)




of Attorney General Opinion O-7474. The answer to your question is controlled by Guynes. See
Tex. Att’y Gen. Op. No. GA-0074 (2003) at 3 (distinguishing Guynes to conclude that the El Paso
County Bail Bond Board may not seek outside legal counsel without the consent of the county
attorney).

         A commissioners court may employ a private attorney to provide legal services as long as
it does not encroach on the constitutional or statutory authority vested in the county attorney. See
Guynes, 861 S.W.2d at 863. The constitution requires a county attorney to “represent the State in
all cases in the District and inferior courts in their respective counties,” but does not impose civil
duties on county attorneys. TEX. CONST. art. V, $21. The Fannin County Attorney does not have
a general statutory duty to represent the ci>unty and its officers in civil actions. The Fannin County
Commissioners Court will not usurp the county attorney’s authority if it employs a private attorney
to provide legal services that neither the constitution nor a statute vests in the county attorney. Under
these circumstances, the commissioners court may retain private counsel as a salaried employee,
without the county attorney’s consent.

        A private attorney employed by the Fannin County Commissioners Court may also give legal
advice to the commissioners court, without usurping the county attorney’s power to give legal
opinions to the court. Government Code section 41.007 provides that

                 [a] district or county attorney, on request, shall give to a county or precinct
        official of his district or county a written opinion or written advice relating to the
        official duties of that official.

TEX. GOV’T CODE ANN. 0 41.007 (Vernon 1988) (emphasis added).          The court in Gibson v. Davis,
236 S.W. 202 (Tex. Civ. App.-Galveston        1921, no writ), addressed the commissioners court’s
authority to employ private attorneys to advise it about the preparation of road bonds and render
opinions about the legality of the bonds. See Gibson, 236 S.W. at 212. It stated that the predecessor
of Government Code section 41.007

                was intended to impose a duty upon the county and district attorneys,
                and not as a restriction upon the commissioners’          court in the
                employment of attorneys to advise and render services to the court in
                important matters coming before it for its consideration.

Id. Thus, section 41.007 does not bar the commissioners court from employing private attorneys to
advise it. The Fannin County Commissioners Court may employ a private attorney as a salaried or
hourly employee to provide it with legal advice.

v.      Payment of Private Counsel from Road and Bridpe Funds

         You ask whether private counsel retained by the commissioners court on either a salary or
hourly basis may be paid from road and bridge funds raised from (1) property taxes, (2) fees
collected by the tax assessor-collector  under Transportation Code chapter 508, (3) fuel taxes
The Honorable Myles K. Porter - Page 6                   (GA-0153)




collected by the state and disbursed to the county, (4) grants, (5) fines colleted by the district clerk,
county clerk, or justice courts, (6) or grassland tinds. See Supplemental Brief, supra note 2, at 1.
Whether any of these funds may be used to compensate a private attorney retained by the
commissioners court depends on the constitutional, statutory, or contractual provisions governing
their disposition.

        A.       Property Taxes

                Article VIII, section 9 of the Texas Constitution provides that a commissioners court
may levy an annual property tax rate for each of four constitutional purposes: the general f&d, the
permanent improvement fi,md, the road and bridge tind, and the jury fund, the total not to exceed
eighty cents per one hundred dollar property valuation. See TEX. CONST. art. VIII, 0 9(b). Fannin
County maintains the four constitutional tinds?       A 1967 amendment to article VIII, section 9,
authorizes a county to place all tax moneys into one general fund, without regard to the purpose or
source of each tax. See TEX. CONST. art. VIII, 0 9(d); Tex. H.J. Res. 3,6Oth Leg., R.S., 1967 Tex.
Gen. Laws 2979. The commissioners court of a county that maintains the four funds may by order
transfer money from one constitutional fund to another. See Lewis v. Nacogdoches County, 461
S.W.2d 5 14, 5 18 (Tex. Civ. App.-Tyler 1970, no writ); Tex. Att’y Gen. Op. No. H-194 (1974) at
3-4. The fact that Fannin County places property tax funds in the county road and bridge fUnd does
not prevent the commissioners court from transferring those taxes f?om that fund to the general fund
to pay a private attorney on an hourly or salary basis.

         Article VIII, section 9 permits the legislature to authorize an additional annual ad valorem
tax to be levied and collected for the tirther maintenance of the public roads. See TEX. CONST. art.
VIII, 8 9(c). The legislature has adopted Transportation Code section 256.052 implementing this
provision. See TEX.TRANSP.CODEANN. 5 256.052 (Vernon 1999). The special road tax authorized
by article VIII, section 9 may be used only for “the further maintenance of the public roads.” TEX.
CONST. art. VIII, 8 9(c). A county may also levy an additional property tax under Texas Constitution
article VIII, section 1-a, for the “construction and maintenance of Farrn to Market Roads or for Flood
Control, except as herein otherwise provided.” See TEX. CONST. art. VIII, 0 l-a. This additional
property tax may be used only for its constitutionally designated purposes. See Tex. Att’y Gen. Op.
No. H-530 (1975) at 2.

        B.       Motor Vehicle          Registration     Fees Collected      by the County         Tax Assessor-
                 Collector

                 Article VIII, section 7-a of the Texas Constitution,           which governs the use of motor
vehicle registration fees, provides in part:

                          Subject to legislative appropriation, allocation and direction,
                 all net revenues remaining after payment of all refunds allowed by



        ‘Telephone   Conversation   with Michael Skotnik, Assistant County Attorney,   Fannin County (Dec. 29,2003).
The Honorable Myles K. Porter - Page 7            (GA-0153)




                law and expenses of collection derived from motor vehicle
                registration fees . . . shall be used for the sole purpose of acquiring
                rights-of-way, constructing, maintaining, and policing such public
                roadways, and for the administration         of such laws as may be
                prescribed by the Legislature pertaining to the supervision of traffic
                and safety on such roads . . . .

TEX. CONST. art. VIII, 8 7-a. See Tex. Att’y Gen. Op. No. JC-0250 (2000) at 1. Pursuant to its
constitutional   authority to allocate and direct the use of motor vehicle registration fees, the
legislature has adopted Transportation Code chapter 502, which requires the annual registration of
motor vehicles.      See TEX. TRANSP. CODE ANN. 5 502.002 (1999). A county tax assessor-
collector or a deputy county tax assessor-collector is authorized to collect registration fees. See id.
8 502.004(2). Section 502.102 requires the county tax assessor-collector to credit a stated amount
of registration fees to the county road and bridge fund. See id. 8 502.102 (Vernon Supp. 2004). See
also id. 8 502.103 (Vernon 1999) (crediting funds from optional fee imposed under Transportation
Code section 502.172 to road and bridge fund). The registration fees credited to the county road and
bridge fund may be used for the purposes stated in section 502.108, which generally relate to road
and bridge construction, maintenance, and repair. See id. 0 502.108(a) (Vernon Supp. 2004). See
Tex. Att’y Gen. Op. No. JC-0250 (2000) at 2. These revenues are designated by the constitution and
statutes to be used “for the sole purpose of acquiring rights-of-way, constructing, maintaining, and
policing such public roadways, and for the administration of . . . laws . . . pertaining to the
supervision of traffic and safety on such roads.” TEX. CONST. art. VIII, 0 7-a. These revenues may
not be diverted to other purposes. See Gulf Ins. Co. v. James, 185 S.W.2d 966 (Tex. 1945); Tex.
Att’y Gen. Op. No. JM-593 (1986) at 2 (if the constitution earmarks money for specific purposes,
that money may be used for no other purpose).

        c.      Fuel Taxes Collected by the State and Disbursed to the County

                Article VIII, section 7-a of the constitution also provides that revenues received from
taxes on motor fuels and lubricants, subject to specific exceptions, may be used only for the purposes
it states. See TEX. CONST. art. VIII, 0 7-a. Thus, any fuel taxes within article VIII, section 7-a that
are allocated to the county may be used only for the constitutionally authorized purposes.

       D.       Grants

               You ask in general terms, without referring to a particular grant, whether road and
bridge funds from grants may be used to compensate an attorney retained by the commissioners
court. Grants are generally subject to terms and conditions, and the receiving entity must agree to
comply with these as a condition of receiving the grant funds. See generaZZy Tex. Att’y Gen. Op.
No. M-894 (1971). Whether particular grant funds may be used to compensate an attorney depends
upon the terms of the grant.
The Honorable Myles IS. Porter - Page 8                  (GA-01 53)




          E.         Traffic Fines

               Transportation Code section 542.402 requires a county to use fines collected for
highway violations under Transportation Code, title 7, to

                     (1) construct and maintain        roads, bridges,       and culverts       in the
                     municipality or county;

                     (2) enforce laws regulating the use of highways by motor vehicles;
                     and

                     (3) defray the expense of county traffic officers.

TEX. TRANSP.CODEANN. 9 542.402(a) (Vernon Supp. 2004). See Tex. Att’y Gen. Op. No. JM-158
(1984) at 2-4 (county must use DWI fines and related revenue for roads and can allocate it to
treatment center). These fines must be used for the purposes stated in the statute.

          F.         Grassland Funds

                Fannin County receives federal revenues in connection with the Caddo National
Grasslands.6 The Caddo grasslands were purchased by the United States Department of the Interior
during the 1930s under the federal Bar&head-Jones Farm Tenant Act in an effort to return eroded
land in the area to its natural state. See 7 U.S.C. 5 1010 (2000) (title III, Bar&head-Jones Farm
Tenant Act).7 The Secretary of Agriculture* is required to pay to the county in which national
grasslands are located 25 percent of the revenues the secretary receives from the use of the land
during the year. See id. 9 1012. Payments to counties “shall be made on the condition that they are
used for school or road purposes, or both.” Id. The county must use the federal payments of national
grassland revenues for the purposes stated in the federal statute.

          In summary, property taxes allocated to the Fannin County road and bridge fund established
pursuant to article VIII, section 9(b) of the Texas Constitution may be transferred to the county’s
general fund to compensate a private attorney employed by the commissioners court on an hourly
or salary basis to advise it and represent it in civil matters. Any county funds dedicated by the
constitution, a statute, or the terms of a grant to road construction and maintenance may not be
allocated to other purposes.      Whether the commissioners     court may use particular funds to
compensate an attorney must be decided on a case-by-case basis.




          6See id.

           ‘See also “CADDO NATIONAL GRASSLAND,” The Handbook          of Texas Online, available at http://www.tsha.
utexas.edtiandbooWonlinelarticles/printXClgkc8.htrnl.

          ‘The grasslands are administered by the United States Department   of Agriculture   as part of the National Forest
System.   See 36 C.F.R. 5 213.1 (2003); 16 U.S.C. 9 1609(a) (2000).
The Honorable Myles K. Porter - Page 9           (GA-0153)




                                       SUMMARY

                         Provided that it does not delegate duties constitutionally or
               statutorily vested in the county attorney’s office, the Fannin County
               Commissioners      Court may employ legal counsel to advise and
               represent it in civil matters, without securing the county attorney’s
               consent. County funds dedicated by the constitution, a statute, or the
               terms of a grant to road construction and maintenance may not be
               allocated to other purposes.

                                              Very truly yours,




BARRY R. MCBEE
First Assistant Attorney General

DON R. WILLETT
Deputy Attorney General for Legal Counsel

NANCY S. FULLER
Chair, Opinion Committee

Susan L. Garrison
Assistant Attorney General, Opinion Committee
