Honorable Murphy Cole
County Auditor
Liberty County
Liberty, Texas

Dear Sir:                       Opinion No. 0-27'79
                                Re: Non-liability of county under
                                     facts stated.

Your request for opinion has been received and carefully considered by
this department. We quote from your request as follows:

     "A few weeks ago e truck was wrecked in Liberty County and
     a claim has been made against the county for damages.

     "The following facts prevail in the case:

            "The Commissioner of Precinct No. 4 appointed orxa
            of his workmen on a certain morning to take a crew
            of men and to go to a certain bridge to make repairs.
            The Commissioner instructed his man in charge of
            the crew to go to the Precinct barn and there to
            get a truck in which to haul the crew to the broken
            bridge.

            "Upon arriving at the precinct barn the foreman
            found that the barn was locked; and he than
            asked one of the workers in his crew if he would
            take his own personal pick-up truck and haul the
            crew to the jobsite. The employee agreed that
            he would use his personal truck, and on the way
            to the broken bridge, a cm overtook the truck as
            the truck was about to turn off the main road,
            and there being no brakes on the car it bumped
            into the rear end of the pick-up truck and turned
            it over. The owner of the pick-up truck declares
            that he gave a si@al that he was about to turn.

            "Now the owner of the pick-up, an employee of the
            county, after having his car wrecked has filed a
            claim with the county for damages incurred in
            having his truck repaired--he having been asked
            by the foreman to use his truck In transporting
            the bridge crew to the job.
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Honorable Murphy Cole, Page #2   (C-2779)



          "Will you please advise whether the foremen had
          been given power as agent to contract for the use
          of the truck which was wrecked; and whether the
          county is liable for damages incurred as the
          result of the wreck of said truck."

We quote from 11Texss Jurisprudence, pages 563r 564, 565, 632, 633, 634,
635 and 636, .isfollows:

          "Counties, being component parts of the State,
          have no powers or duties except those which are
          clearly set forth and defined in the constitution
          and statutes. The statutes have clearly defined
          the powers, presecribed the duties, and imposed
          the liabilities of the commissioners' courts, the
          medium through which the different counties act,
          and from those statutes must come all the
          authority vested in the counties. . ."
          ,t. . . Commissioners' courts are courts of limited
          jurisdiction in that their authority extends only
          to matters pertaining to the general welfare of
          their respective counties and that their powers
          are only those expressly or impliedly conferred
          upon them by law, - that is, by the constitution
          and statutes of the State . . ."

          "The authority of the commissioners court as the        (I
          governing body of a county to make contracts in
          its behalf is strictly limited to that conferred
          either expressly or by fair or necessary implication
          by the constitution and laws of the state. 1 o ."

          "A contract or agreement made by a county is valid
          and binding only if made under the authority of
          a resolution or order duly passed at a meeting of
          the commissioners' court and entered upon the
          minutes of such meeting. If, in a suit involving
          an alleged contract, the petition fails to aver
          that an order was passed by the commissioners'
          court embodying the terms of the contract, the
          pleading is subject to a general demurrer. No
          rights can be scquired as against the county by
          agreements with the individuals composing the
          commissioners' court. The members of the court
          are not agents with general authority to bind the
          public; they are public officials who have been
          granted certain powers which must be exercised in
          the way prescribed by the statute.
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 Honorable Murphy Cole, Page #3 (O-2779)



           "The burden of proving, that an order was passed
           by the commissioners' court rests upon a plaintiff
           claiming rights thereunder.

           "If the minutes fail to state the true aQ;reement
           the proper method of amending the minutes is by a
           motion made in the commissioners' court and not by
           allegation and proof in another tribunal in which
           a litigation concerning the order may have arisen."

           The commissioners' court, in entering into a contract
           on behalf of the county, may act through an agent
           appointed by it; and the contract thus made by a
           duly appointed agent is binding upon the county.
           In a suit involving the aontract it is necessary
           to show that the sgreement is one which the agent
           was authorized to make, or that the county, with
           knowledge of the terms of the agreement, ratified
           it after it was made.

           "Authority to bind the county by contract must come
           from the commissioners' court acting as a body; it
           is not sufficient that the individual commissioners
           may have refrained from objecting to the assumption
           of such authority by the alleged agent. It.is not
           necessary, however, that authority be shown by an
           order actually entered on the minutes; the fact that
           an order was made may be shown by parol.

            "County officers, by virtue of their office, are
            not agents empowered to contract on behalf of the
            county; and when they assume to do so, no recovery
            can be had against the county upon the contract or
            for the value of the goods in the absence of
            ratification by the commissioners' court."

  Under the facts stated above we are unable to perceive any theory
  upon which the county could be held liable for the wreck above described.
  You are therefore respectfully advised that it is the opinion of this
  department that the county is not liable under the facts stated.

                                           Yours very truly

  APPROVED OCT. 26, 1940             ATPORNEY GENERAL OF TEXAS
  s/ Gerald C. Mann
  ATTORNEY GENERAL OF TEXAS           s/ Wm. J. Fanning

  APPROVED OPINION COMMITTEE
  BY B. W. B.                        BY
  CHAIRMAN                                 Wm. J. Fanning
                                                Assistant
  WJF:GO/ldw
