                       December 19, 1961

Honorable Steve Hurt             Opinion No. WW-1227
County Attorney
Hale County                      Re:   Whether a County Attorney
Plainview, Texas                       has the duty and the au-
                                       thority to institute a
                                       suit on behalf of the
                                       county against a former
                                       county judge, a former
                                       county commissioner and
                                       all the incumbent commis-
                                       sioners to recover for
                                       the county moneys un-
                                       lawfully caused to be
                                       paid out of county funds
                                       by the named officials
Dear Mr. Hurt:                         and related questions.
          You have requested an opinion with regard to the
duty and the authority of a county attorney to institute
suit against a former county judge, a former county commis-
sioner, and all of the incumbent county commissioners under
the following alleged facts:
            " Taxpayer has filed an action in the
       64th District Court against the above named
       county officials and former county officials.
       The taxpayer has alleged that the named of-
       ficials have caused to be paid from county
       funds certain unlawful expenses. Among the
       alleged unlawful expenses to be paid out of
       the county funds by the defendants are included:
       out of county traveling expense without
       first incurring such expense; in county
       traveling expense allowances while using
       a county furnished automobile; out of
       county traveling expenses by a commissioner
       in excess of three hundred ($300) dollars
       for one year; and various contributions to
       private persons and organizations. It is
       further alleged that one of the commissioners
       lived in a house owned by the county, using
       utilities at the county's expense, for several
       months without paying the county any rent
       for the same.
Honorable Steve Hurt, page 2 (W-1227)


         "The taxpayer plaintiff has made demands
    upon the county attorney to bring suit on
    behalf of the.county against the defendants
    for recovery of all the alleged unlawful
    expenses.
          "All of the alleged expenditures appear
     to have been made by the County Treasurer at
     the direction of the commissioners court.
     The present County Treasurer was not the
     County Treasurer at the time said expend-
     itures were made."
          Also, in a,telephone conversation with this
office on December 15, 1961, you made the following statement:
        "A majority of the incumbent county com-
    missioners who are presently charged with dere-
    liction of duty were holding their respective
    offices during the period of time the alleged
    illegal acts were committed."
          In addition to the foregoing alleged facts you
have submitted questions as follows:
          "Does the county attorney have the duty
     and the authority to file a suit in behalf
     of the county against a former county judge,
     a former county commissioner, and the present
     commissioners to recover for the county moneys
     unlawfully caused to be paid out of county
     funds by the named officials.
          "If the county attorney does not have
     such duty and authority, what county official,
     if any, does?
          "Upon the facts alleged, coming to the
     knowletigeof the county attorney, should no
     other county official take any action to re-
     cover the money for the county, would any
     duty fall on the county attorney to file
     a law suit for recovery on behalf of the
     county?"
          The questions that are herein involved have been
the subjects of much litigation In this State. It is now
well settled that a tax-payin? citizen has the right to
enjoin public officials fror making unauthorized expen-
.’        .
                                              :



     ..       Honorable Steve Hurt, page 3 (WW-1227)


              ditures of public funds. Hoffman v. Davis, 128 Tex. 503,
              100 S.W.2d 94 (1937) Looscan v. County of Harris, 58 Tex.
                          Carroll v. Williams, 109 Tex. 155, 202 S.W.

                        However, it Is equally well settled that a tax-
              paying citizen does not have the legal standing necessary
              to maintain a suit for the restoration of moneys unlawfully
              expended by a county official. Hoffman v. Davis
              Lewrlght v. Lowe, 95 Te.x.157, 65 S.W. 1
              ~~n~~~~"51~~~31"4~W~l~~:j.(Civ; App. 190?? iarrell v.

                        As a general propositlon.of law the commissioners'
              court is,charged with the duty and authority to bring a
              suit on behalf of the county for the recovery of moneys
              due it. In Terre11 v. Greene, 88 Tex. 539, 31 S.W. 631
              (1895) the~court stated:
                       "    .There are many instances in which
                  it might.be necessary to bring suits in the
                  name of the county, or in which suits might
                  be instituted against the co#nty not embraced
                  in the terms of Article 260.   In such cases
                  the commissioners' court would have the right
                  to control the institution of such suits,
                  because it has not been committed by law to
                  any other officer or tribunal; . . ."
                        In Looscan v. County of Harris, supra, the District
              Attorpey~;broughtsuit against Looscan, the Incumbent County
              Attorney, and other county officials for the purpose of
              recovering from Looscan certain moneys alleged to have been
              illegally paid him under a contract entered into with the
              commissioners' court and for the purpose of enjoining the
              county officials from making any further payment under the
              contract. The court held that the District Attorney was
              without authority to bring the suit against the will of the
              Commissioners' Court and stated:
                        ”
                            . . .The Commissioners' Court undoubtedly


              *Article 260 appears in the Revised Civil Statutes of 1925
              as Article 336.
Honorable Steve Hurt, page 4 (W:i-1227)


    has the right to cause suits to be Instituted
    In the name of and for the benefit of the
    county, and except Where a concurrent right to
    do the same thing, or where an exclusive right
    in a specified case or cases is conferred upon
    some other tribunal or some other officer of
    the government, the Commissioners~'Court must
    be deemed to be the quasi executive head of
    the county, vested with exclusive power to
    determine when a suit shall be instituted in
    the name of and for the benefit of the county."
    ‘(Emphasisadded) See also J. R. Phillips
    Investment Company v. Road s,
    172 S.W.2d 707 (Civ. App. 1943, error ref.\
    Attorney General's Opinion No. o-6543, (1945).
          However, where the suit is due to the dereliction
of a mojorlty of the members of the Commlssionerst Court,
it is the duty of the County Treasurer under the authority
of Article 1710 Vernon's Civil Statutes to institute the
proper suit or suits to recover,moneys due the county.
Hoffman v. Davis, supra; Attorney Generals Opinion No.
O-2117 (1940); Attorney General's Opinion No. O-66 (1939).
Article 1710 Vernon's Civil Statutes provides as follows:
         "The County Treasurer shall keep a true
    account of the receipts and expenditures of
    all moneys which shall come into his hands
    by virtue of his office, and of the debts due
    to and from his county; and direct prosecutions
    according to law for the recovery of all debts
    that may be due his county, and superintend
    the collectlon thereof."
          In,the Hoffman v. Davis case the court cited
Looscan v. Harris County, supra, and stated:
          "This court, after determining that
     there was no statute authorizing the District
     Attorney to institute the suit, announced
     the rule that, since the right to do so was
     vested in the Commissioners' Court, that
     right must be held to be exclusive.
          I,
           . . .
          "AS above pointed out, both the Commis-
..
     Honorable Steve Hurt, page 5 (WW-1227)


          sionerst Court and the county treasurer are
          vested by statutes with the right to institute
          this litigation. Since the former is in no
          position to act, the right of the latter to do
          so is exclusive, unless there is conferred
          upon the County or District Attorney by Article
          339 the concurring right . . . a question which
          we need not determine."
               The general authority of a county attorney,
     in so far as civil actions are concerned is derived from
     the Constitution and the statutes enacted by the Legislature.
     The constitutional stipulation appears as Article V, Section
     21, Constitution of Texas:
              "A Zounty Attorney, for counties in which
           there is not a resident Criminal District
          Attorney, shall be elected by the qualified
          voters of each county,  who shall be commis-
           sioned by the Governor, and hold his office
          for the term of four years. In case of
          vacancy the Commissioners' Court of the
           county shall have the power to appoint a
           County Attorney until the next general
           election. The County Attorneys shall
           represent the State in all cases in the
          District and inferior courts in their
           respective counties; but if any county
           shall be included in a district in which
           there shall be a District Attorney, the
           respective duties of District Attorneys
           and County Attorneys shall in such counties
          'be regulated by the Legislature. The
           Legislature may provide for the election
           of District Attorneys in such districts,
           as may be deemed necessary, and make
           provision for the compensation of District
           Attorneys and County Attorneys. District
           Attorneys shall hold office for a term
           of four years, and until their successors
           have qualified."
               The question of whether the county or district
     attorney under the provisions of Article 339 has a con-
     curring right with the county treasurer, where the commis-
     sioners' court is otherwise disqualified to act, to Initiate
     such a suit as is contemplated here was resolved in Bexar
     County v. Davis, 223 S.!J.558, (Civ. App. 1920, error ref.)
Honorable Steve Hurt, page 6 (1fiq-1227)


In that case the District Attorney had sued the county
judge on the behalf of the county for .noneyhe had allegedly
unlawfully appropriated. The court specifically held that
a county judge is not such an officer as is "intrusted
with the collection or safe keeping of any public funds."
In the course of the opinion the court says further that no
other member of the commissioners' court is such an officer.
In addition the court held that Article 339 does not empower
a district attorney to bring an action against a county
judge for money appropriated as salary from county funds
in the safe keeping of the county treasurer. It was
further held in the same case as follows: "The County
Treasurer is not only the sole custodian of the money of
the county, but it is his duty to 'direct prosecutions
according to law for the recovery of all debts that may
be due his county, and superintend the collection thereof.'"
           Although other civil statutes authorize.suit by
 the county attorney on behalf of the county in particular
-cases, as for example Article 6716 Vernon's Civil Statutes
 (Institution of suit against a treasurer who has diverted
 county or city funds), we have been unable to find specific
authority or direction for the bringing of a civil suit
 of the nature here involved.
          Furthermore, because a majority of the incumbent
County Commissioners were holding their respective offices
during the period of time the alleged illegal acts were
committed, it is our opinion that since these commissioners
are alleged to be in pari delict0 with the named former
County officials fhe ;wrpI
                         are therefore disqualified to bring
suit under the auth1rity of Hoffman v. Davis and the other
authorities discussed above. It is our opinion that the
incumbent County Treasurer is the official who has the duty
and authority to bring the suit.

                       S UMM,A   R Y
          Under the alleged facts the present
     county treasurer has the exclusive duty
     and authority to institute Suit to recover
     moneys unlawfully caused to be paid out
     of county funds by the named officials.
                             Very truly yours,
                             WILL WILSON
                             Attorney General of Texas
.‘r‘   .




           Honorable Steve Hurt, page 7 ('~~~~~-1227)




                                     BJ I. Raymond.Williams, Jr.
           1RW:lgh:kh                   Assistant
           APPROVED:
           OPINION COMMITTEE
           W. V. Geppert, Chairman
           Riley Eugene Fletcher
           Elmer McVey
           John Leonarz
           Vernon Teofan
           R,vEY:rEDFOR THE ATTORNEY GENERAL
           BY: Houghton Brownlee, Jr.
