Honorable A. E. Hickerson
County Auditor
Montgomery County
conroe, Texas

Dear Sir:                    Opinion No. O-1935

                             Re:   Isit legal for the commis-
                                   sionersr dourt to pay out
                                   of the General Fund of the
                                   oounty the fee of attorneys
                                   employed by it to defend a
                                   suit contesting a road bond
                                   eleotion held in Precinct No.
                                   2.

          Your recent request for an opinion of this
department on the above stated qu&tion has been received.

            We   quote from your letbar as followsg   7'

          “Will it be legal to pay attorneys em-
     ployed by the commissioners court to defend an
    -election contest on a road bond election issued
     strictly for Precinct Two out of the General Fund.

          "As an explanation, there was recently held
     in this Comty Precinct Two, a road bond election
     and on face, carried by two-thirds majority and
     nineteen votes over. Some citizens have employed
     attorneys to contest the election, and the Corn-
     missioners Courtdeemed  it advisable to employ
     attorneys to defend this election.

          "The situation also involves a budget
     situation.  The Commissionerst Court in setting
     up the budget for 1940 allocated every penny of
     anticipated revenues for 1940, but did not provide
     a budget item for attorney fees only to the extent
     of $150.00. Eventually, the Commissionersr Court
     will pay these attorneys from $5,000 to $10,000.
Honorable A. E. Hickerson, Page 2, O-1935



          "1 have contended that the Commissioners
     Court could not amend the budget for this pur-
     pose, and that it must be paid, if paid at all,
     out of the bond money."

          We quote from Texas Jurisprudence, Vol. 11,
page 575, as follows:

          "The commissionersr court has power to
     employ attorneys to assist the regular con-
     stituted officers of the county in the prose-
     cution of its claims and suits, and to pay
     for such services out of the county funds.
     It seems, however, that the commissionersr
     court does not have the power to deprive the
     county attorney of his rightful authority in
     this regard. The employment of counsel is
     restricted to speoial cases where the services
     of an attorney are required; nor has the court
     power to make an order which will warrant the
     payment of county money to sn attorney for
     services neither required nor performed. Adams
     vs. Seagler, 250 SW 413, Gibson vs. Davis, 236
     SW 202, Terre11 vs. Greene, 31 SW 631, Glooms
     vs. Atascosa County, 32 SW 188."

          Under the holdings of the above mentioned oases,
it is apparent that the commissionerat court has-the power
and authority to employ attorneys in the prosecution of'
its claims and suits and pay for suoh services out of the
general fund of the county where the county, as a whole,
is interested and affected in such proceedings.   However,
there is nothing in these cases that would indicate that
the commissionerat court has the power to pay the fees of
attorneys out of the general fund where only a political
subdivision of the county or a body corporate is affected.
Under Article 637 of the Revised Statutes of 1911, a road
district was expressly declared to be a body corporate.
This article has not been re-enacted in thepresent stat-
utes and the Supreme Court has approved an opinion which
announces that a specified road district "may be a body
corporate... I'in the case of Winder Bros..vs. Sterling,
Honorable A. E. Hiciterson, Page 3, O-1935



12 SW 2nd 127; 14 SW 2nd 802.
           In the case of ..
                           Gibson
                             .    et
                                  . al vs. Davis, et al ,
                     .
236 SW~ 202, among otner tnings, It was held that con-
tracts for payment of attorney's fees by the county
commissioners* court, to get up bond records, prepare
petition for bond election, arrange for the printing of
the bonds, obtain the approval thereof by the Attorney
General and secure the opinion of a bond attorney as to
the validity of road district bonds, --
                                      are not invalid
because the law requires the Attorney General to examine
and approve all bonds,records, etc., the above services
not being such as required of the Attorney General. This
opinion clearly indicates that the above mentioned ser-
vices performed by said attorneys must be performed at
the expense of said road district.
          In the case of Stokes et al vs. Paschal1 et
al, 243 SW.611,  it was held among other things that
where a commissionersr court in the exercise of sound
discretion finds it to be reasonably necessary to em-
ploy bond brokers to aid in the sale of bonds of a
road district, they may do so and lawfully pay a reason-
able commission out of the proceeds of the bonds so sold,
the commission being an expense incident to the issuance
of the bonds.   In this case the question was not raised
as to whether or not the commissionersr court could pay
the above mentioned commission out of the general fund
and, the court stating that this question was not raised,
did not pass upon the question.   In this connection the
court used the following language:

          We have not cbeen called upon to deter-
     mine, nor do we determine, that the agreement
     of"the commissioners' court to pay Breg, Car-
     rett & Company $13,800.00 out of the general
     fund of the county is void." See Article 752q,
     Vernon's Civil Annotated Statutes.

          After a careful search of the statutes and nu-
merous cases, we are unable to find any authority that
authorizes the commissioners r court to pay attorney's fees
Honorable A. E. Hickerson, Page 4, O-1935



out of the general fund for the above mentioned pur-
pose. Therefore, your question must be answered in
the negative.

          Trusting that the foregoing fully answers
your inquiry, we remaFn


                                  Yours very truly

                             ATTORNEY GENERAL OF TEXAS

                             s/ Ardell Williams

                             BY        Ardell Williams
                                             Assistant


AW:hW/c&


APPROVED FEB. 24, 1940

s/ Gerald C. Mann

Attorney General of Texas
                                                     -._


Approved Opinion Committee

By SfB, Chairman
