                          OFFICE OF THE ATTORNEY                                                           GENERAL OF TEXAS
                                                                               AUSTIN
                                                                                                                       January                    10,            1939


     Honorable E. E. Coons
     County Attorney
     Stratford,  Texas

     Deer Kr.                  Coons:                                                                                                            ',
                                                                                                                                    i             ',,

                                                                                          Opinion RI.                           o-45 v--
                                                                                          De! Feesof                            CCmuty'.,Attornep

                            Thle department acknowledges               receipt    of your
     letter             of January 4, 1939, the ztzeterial part of whioh\is
     quoted             as follows:                               '..                 '_
                                                               .      "\,                '_'
                            WShemen County, by'authority                 of its oorcmis-
                     sionersl    Ccurt,    intervenedtin        a.sui.t    in the Dis-
                     trict    Court of the United States at Abilene,                 Texas,
                     in which the City of German was.defendant,                    and
                     wherein it was soughtby            certsia       bondholders    to
                     obtain a judgment against           the said City of Corman
                     for principal      and interest       or its defaulted         bonds.
                     In its order authorizing           such intervention,          the
                     Ccmissioners'       :Court instructed         the County Attorney
                     to request     pemission      to.intervene,          and authorized
                     the employm.enb,oC'a       fin0 of attorneys            in Abilene,
                     Texas; .to., assist~,ixi$.he     suit.lf
                                                                               4
             .i' Jour‘ietter      also states   that there was an agreed
     judgmehtentered        by the Federal    Court, under which Sherman
     County is to reaeivs        certain  refunding    bonds and also is to
     partlbipate     pro i‘ata in the sinking      funds appertaining   there-
     to end Which had accumulated         to the extent of ?lZSC.
                 \   '\   '   _'
                   You* question,     upon whioh your request     for an opin-
     ion is predi~cs-ted,     is I

                           "Is a county attorney entitled    to the legal
                     commissions  on the money part of this judgment,
                     namely, ten per cent on the first    thousand dollars
                     and five yer cent on the recalnder,     ?260.00q?




                                                                                                                                                                  __   -,---   .--.   _
“0   COYY”“,C.I,“N        I*   10 .I   c”I*,I,,~”   . .   I   “PL.P.UFVT.1~   . . . . . ..n* I,.,,   .a.   I..“-,.--   -.I   -..-   .----..-..        --.,--.,
         I’r.   E. I?. Coons,    Zanuery    10,   1939,   Pege 2



            The writer   reels that to intelligently      answer
this question,   it should be reststed    in c,rdor to be in keep-
ing with the facts     of your case as sbove outlined.      Therefore,
we shall endeavor to answer the following        question   which in-
cludes the essential     part of ycur question:

             Is a county attorney     entitled  to the legal   com-
missions    authorized  under Artiale     335 in civil actions   where
money is recovered     end oollected    by him pursuant to instruc-
tions from the Commissioners1        Court of suoh county,    and where
such body authorized     the employment of special     counsel   to
assist   said county in proseoutdon       of the suit?

             This subjeat    has been treated     before   in opinions   by
this department,     namely, Opinion 2325, handed down on .1pril
6, 1921, end printed      on paoe 404 of Reports end Cplnionn of
the Attorney     General for 1920-1922,      end Opinicn 2673,, rendered
T’arch 19, 1927, and printed        on par7e 210 of Reports end Cpinions
cf the Attorney     General for 1926-1928.       Such opinions,     however,
were not based upon facts        directly   in point with your case,
but sufficiently     similar   to enabled us to quote one conclusion
which was reached in both of these opinions,             such conclusion
being-

             Wmhe county attorney    is not entitled  to com-
      mission   or fee under Article    375, Revised Civil
      Ptetutes,   1925, on money collected    by suit or
      otherwise   for the oounty,   exoept where it is the
      duty of the oounty attorney      to take action  in
      behalf or the county,”

              The Aats ot 1876, Se&ion        1, Page 283, Genera.1 Laws,
Volume.8,     pages 922 and 1119, define       the duties       of county at-
torneys,     and the rights    and duties    therein    ccnferred         are of
such nature as to reouire        him to Institute       certain       suits upon
his own volition.        This also lilrited     the county attorney            to
actions     in county courts    end inferior     ccurts    of his county,
except in the absence of the district            attorney    when he shall
represent     the State in all cases in the district              colirt.     UiS
Compensation for all ‘such services          was prescribed         therein.
Rowever, the oountp attorney        is authorized       by tke Constitution
to represent      the State in all ceses in the dlstrlct                 and inferior
courts    in his county,     and under the decision        of the ?upaeme
Court in the case of Feude vs. Terrell,             200 Z. Y. 375, the
legislature     can not take awsy from the county attorney,                  In a
county where there is no district          attorney,      the rl;tht to rep-
resent the State In all cases in the trial              courts.          The Consti-
tution    doesnotrequme         the dutles    of the county attorney              In
representing‘the      county.
Vr.   E. E.   Coons,   January   10,   1939,   Page 3



               In the case of ???radg vs. prooks,          a9 9. W. 1052,       the
Supreme Court stated          that “the prinoipal        purpose of the Consti-
tution     in oreatlng     the offices     of district     at:.orney   and county
attorney      was to make as the main funotfons            of these officers,
the proseoution        of criminal     cases.“’    Rowever,     the legislature
has from time to time conferred             additional      duties   upon these
officers,      but no authority      is found In the statutes          that makes
the county attorney         the representative        of the county in siiits.
As further       evidence   that the duties      and rights      of the county
attorney      prescribed    by the Constitution        were restricted,      we re-
fer to subsequent         Acts of the Legislature         conferring    additional
duties     an these offloers,       such as Article       0716 of the Revised
Civil     Statutes,    1925, which provides        that the county attorney
shall     represent    the county in certain        s’ults for demages. Clear-
ly, it is not the intention            of the Legislature        to make it the
right of the county attorney            to represent      the county in -all
actions.

           Article  334 of the Revised Civil     Statutes,     1925, pro-
vides that distriot   and county attorneys     shall    advise and give
opinions  to the various  ocunty and Freclnct      officers,    but this
does not mean that the Commissioners1       Court la required     to employ
the ccunty attorney   in all civil,  suits,   nor does it mean that
the county attorney   has the ri.yht to represeilt      the county in such
suits.

            In the case of Loosoon vs. Rarris      County, 38 Tex. 511,
the Supreme Court held that the Commissioners’         Court of a county
had the exclusive   right to determine whether a suit should be
brought in the name and for the benefit       of a oounty,    except in
a case where a concurrent     or exclusive  right   is conferred    on
some other official    or tribunal   by the Legislature     to exercise
in some speoified   case a like discretion.       The ccurt uses this
further  language:

              “The Ccmmissioners~       Court, presided     over by the
       county judge,      is virtually    a council    vested with power
       to manage and direct        all of such material       and flnan-
       cial   Interests     r.f the county as the laws of the state
       have confided      to its jurisdiction.        The manngement of
       the financial      affairs   of the county have alf:ays here-
       tofore    been vested in tribunals        which have existed       at
       different     times under various       names and designations,
       such as county court,        commissioners1     court,   etc.;   they
       have, however,       all been clothed     with similar    pov:ers,
       and like duties        have been imposed uron them. The corn-
       missioners’      court undoubtedly      has the right to cause
       suits   to Se Instituted       in the name of and for the
       benefit    of the county,      end except where a concurrent
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       r      T
                      -.
                     l7
                           Coons,   yanuary   10,   1939,   Face    4

                                                                              .

                   right to dc the Sal-e thin3,       or where an exclusive   ri,vht
                   in a speoified     onse or cases is conferred     upon some
                   other tribunal     or some other officer    of the Covern-
                   rent,    the cormfs?ioners~    court must be deemed to be
                   the quasi executive       head of the county,  vested ?lith
                   exclusive    poT>'er to determine when a sllit shall bo In-
                   stitute!    In the name of and for the benefit      of the
                   county.

                    The Co~~lssionera'          Ccurt has authority        to employ counsel
      to the exclusion       of the oounty attornsy          to institute        suits    In be-
      half of the county,        escept     actions    aeainst    office    holders    as pro-
      vided by Article       339, Fevised Civil         Statutes,      1925.    This was held
      heretofore     by this departrent          in Opinion 2673, above mentioned.
      This opinion      also held that the.Commissioners*                Court hes the au-
      thority    to employ counsel        to the exclusicn        of the county attorney
      to bring suit against         the ?ankd.n.q Commission for the recovery               of
      s?ounty funds under the Cuaranty Fank Fund Law on account of the
      bank (county      depository)     failure,     and the county attorney           Is not
      entitled    to any colrmission        on collections     made as a result         of
      said suit,     except as may be Provided           by contract       between the
      county attorney       and the Ccrmissionerst          Kurt.

                    It is the writer's      ccnclusion     thet you are not entitled
      to the commissions       under .;rticle    335 as a rrsult      of the money
      recovered     In the s:it    wherein Therman Ccunfy intervened,          as out-
      lined in your letter.         The matter of your prcsecuting         the inter-
      eats of the co!.nty,      pursuan t to an instruction        or authorization
      by the Commissioners'        Cn_urt, was not such as ten be construed
      to have been a r1B;b.t or duty prescribed            or conferred   by the Con-
      stitution     or Legislature    upon your office.        Therefore,   if you
      are entitled     to any compensation,        it must   be by reason of con-
      tract    between yourself     and the Ccmmissioners'        Court, and only
      such compensation       6s may have been fixed        in that ccntrast.
.                                                              Yours    respectfully

                                                            A'iTCTTEY EY?ZX~L CP 'l?:xAs
              'I
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