                             QfXficeof the TZittornep@eneral
                                            Mate       of Eexaa
DAN MORALES                                     June 29,1992
 ATTORNEY
      GENERAL

     Honorable Richard B. Townsend                         Opinion No. DM-133
     County and District Attorney
     Morris County Courthouse                              Re: Authority of the Morris County
     500 Broadnax Street                                   Commissioners Court to reimburse
     Daingerfield, Texas 75638                             private landowners for attorneys’ fees
                                                           incurred in right-of-way action against
                                                           another landowner (RQ-161)

     Dear Mr. Townsend:

             You ask whether Morris County (the “county”) may reimburse private parties
     for attorneys’ fees incurred in litigation. You describe the fact situation which gives
     rise to your question as follows: A corporate landowner sued the county to prevent
     the county from reopening an old county road which was the subject of a right-of-
     way dispute. Two other private landowners sued the corporation to gain access to
     their land via the same road. The corporation prevailed in both lawsuits, and now
     the two private landowners seek to have their legal expenses reimbursed by the
     Morris County Commissioners Court. You ask whether the Texas Constitution --
     particularly article III, section 52; article VIII, section 3; or article XI, section 3 --
     prohibits this use of public funds. We conclude that article III, section 52 of the
     Texas Constitution prohibits a county from reimbursing private litigants for their
     attorneys’ fees in the circumstances you describe.’

             Article III, section 52, provides in pertinent part:

                 [Tjhe Legislature shall have no power to authorize any
                 county . . . of the State to lend its credit or to grant public money
                 or thing of value in aid of, or to any individual, association or
                 corporation whatsoever . . . .



              ‘Because we conclude that the expenditure is prohibited under article III, section 52, we do
     not address whether it may also be prohibited under article VIII, section 3, or article XI, section 3. Nor
     do we address a court ordered award of attorneys’ fees to the prevailing party io a suit against the
     county, or attorneys’ fees awarded as part of a settlement in a suit against the county.


                                                      p.     688
Honorable Richard B. Townsend - Page 2         (DM- 13 3 1




Tex. Const. art. HI, 0 52(a). The purpose of this provision of the Texas Constitution
is to prevent “the gratuitous application of funds to private use.” Bmzoti County v.
Perry, 537 S.W.2d 89, 90 (Tex. Civ. App.-Houston [lst Dist.] 1976, no writ). See
genera@ Wiiatt, Conrtinrtional Resni&ns On Use Of R&k Money and R&Kc
Credit, 38 TEX. B.J. 413 (1975). While it is in the province of the governing body to
ascertain whether there exists a public purpose which justifies the expenditure of
public funds, see Attorney General Opinion JM-824 (1987) at 3, this constitutional
provision requires that the public receive consideration in exchange for its
expenditure and that it exercise some control over the use of the funds. Attorney
General Gpiiom JM-964 (1988) at 5; JM-768 (1987) at 4-S; Willatt, supra at 422.

         Cotmties and their commissioners courts have general authority over county
roads. See Ten Const. art. V, 0 18(b) (commissioners court to exercise jurisdiction
over county business as provided by law); V.T.C.S. art. 2351(2), (5) (commissioners
court to exercise general control over all roads in county); We have no doubt that a
county is generally authorized to employ counsel to represent it in connection with
litigation pertaining to county roads. Cf: Burleson County v. Giesemchlag 354
S.W.2d 418, 420 (Ten Civ. App.-Houston 1%2, no writ) (commissioners court
authorized to employ an attorney to prosecute condemnation suit); Galverton
Gnu@ v. Gresham, 220 S.W. 560, 562 flex. Civ. App.-Galveston 1920, writ refd)
(county’s authority to employ an attorney to assist in sea wall project necessarily
implied from general authority to construct sea wall). Furthermore, we believe the
county may use. public funds to prosecute road litigation protecting private rights
where the commissioners court determines that the litigation setves a public
purpose. Cf. Young v. City ofHouston, 756 S.W.2d 813 (Tex. App.-Houston [lst
Dist.] 1988, writ denied) (city may use public funds to prosecute violators of private
deed restrictions where doing so would serve.public purpose of regulating land use).

        We conclude that a county may not reimburse a private party for litigation
expenses unless the litigation serves a public purpose and the governmental body
actually employs the attorney. When a county employs an attorney, the county
receives consideration, ic, legal services, in return for attorneys’ fees. In addition,
the county’s contract with the attorney supplies the requisite control regardless of
the outcome of the suit. See, e.g., Attorney General Gpinions JM-824, JM-755
(1987); MW-373 (1981). This is not the case, however, in circumstances such as you
describe where a private party, rather than the county, actually employs the
attorney. In the situation you describe, the attorney employed by the private
landowners undoubtedly performed legal services in return for attorneys’ fees, but
that consideration went to the private individuals who employed the attorney, not to
the county. Nor was the attorney subject to the control of the county during the

                                        p.   689
Honorable Richard B. Townsend - Page 3                (DM-133)




progress of the lawsuit. Under these circumstances, even if the litigation served a
public purpose, reimbursement of the private landowners’ attorneys’ fees would be
an unconstitutional grant of public funds to private individuals, and is therefore
prohibited under article III, section 52 of the Texas Constitutional Therefore, we
conclude that a county is prohibited from reimbursing the private landowners for
attorneys’ fees in the situation you describe.

                                      SUMMARY

                Article III, section 52 of the Texas Constitution prohibits the
           Morris County Commissioners Court from reimbursing private
           landowners for attorneys’ fees they incurred in a right-of-way
           action against another landowner.




                                                           DAN      MORALES
                                                           Attorney General of Texas

WILL PRYOR
First Assistant Attorney General

MARY KELLER
Deputy Assistant Attorney General

RENEAHICKS
Special Assistant Attorney General

MADELEINE B. JOHNSON
Chair, Gpinion Committee

Prepared by Mary R. Crouter
Assistant Attorney General

         ?iee dso Attorney General Opinion DM-107 (1992) at 4 (“we are not aware of any other
authority for the. proposition that a governmental entity may reimburse a public ofIicial or employee
[for Iegd expenses] after the person has incurred I@ expenses’) (citing Letter Opinion No. W-93
(19!m)) (emphasis in oligjd).

                                                p.   690
