Honorable John A. Menefee      Opinion No. ~~-1464
County Attorney
Upton County                   Re:   The liability of Upton
Rankin, Texas                        County for.payment of fees
                                     to private attorneys for
                                     services rendered In behalf
                                     of the County and two County
                                     Commissioners In contempt
Dear Mr. Menefee:                    and habeas corpus proceedings.
          Your request for this opinion raises a question as to
whether the County may pay forlegal services performed for indi-
vidual Commissioners in view of the prohibittons contained in
Article 2340 of Vornonts Civil Statutes AndyArticle 373 of the
Penal Code. The text of these statutes follows a summary of the
fact situation.             .'
          A series of,actions began on August 24, 1959, with the
filing of suit in the district court by a citizen to enjoin the
County Commissioners from using county equipment to perform certain
work for private Individuals on'private property. The defendants
named were Upton County, its four County Commissioners and the
County Judge.
          On January 19, 1961, the court entered an agreed judg-
ment to the effect that only Upton,County Itself should be en-
joined but none of the Commissioners personally, and the judgment
dismissed the action as to them. A Writ of Perpetual Injunction
was ordered restraining and enjoining Upton County, its agents,
servants, officers and employees, from performing the prohibited
actions.-
          Subsequently, plaintiff filed an affidavit of contempt
and this was followed by a hearing. By order dated February 19,
1962, the Court concluded that the acts complained of were a
violation of the permanent injunction. It was decreed "that
Upton County, the County Comm~salonersl Court and the official
members thereof, each and all" be found.gullty of contempt, and
further sentenced two Commissioners to jail for specified periods,
"whereupon," you state, "the Commissioners, and/or Upton County
employed a firm of attorneys to represent Upton County." The
attorneys apparently represented Upton County and the Commissioners
in the contempt hearing. Thereafter, the attorneys represented
only two Commissioners In an original habeas corpus proceeding in
.



    Hon. John A. Menefee, page 2 (wW-1464)


    the Supreme Court of Texas, the same being reported in 357
    S.W.2d 740.
              Article 2340, Vernon's Civil Statutes, "Oath and
    Bond," under the general section on Commlssloners Courts is
    a8 follows :
             "Before entering upon the duties of their
        office, the county judge and each commissioner
        shall take the official oath, and shall also take
        a written oath that he will not be directly or
        Indirectly Interested In any contract with, or
        claim against, the county In which he resides,
        except such warrants a8 may Issue to him as fees
        of office. Each commissioner shall execute a bond
        to be approved by the oounty judge in the sum of
        three thousand dollars, payable to the county
        treasurer, conditioned for the faithful perform-
        ance of the duties of his office,,that he will
        pay over to his county all moneys Illegally paid
        to him out of county funds, as voluntary payments
        or otherwise, and that he will not vote or give
        his consent to pay out county funds except for
        lawful purposes.'
              Article 373,_Vernonls Penal Code, entitled "County
    or city officer interested in contracts," is as follows:
              "If any officer of any county, or of any
         city or town shall become In any manner pecu-
         niarily Interested lh any contracts made by such
         county, city or town, through Its agents or other-
         wise, for the construction or repair of any bridge,
         road, street, alley or house or any other work under-
         taken by such county, city or town, or shall become
         interested In any bid or proposal for such work or
         in the purchase or sale of anything made for or on
         account of such county, city or town, or who shall
         contract for or receive any money or property, or
         the representative of either, or any emolument or
         advantage whatsoever In consideration of such bid,
         proposal, contract, purchase or sale, he shall be
         fined not less than fifty nor more than five hun-
         dred dollars."
              It is apparent that in the instant proceedings arising
    in Upton County, the services performed by these attorneys were
Hon. John A. Menefee, page 3 (wW-1464)


partly in behalf of Upton County and the Commissioners, and
partly in behalf of the Commissioners only. The attorneys have
now billed Upton County for legal services in representing
Upton County and the,County Commlssloners In the contempt hearing
and the habeas corpus proceedings.
          Two closely related principles of law govern the right
of a county to pay these fees. The courts and this office have
many times upheld the power and authority of the county to employ
counsel to represent the county in matters that directly concern
the county business. Some of the ,holdlngsdescribe the services
permitted as where the county, as a whole, is Interested and af-
fected.           Sea ler 112 Tex. 583, 250 S.W. 413; Cit
National Adams
         Bank v'+us In v. Presidio County 26 S.W. 775; -3
General's Onlnions Nos. o-1440, O-4955, an: V-232. This i~%~~y
moreover, even though the plaintiff-in-a suit names only one or .
more of the commissioners or the County Judge as defendants, and
not the county per ,s,e,
                       as long as it concerns proper county busl-
ness.  City National Rank v. Presidio County, supra, Attorney Gen-
eral's Opinion No. O-1440 (copy attached).
          The second principle, however, rules out the payment
of attornevs' fees for services in behalf of individual commis-
sioners If in violation of the above statute. The decision in
State v. Averlll, 110 S.W.2d 1173 (Civ.App..l937, er~rorref.),
pertains to city commissioners, also controlled,by Article 373
of the Penal Code and by Article 988, Vernon’s Civil Statutes,
the latter statute being similar to Article 2340. The Court
said at page 1174:     -
          I8 . .constitutional, statutory and charter
     provisions upon the subject condemn as unlawful
     the acts of the members of a city commission In
     binding the clty,.by ordinance and contract, to
     pay out public funds,to attorneys or others for
     services rendered In behalf of such commissioners
     in defending them against prosecutions for of-,
     fenses charged against them, either In their
     private or official capacity, in the courts of
     the land. Const. art. 1, P. 3; article 3, PP.
     52, 53; article 988, R.S. 1925; article 373, P.
     C. 1925; sections 59, 65, 66, Charter City of
     Del Rio."
          We believe the facts present a situation wherein Upton
County through its Commissioners1 Court properly employed the
Hon. John A. Menefee, page 4 (WW-1464)


attorneys to represent the County and Its Commlssloners~ Court
beginning Immediately after the filing of the plalntlffts affl-
davit charging violation of the court's Injunction and through
the judgment and order of February 19, 1962.  However, It would
have been Improper for the county to employ attorneys to repre-
sent the lndlvidual Commlssloners, either Individually or In
their official capacity, after this date.
          It 1s Indicated In prior opinions of this Department
that the contract between the County and the attorneys is en-
forceable, however, as to that portion of the fees attributable
to services rendered for proper county business, even though
services were rendered for Improper matters at the same or dlf-
ferent times. This Is approved In Opinion No. V-232, supra,
(copy attached).
          It Is a question of fact as to the division of the
total claimed fee between proper and improper services.
          We think the foregoing answers the general question
raised by your request, but there remains to answer a more
specific query which Is:
          "Does the fact that the County Commissioners
     may have to serve jail time or pay a fine as a
     result of the contempt hearing and habeas corpus
     proceedings show such personal Interest in the
     contract for attorneys fees that would prohibit
     Upton County from paying the claim of said at-
     torneys?"
          Here the end cannot justify the means. Whether the
commissioner Is right orthinks he Is right,,or that he is sub-
sequently determined so, cannot have any effect on the propriety
of a county employing attorneys to represent the commissioner
individually, either In his personal or In his official capacity,
where the matter Involved does not affect the business of the
county as a whole. City National Hank of Austin v. Presidio
County, su~ra; Attorney General's Opinion 'No. o-1440.

                     SUMMARY
          It Is a violation of Article 2340, Vernon's Civil
     Statutes, and of Article 373, Vernon's Penal Code, for
     a county commlssioners court to pay a fee to an attorney
     for representing an individual commlssloner who Is charged
     with violating a district court judgment enjoining a
     county, Its commlssloners court and the official members
Hon. John A. Menefee, page 5 (~~-1464)


     thereof from performing acts which are not proper
     county business.
            Where an attorney Is employed by the county
     to perform proper legal services, as where the
     county as a whole Is Interested and affected, and
     at the same time to represent an individual commls-
     stoner   for a matter not directly concerning county
     business, payment of the attorney's fee may be
     enforced only as to that portion thereof attrib-
     utable to proper county business.
                                  Sincerely,
                                  WILL WILSON
                                  Attornev General of Texas

                               -“- .-
                                  Scranton Jones
                                  Assistant
SJ:mkh
APPROVED:
OPINION COMMITTEE
W. V. Geppert, Chairman
Frank Booth
Paul Phy
L. P. Lollar
REVIEWED FOR THE ATTORNEY GENERAL
BY: Leonard Passmore
