Untitled Texas Attorney General Opinion

TE-XE ATTORNEY GI~CNEIRRAB~ OF TElxAs AUSTIN. TRKAS 787ll March 4, 1975 The Honorable John F. Perry Opinion No. H- 544 County Attorney Hopkins County Courthouse Re: Liability of a county for Sulphur Springs, Texas 75482 the expenses of a court of inquiry. The Honorable Henry Wade District Attorney Sixth FloorRecords ,Bldg. Dallas. ~,Texas ,75202 ” ” z. Gentlemen: .,Each of .you has requested our opinion on questions concerning expenses growing out of a court of inquiry. Mr.. Perry,asks: .~.. Is a county obligated to pay reasonable and necessary’expenses incurr.ed in pieparation for *~ a. court of,inquiry?’ ._ Is the fee to the Court’Reporter of’$L50 per page for.an original alld a copy a reasonable fee, and a fee which. the District Judge,within his discretion may oidkr the County Commissioners Court to pay? Must Dallas County pay for the services of a special prosecutor appointed by the judge of a court of inquiry to conduct the court of inquiry? p: 2443 The Honorable John F. Perry The Honorable Henry Wade page 2 (H- 544) All of these questions relate to the authority of a district judge to obligate the county to pay expenses growing out of a court of inquiry. We note that a county judge is also authorized to conduct courts of inquiry, and thus the answer is applicable to either of these officials conducting a court of inquiry in his capacity as a magistrate. Code Crim. Proc. art. 52.01. The rule is that the commissioners court is the general business and contracting agency of the county, and it alone has authority to make contracts binding on the county, unless otherwise provided .- by statute. Anderson v. Wood, 152 S. W. 2d 1084, 1085 (Tex. 1941). In this case, the Texas Supreme Court held that the sheriff has no authority to hire or fire necessary courthouse and jail employees, reversing a court of civil appeals’ determination that the duty to have charge and control of courthouse and jail includes the right to employ necessary employees to assist him. The following cases illustrate the application of the rule: Willacy Countv v. Valley Baptist Hospital, 29 S. W. 2d 456 (Tex. Civ. App. --San Antonio 1930, no writ hist.) (county judge could not authorize employment of other than county health officer for injured person without authority from commissioners court); Collin Countv v. Schultz. 243 S. W. 609 (Tex. Civ. App. --Texarkanz~l922. no writ hist.) (county school trustees without authority $,o obligate county to pay ,for’school redistricting maps. even though under’duty to redistrict); Sparks v. Kaufman Countv. ,194 S. W. 605 (Tex. Civ. App. --Dallas 1917, writ. ref’d) (county clerk without authority to obligate county to pay for typewriter or stamps. even though necessaiy~ to conduct office); American Disinfecting Co. v. Freestone County, 193~s. W. ‘440 (Tex. Civ. App. --Dallas 1917, no writ hist.) (sheriff has no authority to obligate’county to pay for disinfectant used in discharging duties to keep courthouse and jail sanitary); Germo Mfg. Co. v. Coleman County, 184 S. W.- 1063 (Tex. Civ. App. --Austin 1916. no writ hist.) (sheriff, no authority tomobligate for disinfectant); and Fayette County v. Krause, 73 S. W. 51 (Tex. Civ. App.-1903,writ ref’d) (individual commissioners may not obligate county on contract). p. 2444 The Honorable John F. Perry The Honorabie Henry Wade page 3 (H-544) In light of this rule and these authorities, the answers to your questions depend onwhether statutory authority exists for the judge conducting the court of inquiry to obligate the county to pay the expenses in ques~tion. Chapter 52 of the Code of Criminal Procedure authorizes the conduct of courts of inquiry. The only provision relating to expenses is article 52.09, which states: All costs incurred in conducting a Court of Inquiry shall be borne by the county in which said Court of Inquiry is conducted; provided, however, that where the Attorney General of Texas has submitted a request in writing to the judge for the holding of such Court of Inquiry, then and in that event the costs shall be borne by the State of Texas and shall be taxed to the attorney general and paid. in the same [sic] and from tbe same funds as other court costs. The word “costs” is not defined in the Code of Criminal Procedure, but it is used in other provisions of the Code to refer to statutor~ily prescribed fees which may be taxed to a convicted defendant or the State such as those allowed a.peace officer for summoning witnesses and executing criminal process. See ec g., Code Grim. Proc. art. 53.01, et seq., and Code Crim. Proc.. arts 1001c1081. The reference in article 52.09 to the obligation of the State to pay costs of courts of inquiry initiated by the Attorney General “from the same funds as other court; costs” indicates that the Legislature used the term “costs” in this limited sense. Thus, it is clear that a county is obligated to pay the “costs, ” i. e.,, statutorily prescribed fees incurred in conducting a court of inquiry. Article 52.07 of the Code of Criminal Procedure requires that a transcript be made but does not specify a fee for such service: All evidence taken at a Court of Inquiry shall be transcribed by the court reporter and proceedings shall be open to the public. p. 2445 The Honorable John F. Perry The Honorable Henry Wade page 4 (H-544) Article 11.07 of the Code of Criminal Procedure requires a court reporter to prepare a statement of facts in a hearing on a writ of habeas corpus but,the statute fails to provide for payment in the case of an indigent petitioner. In Attorney General Opinion H-69 (1973) we held that the court reporter is entitled to be compensated by the county or state for preparing the transcript. This office has held on several occasions that the cost of preparing a transcript may be charged as an expense against the county by the district or county attorney as a reasonable expense necessary in the proper and legal conduct of his office under article 3899, section (b), V. T. C. S, It has been so held in connection with transcripts of an examining trial, Attorney General,Gpinions, M-303 0968) and V-976 (1949) ; at an inquest, Attorney General Opinion V-538 (1948); before a grand jury, Attorney General Opinion WW-1334 (1962); and of a tape recording of a radio pro- gram, Attorney General Opinion WW-874 (1960). As was stated in Attorney General’Opinion ,WW-1334 (1962): “Certainly a diligent District Attorney would want to preserve such testimony for his own use in the event of trial. ” In requiring a transcription of the evidence in a court of inquiry to, be made, the .Legislatureapparently presumed that it would beg of some value to the appropriate eprosecuting,officials, and thus of benefit to -the’, county. In our wnion the Legislature -intended,.the term, “costs” as used 8 irrdrticle 52.09 &include,.the ‘expense of preparing the transcript,which ‘is ~specifically~requiied to be ~made by article- 52.07. ...I~ Mr. Wade asks whether-a rate:of $1.50.,per page foran original and copy of a transcript is a reasonable fee-which the district judge may order the commissioners court to pay. The reasonableness of a particular rate is a question of fact which we must decline to. answer. However, a similar question was considered in Attorney General Opinion C-683 (1966). The opinion held that in the absence of a statutory provision setting forth the amount to be paid for a transcript required to be.prepared,at county expense, a reasonable amount should be p. 2446 The Honorable John F. Perry The Honorable Henry Wade page 5 (H- 544) paid. --See also Attorney General Opinion H-69 (1973); M-303 (1968); M-248 (1968); C-785 (1966); WW-874 (1960) and V-976 (1949). Mr. Wade’s question refers to an order of the district court to the county commissioners court to pay the court reporter. We observe that the capacity in which the judge acted was not as district judge, but magistrate, and the only orders authorized to be issued in courts of inquiry are subpoenas and arrest warrants. See In re McClelland, 260 F. Supp. 182 (S. D. Tex. 1966); State ex rel. Richardson v. Coleman County, 56 P. 2d 1023 (Wash. 1936); State v. Major, 192 P. 618 (Mont. 1920). Cf. In re Mercer County Probation Department, 263 A. 2d 168 (.N. J. Super?X. rApp. Div. 1970). The magistrate holding the court of inquiry is responsible for the proceedings, and ,he is the appropriate official to certify~what costs were incurred in conducting the court of inquiry~and what reasonable amount should begpaid for-the transcripts. The law presumes that a public officer has exercised his discretion in accordance with the law until the contrary is shown. 47 Tex. Jur. 2d Public, Officers § 118. If the magistrate’s determination as, to the reasonable-value of the transcript.is disputed, the burden rests with the Commissioners Court to show thatthe determination is so unreasonable, arbitrary or capricious as to amount to.an abuse.of, discretion. Commissioners Court of Lubbock County v. Martin, 471 S.W.. 2d ,100, 108 (Tex. Civ. App. --Amarillo 1971, writ ref’d n. I. e. ). d’ Another expenses about which each of. you inquire is compensation for’,a, private attorney to assist in the conduct of the court of inquiry. There is no specific authorization for the appointment of an attorney to’participate in a court of inquiry. Tbere.is no express authorization for any attorney to represent the state in a court of inquiry, as there is in an examining trial [Code Grim. Proc. art. 16.061; before the grand jury [art. 20.031; in a habeas corpus proceeding [arts. 11.07, 11.391; and an inquest upon a dead body [art. 49.121; or in a fire inquest [art. 50.021. p. 2447 The Honorable John F. Perry The Honorable Henry Wade page 6 (H- 544) However, it has been held that: It has always been the principal duty of the district and county amrneys to investigate and prosecute the violation ‘of all criminal laws, including the election laws, and these duties cannot be taken away from them ,by the Legislature and given to others. (Emphasis added) Shepperd v. Alaniz, 303 S. W. 2d 846, 850 (Tex. Civ. App. --San Antonio 1957, no writ hist. ). As a matter of practice, it appears that courts of inquiry are some- times held upon the initiative of the district attorney and pursued by him. See McClelland~v> Briscoe,~ ,359 S. W. 2d 635 (Tex. Civ. App. --Houston 1962, writ.ref’d n. r. e.); Ex parte Jimenez. 317 S. W. 2d 189 (Tex. 1958). Also, the’exception inarticle 52.09 providing for payment of costs by the State “where. the Attorney General of Texas has submitted-a request in writing to the judge for the holding of such Court of Inquiry” indicates ~that the’legislature anticipated that courts~.of inquiry could be initiated by:an attorney representing the state.and, inferentially, that inthe usual situationit would be at the.instance of the district or counwattorney rather than the~attorney general. ‘~<_ ” In regard<0 the exclusiveness of the authority of .the county attorney, district ‘attorney, %nd,attotney general: to~,represent the,state,.:.see Garcia v. LaughliniiQ85:S; W. 2d~191~(Tex::.~Sup;-r1955);~Staples v;,rState exrel.~ Kin& 245 S. W. 639 (Tex. Sup. 1922); Maud v. Terrell. 200 S. W. 374 (Tex. Sup. ” 1918);: -Bridy.~v. .‘Brooks, 89% W.:g1052 (Tex. Sup.~~l905); Harris County v. Stewart, 41 S. W. 650 (Tex. Sup. 1897). ‘Since there i s n 0 _ s.ta.tu t 0 ry ~‘, authorization ‘forkthe appointment and compensation of a private attorney to represent the state in a court.of inquiry, .and sinc~e the above authorities indicate that it is within the general duty of the county attorney and district attorney to investigate the violation of criminal la~ws, it is our opinion that if the magistrate conducting the court p. 2448 The Honorable John F. Perry The Honorable Henry Wade page 7 (H- 544) of inquiry desires an attorney to represent the state in the inquiry, the county or district attorney should be called upon to perform that duty. If the county or district attorney is disqualified, absent, or otherwise unable to perform the duties of his office, an attorney pro tern may be appointed under article 2.07, Code of Criminal Procedure, and compensated as authorized under that article. See Attorney General Opinion H-324 (1974) (authority of district court lo ap=t attorney pro tern to assist grand jury). Mr. Perry asks generally about reasonable and necessary expenses incurred in preparation for a court of inquiry. In the absence of specific expenses we cannot answer the question definitively. However, we observe that the only actions a judge acting as magistrate is authorized to take in a court of inquiry are to summon witnesses, examine them, have their testimony transcribed, and issue a warrant of arrest. Articles 52.01, 52.07 and 52.08, Code Grim. Proc. In Attorney General Opinion H-439 (1974), we held that a grand jury has no independent authority to hire an investigator. We believe the same limitation would apply to a court of inquiry. Mr. Perry asks an additional question growing out of the following fact situation. The district judge scheduled a court of inquiry to inquire into the conduct of the district attorney’s office. Prior to the date, set for the court of inquiry, the district attorney filed ,a motion requesting the district judge to disqualify himself on the grounds of personal bias. The judge overruled the motion. The district attorney, in his individual capacity, petitioned the’federal district court to enjoin the district judge from proceeding with the court of inquiry. Upon a hearing, the federal district court issued an order enjoining the district judge from proceeding with the court of inquiry. The order was stayed and appealed to the United States Court of Appeal for the Fifth Circuit. The district judge secured attorneys to represent him in the federal proceedings, including the appeal of the order of the federal district court. The coinmissioners court has withheld its authorization to pay legal expenses pending this inquiry. p. 2449 The Honorable John F. Perry The Honorable Henry Wade page 8 (H- 544) You ask whether the county is obligated to pay reasonable and necessary expenses of attorneys for the district judge at the federal hearing and on the appeal of the order. We find no statutory authority for any public official to obligate a county to pay a private attorney to defend any suit brought against him in his individual capacity in a federal court. We do not believe that such expenses are within the meaning of the term “costs” as used in article 52.09 of the Code of Criminal Procedure. Each ,of you presented your questions in terms of a judge’s authority to obligate a county to spay expenses growing out of a ,court of inquiry, and not whether the commissioners court may. in its discretion, authorize or ratify the payment of such expenses. In this regar.d a .county’s interest in good law enforcement has been considered sufficient justification to authorize a commissioners court’s expenditures of funds for a reporter to transcribe grand jury testimony. Rodgers v. County of Taylor, 368 S. W. 2d 794, 797 (Tex. Civ. APP. --Eastland 1963, writ ref’d n. r. e.) and this office has held that a commissioners court has authority to employ an attorney to assist a grand jury. Attorney General Opinion M-823 ( 1971). Thus, while a county may not be obligated to pay certain expenses incurred in connection with a court ‘of inquiry, we believe that~the commissioners court may authorize or ratify reasonable/and necessary expenses in connection.with such a pro- ceeding, if it determines that ,it is.in ~the interest of.the county to do so. Among,the expenses which the county.may authorize or ratify are ,the costs of hiring an attorney. The.authority of a county commissioners court to employ counsel to represent county interests in suits, even when nominally against individuals, has been recognized. City National Bank of Austin v. Presidio County,- 26 S. W. 775 (Tex. Civ. App. 1894. no writ); Guerra v. Weatherly, 291 S. W. 2d 493 (Tex. Civ. App. --Waco 1956. no writ): Attorney General Opinion M-726 (1970). See Chandler v. Saenz,~ 315 S. W. 2d 87, 90 (Tex. Civ. App. --San Antoniox8, writ ref’d n. r. e.); City of Corsicana v. Babb, 290 S. W. 736, 737 (Tex. Comm. p. 2450 The Honorable John F. Perry The Honorable Henry Wade page 9 (H- 544) App. 1927, jdgmt adopted). These cases are in accord with the general rule in the United States that a public body, acting in good faith, may indemnify public officials for legal expenses incurred in suits brought against them for acts committed in discharge of their duties. Annot., 130 A. L. R. 736 (1941). Conversely, in any case where the public official acted outside of or beyond the scope of his legal powers, a public body has no authority to pay such legal expenses. Attorney General Letter Advisory No. 24 (1973). SUMMARY In a court of inquiry, a county is obligated to pay those costs for which a fee is expressly provided by law and the reasonable expense of activities expressly required to conduct the proceeding, including the original transcription of the statement of facts taken at’the court of inquiry. Code ‘Grim. Broc. art. 52.07, 52.09. . . The judge holding the court of inquiry may certify what reasonable amount should be paid ,the court reporter fqr preparing the transcription. A county is obligated to pay the compensation of an attorney pro tern to assist in the conduct of the inquiry when the.appointment is made in accordance with article 2.07 of the Code of Criminal Procedure. A county commissioners court may authorize or ratify expenses incurred in the conduct of a court of p. 2451 The Honorable John F. Perry The Honorable Henry Wade page 10 (H-544) inquiry which are in the interest of the county, including the expense of legal counsel to defend suits brought against the judge conducting the inquiry for acts committed in the discharge of his duties and within the scope of his authority. Very truly yours, APPROVED: - DAVID M. KENDALL, First Assistant C. ; RGBERT%EATH, Chairman Opinion Cornmittqe ./’ lg p. 2452