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
Untitled Texas Attorney General Opinion
Combined Opinion