December 19, 1961
Honorable Steve Hurt Opinion No. WW-1227
County Attorney
Hale County Re: Whether a County Attorney
Plainview, Texas has the duty and the au-
thority to institute a
suit on behalf of the
county against a former
county judge, a former
county commissioner and
all the incumbent commis-
sioners to recover for
the county moneys un-
lawfully caused to be
paid out of county funds
by the named officials
Dear Mr. Hurt: and related questions.
You have requested an opinion with regard to the
duty and the authority of a county attorney to institute
suit against a former county judge, a former county commis-
sioner, and all of the incumbent county commissioners under
the following alleged facts:
" Taxpayer has filed an action in the
64th District Court against the above named
county officials and former county officials.
The taxpayer has alleged that the named of-
ficials have caused to be paid from county
funds certain unlawful expenses. Among the
alleged unlawful expenses to be paid out of
the county funds by the defendants are included:
out of county traveling expense without
first incurring such expense; in county
traveling expense allowances while using
a county furnished automobile; out of
county traveling expenses by a commissioner
in excess of three hundred ($300) dollars
for one year; and various contributions to
private persons and organizations. It is
further alleged that one of the commissioners
lived in a house owned by the county, using
utilities at the county's expense, for several
months without paying the county any rent
for the same.
Honorable Steve Hurt, page 2 (W-1227)
"The taxpayer plaintiff has made demands
upon the county attorney to bring suit on
behalf of the.county against the defendants
for recovery of all the alleged unlawful
expenses.
"All of the alleged expenditures appear
to have been made by the County Treasurer at
the direction of the commissioners court.
The present County Treasurer was not the
County Treasurer at the time said expend-
itures were made."
Also, in a,telephone conversation with this
office on December 15, 1961, you made the following statement:
"A majority of the incumbent county com-
missioners who are presently charged with dere-
liction of duty were holding their respective
offices during the period of time the alleged
illegal acts were committed."
In addition to the foregoing alleged facts you
have submitted questions as follows:
"Does the county attorney have the duty
and the authority to file a suit in behalf
of the county against a former county judge,
a former county commissioner, and the present
commissioners to recover for the county moneys
unlawfully caused to be paid out of county
funds by the named officials.
"If the county attorney does not have
such duty and authority, what county official,
if any, does?
"Upon the facts alleged, coming to the
knowletigeof the county attorney, should no
other county official take any action to re-
cover the money for the county, would any
duty fall on the county attorney to file
a law suit for recovery on behalf of the
county?"
The questions that are herein involved have been
the subjects of much litigation In this State. It is now
well settled that a tax-payin? citizen has the right to
enjoin public officials fror making unauthorized expen-
.’ .
:
.. Honorable Steve Hurt, page 3 (WW-1227)
ditures of public funds. Hoffman v. Davis, 128 Tex. 503,
100 S.W.2d 94 (1937) Looscan v. County of Harris, 58 Tex.
Carroll v. Williams, 109 Tex. 155, 202 S.W.
However, it Is equally well settled that a tax-
paying citizen does not have the legal standing necessary
to maintain a suit for the restoration of moneys unlawfully
expended by a county official. Hoffman v. Davis
Lewrlght v. Lowe, 95 Te.x.157, 65 S.W. 1
~~n~~~~"51~~~31"4~W~l~~:j.(Civ; App. 190?? iarrell v.
As a general propositlon.of law the commissioners'
court is,charged with the duty and authority to bring a
suit on behalf of the county for the recovery of moneys
due it. In Terre11 v. Greene, 88 Tex. 539, 31 S.W. 631
(1895) the~court stated:
" .There are many instances in which
it might.be necessary to bring suits in the
name of the county, or in which suits might
be instituted against the co#nty not embraced
in the terms of Article 260. In such cases
the commissioners' court would have the right
to control the institution of such suits,
because it has not been committed by law to
any other officer or tribunal; . . ."
In Looscan v. County of Harris, supra, the District
Attorpey~;broughtsuit against Looscan, the Incumbent County
Attorney, and other county officials for the purpose of
recovering from Looscan certain moneys alleged to have been
illegally paid him under a contract entered into with the
commissioners' court and for the purpose of enjoining the
county officials from making any further payment under the
contract. The court held that the District Attorney was
without authority to bring the suit against the will of the
Commissioners' Court and stated:
”
. . .The Commissioners' Court undoubtedly
*Article 260 appears in the Revised Civil Statutes of 1925
as Article 336.
Honorable Steve Hurt, page 4 (W:i-1227)
has the right to cause suits to be Instituted
In the name of and for the benefit of the
county, and except Where a concurrent right to
do the same thing, or where an exclusive right
in a specified case or cases is conferred upon
some other tribunal or some other officer of
the government, the Commissioners~'Court must
be deemed to be the quasi executive head of
the county, vested with exclusive power to
determine when a suit shall be instituted in
the name of and for the benefit of the county."
‘(Emphasisadded) See also J. R. Phillips
Investment Company v. Road s,
172 S.W.2d 707 (Civ. App. 1943, error ref.\
Attorney General's Opinion No. o-6543, (1945).
However, where the suit is due to the dereliction
of a mojorlty of the members of the Commlssionerst Court,
it is the duty of the County Treasurer under the authority
of Article 1710 Vernon's Civil Statutes to institute the
proper suit or suits to recover,moneys due the county.
Hoffman v. Davis, supra; Attorney Generals Opinion No.
O-2117 (1940); Attorney General's Opinion No. O-66 (1939).
Article 1710 Vernon's Civil Statutes provides as follows:
"The County Treasurer shall keep a true
account of the receipts and expenditures of
all moneys which shall come into his hands
by virtue of his office, and of the debts due
to and from his county; and direct prosecutions
according to law for the recovery of all debts
that may be due his county, and superintend
the collectlon thereof."
In,the Hoffman v. Davis case the court cited
Looscan v. Harris County, supra, and stated:
"This court, after determining that
there was no statute authorizing the District
Attorney to institute the suit, announced
the rule that, since the right to do so was
vested in the Commissioners' Court, that
right must be held to be exclusive.
I,
. . .
"AS above pointed out, both the Commis-
..
Honorable Steve Hurt, page 5 (WW-1227)
sionerst Court and the county treasurer are
vested by statutes with the right to institute
this litigation. Since the former is in no
position to act, the right of the latter to do
so is exclusive, unless there is conferred
upon the County or District Attorney by Article
339 the concurring right . . . a question which
we need not determine."
The general authority of a county attorney,
in so far as civil actions are concerned is derived from
the Constitution and the statutes enacted by the Legislature.
The constitutional stipulation appears as Article V, Section
21, Constitution of Texas:
"A Zounty Attorney, for counties in which
there is not a resident Criminal District
Attorney, shall be elected by the qualified
voters of each county, who shall be commis-
sioned by the Governor, and hold his office
for the term of four years. In case of
vacancy the Commissioners' Court of the
county shall have the power to appoint a
County Attorney until the next general
election. The County Attorneys shall
represent the State in all cases in the
District and inferior courts in their
respective counties; but if any county
shall be included in a district in which
there shall be a District Attorney, the
respective duties of District Attorneys
and County Attorneys shall in such counties
'be regulated by the Legislature. The
Legislature may provide for the election
of District Attorneys in such districts,
as may be deemed necessary, and make
provision for the compensation of District
Attorneys and County Attorneys. District
Attorneys shall hold office for a term
of four years, and until their successors
have qualified."
The question of whether the county or district
attorney under the provisions of Article 339 has a con-
curring right with the county treasurer, where the commis-
sioners' court is otherwise disqualified to act, to Initiate
such a suit as is contemplated here was resolved in Bexar
County v. Davis, 223 S.!J.558, (Civ. App. 1920, error ref.)
Honorable Steve Hurt, page 6 (1fiq-1227)
In that case the District Attorney had sued the county
judge on the behalf of the county for .noneyhe had allegedly
unlawfully appropriated. The court specifically held that
a county judge is not such an officer as is "intrusted
with the collection or safe keeping of any public funds."
In the course of the opinion the court says further that no
other member of the commissioners' court is such an officer.
In addition the court held that Article 339 does not empower
a district attorney to bring an action against a county
judge for money appropriated as salary from county funds
in the safe keeping of the county treasurer. It was
further held in the same case as follows: "The County
Treasurer is not only the sole custodian of the money of
the county, but it is his duty to 'direct prosecutions
according to law for the recovery of all debts that may
be due his county, and superintend the collection thereof.'"
Although other civil statutes authorize.suit by
the county attorney on behalf of the county in particular
-cases, as for example Article 6716 Vernon's Civil Statutes
(Institution of suit against a treasurer who has diverted
county or city funds), we have been unable to find specific
authority or direction for the bringing of a civil suit
of the nature here involved.
Furthermore, because a majority of the incumbent
County Commissioners were holding their respective offices
during the period of time the alleged illegal acts were
committed, it is our opinion that since these commissioners
are alleged to be in pari delict0 with the named former
County officials fhe ;wrpI
are therefore disqualified to bring
suit under the auth1rity of Hoffman v. Davis and the other
authorities discussed above. It is our opinion that the
incumbent County Treasurer is the official who has the duty
and authority to bring the suit.
S UMM,A R Y
Under the alleged facts the present
county treasurer has the exclusive duty
and authority to institute Suit to recover
moneys unlawfully caused to be paid out
of county funds by the named officials.
Very truly yours,
WILL WILSON
Attorney General of Texas
.‘r‘ .
Honorable Steve Hurt, page 7 ('~~~~~-1227)
BJ I. Raymond.Williams, Jr.
1RW:lgh:kh Assistant
APPROVED:
OPINION COMMITTEE
W. V. Geppert, Chairman
Riley Eugene Fletcher
Elmer McVey
John Leonarz
Vernon Teofan
R,vEY:rEDFOR THE ATTORNEY GENERAL
BY: Houghton Brownlee, Jr.