~-863
OFFICE OF . - ?03
THE A~ORNEY GENERAL
AUSTIN. TEXAS
PRICE DANIEL
*TTmwzY GENERAL October 28, 1947
.Hon. Ii.P. Guerra, Jr. opinion NO. v-416
Cohnty Attorney
Starr county Re: Authority of the Com-
Rio Grande City, Texas mIssIonera Court to
retain counsel under
the submitted facts.
Dear Sir:
We refer to your letter requesting an opinion
as to whether the Commlssloners~ Court of Starr County
has the authority to employ an attorney to draw up the
necessary orders and instruments for redistricting of
the commlssloners~ precincts, justice prealncts, and
election precincts in actiordancewith an order passed
by the Commissioners1 Co&t. The County Judge and two I
commissioners voted in favor of the order and two com-
mlssloners voted against said order.
You ask also whether the Commlsslonersg Court
baa the authority to employ an attorney to represent It
iu defense of a suit seeking to enjoin the carrying out
of the above metitionedorder.
We quote.,thefollowing pertinent statutory
provlslons:
"Art. 2343. Aby three members of the'
said court, Including the county judge, shall
constitute a quomnn for the transaction of
an; ~ufilness,except that of levying a county
.
"Art. 2351. Each commlssloners court
shall:
"1. Lay off their respective counties
into prealncts, not less than four, and not
more than eight, for the elctlon of justices
of the peace and codstabltis,fix the times
and places of holding justices kourts, and
shall establish places In suoh precincts
where elections shall be held; and Shall
. :_.:
,.~..:
;I T_ 104 L’. Ii. P. Guerra, Jr.
Hon. - Page 2 v-416
establish justices precincts and justices
Courts for the unorpnlzed counties as pro-
vided by law. . . .
"Art. 2933. Each commissioners court
may, If they-.deem:Xtproper,,at each August
term of the court, divide their respective
counties, and counties attached thereto for
judicial purposes+,into conven~entl.elec,t+n
precincts; 'each.of"which shall be diff~r,~nt;ly,:..I.:.
. numbe~d.and~:descrlbed by natural or"art$fi‘-',:l.~.Y:
.:-cLal~bcl?qlar$es
or survey llpes,,by,anior;der..~'.
,:,
to..be:.enter@...upon
the minutes of the court.
.-',:They:j'~hal~..~~edlately
thereafter publish
such'orddr'in'some newspaper In the county
for three consecutive weeks. If there be.no ~.:..
newspaper in the county, then such copy oft
*~. ~.i~,,By;~~~~~~:~.os~
+e+abave guoted,:@atatory Pro-
visi~~p~~~~~~~.l~ylng,,~~.,~f~~~oijlio2L)~jopers!~~~~~~nct
jus-
tice,Yprecincts;.~~~d,:electSoq:jpirii!~inc‘t.~;:~~.~:.:~~t
of.
cbkiti"~6 'the'county. It%~f#~$Qp~$4~~ $ha,tin spe-
clal matters where the interest of the county may require
the.services of.an:attorney,~.a,,~o~~sgio~~r?.! Court has
the'power and authorlty'to hire counsel to aidthe Com-
missioners' Court In carrying out Its duties and also to
represent..:the..c~.ya~~~-;~ln.,-l~~e~~I!thatl,dlrec.tly
concern
county;business~.;~
.~aepls:.v,;;Selgler;:,~l12; 188; Gibson
$.I,:.W.
V. Davis;,.,236.;'S,i:W.:
.202,,.:?12:;~1~.~~~~~ston
C.ounty.,v...Gresh-
am, 220 $ic,rW,
260;.&i Tex,!c..Jyr,r,
57& I .:
-:...;::-:
Under the facts presented In your Inquiry, the
Commissioners'.Court,,elpploge,~,,an
attorney-,@?draw the
necessary.orders 'to carry out such changesand redls-
trlcting of commlsslonerst precincts, justice precincts,
and election p~ecincts.~.,,,Qln~e~:th~~Fo~,~ss~oners~Court
had the.:powerto~~:laycff-!~uch,,pseqincts,~
italso had the
authority:to:employ:an.attqrng.:~~oprepctre;the~ necessary
orders to carry,..,out
:such-pov.ep.s:l.z,
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~,Bianswer to yoUr s&and question, we *efer
gou tO'tha CaS8'of City "National.Bank ~of-dustinvi Pre-
sidio.Cormty, 26 S..lf. 775, wherein i&was held that the
CoImnissloners~CoUrt was authorized to employ counsel to
*present the Commlssloners! Cow$ln a suit which was
brought against a coUnty jtige and commlssloners to en-
join the alleged 1118g41 action of the Qnninlssldn8rst
court in removing th8,COtltltyseat 6f Pr8Sldl6 OoUnty
fr.amFt. Davis to Maris, ,The .CoUrt held that while the
Suit was ~ncmlnallyagainst them as lndlvldasls, its de-
siga'and effect was to control the performance of thelr
official acts aUd was a matter of concert&to th8 county.
We quote the following:
w8 aXW'Clearly of oplnion~that the com-
miSSlOn8rS.dld not~exceed th8ir powers in the
employment of the attomeys, 86 far as the
suit of Carothers against the.~oun~~{d~,
and commlssloners was concerned.
*as ncmlnally axsuit against them as lndlvi-
duals, .ltsdesign and effect was to obstruct
and~control the performance of the offlclal
acta, and W8 are not disposed to hold %n such
a case that they must,do nothing towards de.-~
fending such suft,.or,~~must
employ~caunsel at
their own expense. They had power to employ
couns81, and to defray the reasonable expense
thereof out,of the county~funds."
The Court also held that the right to employ
counsel was not dependent upon whether the order of the
~Commlssloners~Court which was under attack'waa valid or
Invalid. 'We quote,the .followlng:
ItInOFd8r'tO assw8 a speedy, certain,
and proper.declslon of the question, the com-
mlssloners doubtless conoluded tbatboth the
cases should be properly prepared and pre-
sented, and we do not believe they abused
their authority In employing counsel to ac-
complish this. It was in pursuance of their
duties to do SO. We conclude for these rea-
rioasthat the employment of counsel In the
case'of Stat8 v. Carothers was a legal exer-
,CiS8 Of pOW8r on the part Of the COUUtliSSiOn-
ers, done in the lntezest and bus$ness of the
county. These views are supported by author-
Hornblower v. Duden 35 Cal. 664s Dos-
~~~*v. Howe, 28 Kan. 353;'Ellis v. Wasioe
.
106.~tEon . ii.P. Gu&ra, Jr. - Page 4 v-416 .:
Co., 7 Rev. 291. Thg validity of their acts
was uot affected by th8 fact that th8Y were
miStak8n. or that there was an adverse'deci-
sion of the auestlon. It has been freauentlg
held that the Dower cannot be measured bs.
such a rule." (Emphasis ours)
Although the suit In the Instant case was nomi-
nally~against th8 two commissioners and the county judge
Of Starr County who voted affirmatlv8ly to carry out such
redlstrlctlng, it is our opinion that Its design and ef-
feet was to Control the performance of the Commissioners~
Court's offlclal acts and was a matter of concern to the
county under the rule laid down In the Presidio County
case. Therefore, the Commlssloners~ Court had the power
to employ an attorney to represent them.,
We note that according to your request, the
county auditor has refused to approve the account pre-
sented by such attorney for services rendered by hImto
the Comalssionars~ Court bn.th8 ground tbat.the amount
to be paid him Is exorbitant and excessive. This Is a
fact question which this office cannot pass upon. ~Eov-
ever,iit is our opinion that the CommissFoners' Court of
Starr County had the power to employ couns.elto perfop
the services mentioned in your request and to pay such
attorney a~,r8aSonabl8sum.
The Commlsslonersl Court la authorized to
FJIIlplOy
COIlUSe t0 prepare n8c8SSal'yOl'd8r8t0
carry out the redlstrlctlng of commlssloners~
precincts, just108 preclncts'and electI+ pl'e-
clncts, and to represent the CommIssIonera
Court In an action brought by Individuals to
enjoin the Court frca~puttlug Into 8ff8Ct'~SpCh
r8dlst~lcting and pay such attorrMy~a'reasonabl8
sum for the services rendered. Gelveston Co&ty
v. Gresham, 220 S. W. 560; Qrooms v. Ati3scosa
county, 32 s. w. 188.;City National Bank of AUS-
tin v. Presidio County, 26 S. W. 775.
Very truly yours
APPROVED:~ ~~ATTORI@XGEBEFiALOFTXAS
._
ATTORHEY QBRERAL Assistant
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