R-443
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TORSPY
,iK.~~",\l. June 2, 1547
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Hon. Wayne L. Hertman Opinion No. V-232
County Attorney
DeWFtt County Re : Authority of Commls-
Cuero, Texas sioners’ Court to re-
fund attorney’s fee
paid by a commls-
sioner in defense of
an actIon for damages.
Dear Mr. Hartman:
Yours recent request for an opinion of this
Department Is substantially as follows: _
“Several months ago a $40,000.00
damage suit was flied against the Commis-
sioner of Precinct.No. 1, Dewitt County,
Texas, individually, for alleged negli-
gence in failing to repair a county bridge
located in his precinct, which negligence
is alleged to have proximately caused the
death of a school boy killed while travel-
ing across said bridge. The bonding com-
pany which furnished said CommLssioner’s
bond was joined in said suit. After said
Commissioner had been duly served with
process in said suit, he employed and paid
attorneys to represent him in his indivi-
dual defense, and also, in accordance with
his contract with the bonding company, he
employed and paid an attorney to represent
the bonding company in its defense. Sub-
sequently, by amended petition, DeWItt
County, Texas was made a party defendant
in said suit, and the Commissioners’ Court
employed the attorneys representing the
said Commissioner of Precinct No. 1 indlvl- -
dually and the attorney dmployed by him to
represent the bonding company, to assist
the County Attorney in defending the suit
against Dewitt County.
.
Hon. Wayne L. Hartman - Page 2
"The said Commissioners' Court is now
desirous of refunding to the Commissioner
of Precinct No. 1, o,ut of County funds, the
sum he has paid to his attorneys and to the
attorney for the bonding company, Ln addi-
tion to paying said same attorneys a fee
for representing the County, if this can be
legally done. . .
"1. In view of the fact that Dewitt
County itself is now a party defendant in
said suit, can the Commissioners' Court of
Dewitt County legally refund to the Commis-
sioner of Precinct No. 1, out of County
funds, the sum he has paid his attorneys to
represent him individually in said suit?
"2. In view of the fact that Dewitt
County itself is now a party defendant In
said suit, can the Commissioners' Court of
Dewitt County legally refund to the ComQis-
sioner of Precinct No. 1, out of County funds,
the sum he has paid an attorney to represent
the bonding company, said payment having been
made in accordance with said Commissioner's
contract with said bonding company?"
Volume 11, Texas Jurisprudence, page 575, reads
as follows:
'The commissioners' court has power to
employ attorneys to assist the regular con-
stituted officers of the county in the prose-
cution of its claims and suits, and to pay
for such services out of the county funds.
It seems, however, that the Commissioners'
Court does not have the power to deprive the
county attorney of his rightful authority in
this regard. The employment of counsel is
restricted to special cases where the ser-
vices of an attorney are required; nor has
the court power to mske an order which will
warrant the payment of county money to an
attorney for services neither required nor
performed. Adams vs. Seagler, 250 SW 413,
Gibson vs. Davis, 236 SW 202, Terre11 v~s.
Greene, 31 SW 631, Glooms vs. Atascosa
County, 32 SW 188."
Hon. Wayne L. Rartman - Page 3
In the case of Bryan v. Liberty County, 299
S.W. 303, the Court stated as follows:
"It has long been the law in Texas
that a county is not liable In damages for
personal injuries sustained by one in con-
sequence of the tortious or negligent acts
of its agents, servants, and employees,
unless such liability be created by statute,
either In express terms or by implication.
Heigel v. Wichita County, 84 Tex. 392, 19
S.U. 562, 31 Am. St. Rep. 63; Walton V.
Travis County, 5 Tex. Civ. App. 525, 24 S.W.
352; Crause v. Harris County, 18 Tex. Civ.
App. 375, 44 S.W. 616; Riley v. Coleman
County (Tex. Civ. App.) 181 S.W. 743; Ger-
hart v. Rarrls County (Tex. Civ. App.) 244
S.W. 1103; Harris County v. Gerhart, 115
Tex. 449, 283 S.W. 139. All these author-
ities sustain the counter proposition ed-
vanced by defendant in error here that a
county Is not liable In damages for personal
injuries negligently Inflicted by the county's
agents, servants, and employees, in the ab-
sence of e statute creating such liability in
express terms or by implication."
This Department, in en opinion numbered O-4955,
dated November 17, 1942, stated the rule in this nmnner:
the Commissioners1 Court has the
power and authority to employ attorneys In
the prosecut'ionof its claims and suits and
pay for such services out of the General Fund
of the county where the county, as a whole,
Is interested and effected In such proceed-
ings. "
In your factual situation the Commissioner of
Precinct No. 1, In defense of a negligence suit, employed.
counsel in his Individual capacity to defend the same.
Subsequently, the county was joined and retained the same
counsel to assist the attorney for the State in the re:
presentation of the interests of the county. Applying the
rule that a county IS not liable for the tortious acts of
Its employees, your first question should be answered in
the negative. Despite the fact that the county is later
made a party to the lawsuit furnishes no legal basis for
the refund of money paid by a colrPnIssioner in his Indlvi-
_ . . ’
Hon. Wayne L. Hartman - Page 4
dual capacity. However, since the suit against the
county affected the county as a whole, counsel may be
employed and paid for by the county to assist the
County Attorney.
In construing the authorities, the dis-
tinction is drawn between the commissioner on the one
hand acting In his Individual capacity and,~
the Com-
missioners’ Court acting in the interest of the county
es e whole. Therefore, In view of this distinction
end the fact that a county Is not liable for the tor-
tlous acts of its employees, your second question
should also be answered In the negative.
SIJMMARY
A county connnissionerwho is sued lndivl-
dually in a negligence action msy not be re-
imbursed by the Commissioners~ Court for
attorne,y’sfees expended by him. The Court
may employ attorneys to defend a suit brought
against the county and pay for such services
out of the General Fund of the county where ,
the county, as a whole, .is Interested and
affected by such proceedings.
Yours very truly
ATTORNEY GENRRAL OF TEXAS
Burnell Waldrep
BU:djm Assistant
ATTORNEY QXVERAL
Untitled Texas Attorney General Opinion
Combined Opinion