Honorable Murphy Cole
County Auditor
Liberty County
Liberty, Texas
Dear Sir: Opinion No. 0-27'79
Re: Non-liability of county under
facts stated.
Your request for opinion has been received and carefully considered by
this department. We quote from your request as follows:
"A few weeks ago e truck was wrecked in Liberty County and
a claim has been made against the county for damages.
"The following facts prevail in the case:
"The Commissioner of Precinct No. 4 appointed orxa
of his workmen on a certain morning to take a crew
of men and to go to a certain bridge to make repairs.
The Commissioner instructed his man in charge of
the crew to go to the Precinct barn and there to
get a truck in which to haul the crew to the broken
bridge.
"Upon arriving at the precinct barn the foreman
found that the barn was locked; and he than
asked one of the workers in his crew if he would
take his own personal pick-up truck and haul the
crew to the jobsite. The employee agreed that
he would use his personal truck, and on the way
to the broken bridge, a cm overtook the truck as
the truck was about to turn off the main road,
and there being no brakes on the car it bumped
into the rear end of the pick-up truck and turned
it over. The owner of the pick-up truck declares
that he gave a si@al that he was about to turn.
"Now the owner of the pick-up, an employee of the
county, after having his car wrecked has filed a
claim with the county for damages incurred in
having his truck repaired--he having been asked
by the foreman to use his truck In transporting
the bridge crew to the job.
-~-
Honorable Murphy Cole, Page #2 (C-2779)
"Will you please advise whether the foremen had
been given power as agent to contract for the use
of the truck which was wrecked; and whether the
county is liable for damages incurred as the
result of the wreck of said truck."
We quote from 11Texss Jurisprudence, pages 563r 564, 565, 632, 633, 634,
635 and 636, .isfollows:
"Counties, being component parts of the State,
have no powers or duties except those which are
clearly set forth and defined in the constitution
and statutes. The statutes have clearly defined
the powers, presecribed the duties, and imposed
the liabilities of the commissioners' courts, the
medium through which the different counties act,
and from those statutes must come all the
authority vested in the counties. . ."
,t. . . Commissioners' courts are courts of limited
jurisdiction in that their authority extends only
to matters pertaining to the general welfare of
their respective counties and that their powers
are only those expressly or impliedly conferred
upon them by law, - that is, by the constitution
and statutes of the State . . ."
"The authority of the commissioners court as the (I
governing body of a county to make contracts in
its behalf is strictly limited to that conferred
either expressly or by fair or necessary implication
by the constitution and laws of the state. 1 o ."
"A contract or agreement made by a county is valid
and binding only if made under the authority of
a resolution or order duly passed at a meeting of
the commissioners' court and entered upon the
minutes of such meeting. If, in a suit involving
an alleged contract, the petition fails to aver
that an order was passed by the commissioners'
court embodying the terms of the contract, the
pleading is subject to a general demurrer. No
rights can be scquired as against the county by
agreements with the individuals composing the
commissioners' court. The members of the court
are not agents with general authority to bind the
public; they are public officials who have been
granted certain powers which must be exercised in
the way prescribed by the statute.
.--
Honorable Murphy Cole, Page #3 (O-2779)
"The burden of proving, that an order was passed
by the commissioners' court rests upon a plaintiff
claiming rights thereunder.
"If the minutes fail to state the true aQ;reement
the proper method of amending the minutes is by a
motion made in the commissioners' court and not by
allegation and proof in another tribunal in which
a litigation concerning the order may have arisen."
The commissioners' court, in entering into a contract
on behalf of the county, may act through an agent
appointed by it; and the contract thus made by a
duly appointed agent is binding upon the county.
In a suit involving the aontract it is necessary
to show that the sgreement is one which the agent
was authorized to make, or that the county, with
knowledge of the terms of the agreement, ratified
it after it was made.
"Authority to bind the county by contract must come
from the commissioners' court acting as a body; it
is not sufficient that the individual commissioners
may have refrained from objecting to the assumption
of such authority by the alleged agent. It.is not
necessary, however, that authority be shown by an
order actually entered on the minutes; the fact that
an order was made may be shown by parol.
"County officers, by virtue of their office, are
not agents empowered to contract on behalf of the
county; and when they assume to do so, no recovery
can be had against the county upon the contract or
for the value of the goods in the absence of
ratification by the commissioners' court."
Under the facts stated above we are unable to perceive any theory
upon which the county could be held liable for the wreck above described.
You are therefore respectfully advised that it is the opinion of this
department that the county is not liable under the facts stated.
Yours very truly
APPROVED OCT. 26, 1940 ATPORNEY GENERAL OF TEXAS
s/ Gerald C. Mann
ATTORNEY GENERAL OF TEXAS s/ Wm. J. Fanning
APPROVED OPINION COMMITTEE
BY B. W. B. BY
CHAIRMAN Wm. J. Fanning
Assistant
WJF:GO/ldw
Untitled Texas Attorney General Opinion
Combined Opinion