Honorable H. D. Stringer
County Attorney
Hall County
Memphis, Texas
Dear Sirt Opinion No, O-3599
Re: If the Ceunty Attorney Is direct-
ed to bring suit for the county
against an Individual for damages
done to property.belonging to
the county, la he snly allowed
the commission thereen prescrib-
ed by~~Artlale335, Vernon's
Annotated Civil Statutes, and
related questions?
Your letter of August 14, 1941, requesting an opiti-
ion of this department upon the questions stated herein has
been received.
We quote from your letter as follows:
"If the County Attorney Is ~directedto bring
suit for the county against an Individual for
damages done to property belonging to the county
is he only allowed the commission thereon pre-
scribed by Art. 335, R. 5.7 And if the suit was
settled before judgment would he still be entitled
to the remuneration provided In Art. 335,
R. S.? Also would the remuneration in such a
suit be a fee of office and accountable for as
such?"
Article 335, Vernon's Annotated Civil Statutes, reads
as follows:
‘tienever a dlstrlct or county attorney has
collected money for the State or for any county)
he shall within thirty days after receiving the
same, pay it Into the treasury of the State or
of the county in which It belongs, after deduc-
ting therefrom and retaining the commissions
Honorable H. D. Stringer, Page 2 (C-3599)
allowed him thereon by law. Such district or
county attorney shall be entitled to ten per cent
commissions on the first thousand dollars
collected by him in any one case for the State or
county from any individual or company, and five
per cent on all sums over one thousand dollars, to
be retained out of the money when collected, and
he shall also be entitled to retain the same com-
missions on all collections made for the State or
for any county. This article shall also apply to
mone3 realized for the State under the escheat
law.
Paragraph 3 of Article 6716, Vernon's Annotated Civil
Statutes, provides:
“3. The owners, operators, drivers or movers
of any vehicle, object or contrivance over a pub-
lic highway or bridge shall be jointly and
severally responsible for all damages which said
highway or bridge may sustain as the result of
negligent driving, operating or moving of such
vehicle, or as a result of operating same at a
time forbidden by said road officials. The amount
of such damages may be recovered In any action at
law by the county judge for the use of the county,
and such recovery shall go to the benefit of the
damaged road, The count% attorney shall represent
the county in such suit.
You do not state in your letter whether or not the case
in which you may be directed to represent the county is a case as
mentioned in Article 6716, supra. However, in the absence of su'.h
statement, for the purposes of this opinion, we assume that the
case is not to be brought under this statute.
Article 334, Vernon's Annotated Civil Statutes, provides
that district and county attorneys shall advise and give opinions
to the various county and precinct officers, but this does mt
mean that the Commissioners) Court is required to employ the
County Attorney in all civil suits, nor does it mean that the
County Attorney has the right to represent the county in all such
suits 0
In the case of Loosoon v. Harris County, 38 Tex. 511,
the Supreme Court held that the Commissioners' Court of the county
has the exclusive right to determine whether a suit should be
brought in the name and for the benefit of the county, except in
the case where a concurrent or exclusive right is conferred on
Honorable H. D. Stringer, Page 3 (O-3599)
some other official or tribunal by the Legislature to exercise in
some specified c&se a like discretion.
In the case of Brady v. Brooks, 89 S. W. 1052, the
Supreme Court stated that:
“The principal purpose of the Constitution In
creating the offices of district attorney and
cqunty attorney was to make it the main functions
of these officers, the prosecution of criminal
cases.”
However, the Legislature has from time to time conferred
additional duties upon these officers. As further evidence that
the duties and rights of the County Attorney prescribed by the
Constitution were not restricted, we refer to the subsequent acts
of the Legislature conferring additional duties upon these offi-
cers, such as, Article 6716, supra, and Article.,339, Vernon’s
Annotated Civil Statutes, which require the District or County
Attorney to Institute such proceedings as are necessary to compel
the performance of certain duties by certain officers and to pre-
serve and protect the public interest as set forth In said
statute.
The Commlsslonerst Court has the authority to employ
counsel to the exclusion of the County Attorney to institute
suits in behalf of the county, except actions against office
holders, as provided by Article 339, supra. This was held hereto-
fore by this department In conference oplnlon No. 2673. This
opinion held that the CommissionersI Court has the authority to
employ counsel to the exclusion of the County Attorney to bring
suit against the Banking Commission for the recovery of county
funds under the guaranty bank fund law on account of the banks
(county depository) failure, and the County Attorney Is not
entitled to any commission on collections made as a result of
said suit, except as may be provided by contract between the
County Attorney and the Commlssionersf Court.
The case of City National Bank v. Presidio County, 26
S. W. 777, holds that it Is not the legal duty of the County
Attorney to represent the county in suits affecting its interest.
The case of Jones v. Veltman, 171 S. W. 291, holds that the
Commissioners’ Court has the authority to employ the County
Attorney to represent the county in pending suits.
After a careful search of the statutes, we fail to find
any statute imposing the duty upon the County Attorney to
Honorable H. D. Stringer, Page 4 (O-3599)
represent the county in any suit to recover damages done to
property belonging to the county except as above stated. This
being true, there is no duty imposed upon.the County Attorney to
bring the above mentioned suit. However, under the above
mentioned authorities, the Commissioners' Court has the legal
authority to contract with the County Attorney to bring the suit
for the county and to pay him a reasonable compensation for his
services in such suit as may be determined by the CommisslonersD
Court and the County Attorney. We do not think that Article 335,
supra, has any application to the question under consideration,,
but that said statute applies only in those instances where the
duty or duties are imposed upon the County Attorney by law to
perform such duties and in such cases, Article 335, supra, provides
compensation for such services.
Therefore, it is the opinion of this department that
Article 335, supra, has no application to the question under
consideration, and that the Commissioners'Court can legally
contract with the County Attorney to bring the above mentioned
suit and pay the said County Attorney a reasonable compensation
for such services a8 may be agreed upon between the Commissioners'
Court and the County Attorney. Our opinion No. O-45 supports the
conclusion stated herein, and we enclose a copy of the same for
your information.
Trusting that the foregoing fully answers your inquiry,
we are
Yours very truly
ATTORNEY GENERAL OF TEXAS
BY /s/ Ardell Williams
Ardell Williams
Assistant
AW:QO
ENCLOSURE
APPROVED AU0 21, 1941 APPROVED
Opinion
/s/ C+eraldC. Plann Committee
ATTORNEY GENERAL OF TEXAS
Untitled Texas Attorney General Opinion
Combined Opinion