Hon. E. G. Garvey Opinion NO. o-1728
County Auditor ,Re: Authority of commissioners'court
Baxar County to employ special counsel in a particular
San Antonio, Texas case and to amend budget to provide com-
pensation for such special counsel.
Dear Sir:
In your letter of November 22, 1939, you request
our opinion as to whether the commissioners'court may legally
employ special counsel to institute and maintain a suit
against the county tax collector for the recovery of taxes
allegedly collectedby him and not paid over to the county.
In case our answer to such,questionis an affirmativeone,
you further request our opinion as to whether the situation
is such a one as can be classified as an emergencyunder the
budget law ao as TV permit the cnmmis~ioners~ mart to amend
the budget to provideithefunds forthe:pajrlnent bf special
counsel.
While under Article 339, Revised Civil Statutes,
and as held in Lattimore vs. Tarrant County, 124 S.W.205, it
is the duty of the county attorney to represent the county in
suits of this character, it was held by the Supreme Court in
the case of Adams vs. Seagler, 112 Tex. 583, that the commis-
sioners' court may legally employ special counsel to assist
the county attorney in bringing and prosecutingthe same. Our
answer to your first question, therefore, is that the commis-
sioners' court may employ special counsel to assist your dis-
trict attorney in the prosecution of the contemplatedaction.
Since your letter indicates that your district attorney is
willing to participateto the extent that other duties will
permit, we feel that this constitutesa sufficientanswer to
your first question.
It is provided in Article 689a-11,Vernon's Civil
Statutes, "that emergency expenditures,in case of grave pub-
lic necessity,to meet unusual and unforeseen conditionswhich
could not, by reasonably diligent thought and attention,have
been included in the original budget, may from time to time be
authorized by the court as amendments to the original budget."
This statute gives.to the commissioners*court, within reason-
able limitations,the power to determinewhether a case is one
Hon. E. G. Garvey, page 2
of grave public necessity and whether the same could have
been included in the original budget by reasonably diligent
thought and attention. We can answer your second question
only by saying that the question is one of fact to be passed
upon by the commissioners court as to whether the case at
hand is one of grave public necessitywithin the meaning of
that part of the statute permitting the amendment of the
original budget in certain cases.
Yours very truly
ATTORNEY GENERAL OF TEXAS
By /s/ Glenn R. Lewis
Glenn R. Lewis, Assistant
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;TOR&! GEN&AL OF TEXAS
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