ORDER NO 28557
APPROVAL TO RECONFIRM
WHAT AUTHORITY THEY HAVE
OVER THE PENDING HEALTH INSURANCE CLAIMS
O n this the 8th day of March 2004, upon motion made by Commissioner Letz, seconded
by Commissioner Williams, the Court unanimously approved by a vote of 4-0-0, that
the pending health insurance claim is under the authority of the Commissioners Court
only as to that one, but otherwise it constitutes a judgment or opinion of the Court with
respect to that particular civil matter.
~~'~~-~~
COMMISSIONERS' COURT AGENDA REQUEST
PLEASE FURNISH ONE ORIGINAL AND NINE COPIES OF THIS REQUEST AND DOCUMENTS TO BE
REVIEWED BY THE COURT.
MADE BY: Jonathan Let OFFICE: Commissioners' Court
MEETING DATE: March , 2004 TIME PREFERRED:
SUBJECT: (PLEASE BE SPECIFIC)
Consider and discuss if the County Attorney or Commissioners Court has authority over the
pending health insurance claim as a civil matter.
EXECUTIVE SESSION REQUESTED: (PLEASE STATE REASON)
NAME OF PERSON ADDRESSING THE COURT
ESTIMATED LENGTH OF PRESENTATION:
IF PERSONNEL MATTER -NAME OF EMPLOYEE:
Comm. Pct. #3
Time for submitting this request for Court to assure that the matter is posted in accordance with Title 5, Chapter
551 and 552, Government Code, is as follows:
Meeting scheduled for Mondays:
THIS REQUEST RECEIVED BY:
THIS REQUEST RECEIVED ON:
5:00 P.M. previous Tuesday.

All Agenda Requests will be screened by the County Judge's Office to determine if adequate information has been
prepared for the Court's formal consideration and action at time of Court Meetings. Your cooperation will be
appreciated and contribute towards you request being addressed at the earliest opportunity. See Agenda Request Rules
Adopted by Commissioners' Court.
Agenda Back-up
Consider and discuss if the County Attorney or the Commissioner's Court has authority
over the pending health insurance claim as a civil matter.
At the February 23, 2004 Commissioner's Court meeting the County Attorney stated that
he had authority over this matter (see copies attached of the court transcript pages 155 to
158). As I stated at that meeting this was contrary to what I thought authority was. After
additional research I believe that my interpretation is correct.
This matter affects the operation of county government in Kerr County and has
implications far beyond the issue at hand. I believe this needs to be resolved. I have
attached the information that my research has developed.
Attorney General Opinion C-256
Attorney General Opinion GA-153
Excerpts form Brooks' treatise county and special district law
Jonathan Letz
155
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I think that I am the manager for the legal affairs of the
county; that the attorney, whoever that attorney is, will
communicate through me, and I have no problem making reports
to the Court and updating the Court on the issues. I think
it's an important issue. I don't mind obeying the Court,
but, again, I do think we may want to well consider certain
strategic items and take this up in executive session.
COMMISSIONER LETZ: So your position is that
the county -- being the elected County Attorney gives you
authority over all civil matters of the Commissioners Court?
MR. MOTLEY: I think that the state -- the
Constitution of the State of Texas says the County Attorney
shall be elected by the qualified voters of each county and
shall represent the state in all cases in the district and
inferior courts in their respective counties. All cases.
That's what it says in the Constitution.
COMMISSIONER LETZ: So, why did you come to
us to get permission to hire this person?
MR. MOTLEY: Because T can't spend money.
You're the guys -- only guys that can spend money.
COMMISSIONER LETZ: I'm very confused. Up
until this point, I've always been told -- or under the
impression that there was a distinction between civil work
and criminal work. And that's the reason -- and we made it
back when the authorization was given to the County
~y
2-23-04
156
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Attorney's office to hire another attorney, and to do that,
we gave all the civil work back to the County Attorney that
we used to have a -- most recently, Tom Pollard was our
legal counsel for civil matters. Tom Pollard handled all of
the issues related to the jail construction and the -- or
where we got the lawsuit -- I guess lawsuits that resulted
from that. Potential lawsuits. Why didn't you do that for
us at that time?
MR. MOTLEY: You had chosen to hire Tom
Pollard.
COMMISSIONER LETZ: You're telling me we
didn't have that choice. You're telling me that you are the
only one that can make that decision.
MR. MOTLEY: No, the relationship I have with
Commissioners Court is not a -- it's not a mandatory
relationship. It's a voluntary relationship. I do the work
for the Commissioners Court. I charge no money for it, and
do it to the best of my abilities, and that's the
relationship we have.
COMMISSIONER LETZ: So, you can pick and
choose what cases you want to work on for the Court?
MR. MOTLEY: I didn't say that. I didn't say
that at all.
COMMISSIONER LETZ: Well, I don't understand
how we didn't ever have authority to use the -- your office
2-23-04
157
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for our civil work, then.
MR. MOTLEY: What? I didn't understand you.
I didn't understand you.
COMMISSIONER LETZ: I don't understand how it
was ever permitted -- or how you ever permitted, I guess,
since you're County Attorney, the Commissioners Court to
hire outside counsel.
MR. MOTLEY: Because when one of my attorneys
left in December of '95, the Commissioners Court said we're
not going to allow the funds to hire another attorney, so I
had nobody to do this work. I had to use the people we had
left to do mental health, juvenile, criminal prosecution,
and J.P. prosecution, so we didn't have staff to do it at
that point. You cut us an attorney in December of '95. I
remember very well.
COMMISSIONER LETZ: I remember.
MR. MOTLEY: That's when Mr. Pollard's
employment began, and began based on it was going to cost
the County a lot less money and free up time for me to do
other things, because we were just too busy doing things.
It was going to free up time and let us have other time, but
it was going to cost the County less money because they
didn't have to pay benefits and such as that. That was the
rationale given for it.
COMMISSIONER LETZ: So, you're doing -- your
2-23-04
158
1 feeling is that all the work you've done on this is as a --
2 the County Attorney, not as an attorney working for the
3 Court?
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MR. MOTLEY: You know, I'm really having
quite a bit of difficulty distinguishing what you mean
between those two terms.
COMMISSIONER LETZ: Well --
MR. MOTLEY: I think I'm the County Attorney.
I'm the attorney for the county. I'm attorney for -- for
the men here on the Court, I'm attorney for the people of
the county, I'm attorney for the best interests of the
people of the county. I think it's in the best interests of
the people of the county that we do what we have done and
retain counsel on this case, take a look at it. That's all
I said I wanted to do, was take a look at it. That's it.
COMMISSIONER LETZ: I know, and I -- and
during that process -- I mean, I don't want to rehash last
meeting, but I asked for information and you refused to give
to it me because I wasn't entitled to it.
MR. MOTLEY: Well, you know, the information
I believe you were asking about was, like, have you talked
to A? Have you talked to B? Did you consider that? Did
you do this? Do you do -- you were kind of like, you know,
sort of like micromanaging my decision of what I was telling
you that I thought we needed ultimately to do, and that was
2-23-04
~1 Li V~~~
A[;' i~t, T~arwet
A'f"iY)LL17':1 ~_«:,,~.... May B, 196
Miss Edna Cisneros Opiaion No. 0-256
County and District Attorney
Willacy County Courthouse Re: whether the Comaa.ssioaers'
Raymondville, Texas Court of Willacy County
has the authority. to com-
pensate a special prose-
Dear Miss Cisneros: cutor far services rendered.
we acknowledge your request for an opinion on the above
captioned question. Your letter indicates that in iiillaey County
you perform the duties of both County and District Attorney and
have no assistants. The present problem arises in that an the sec-
ond trial of a murder cases yon required legal assistance in the
case because of its seriousness and the various other duties of your
office. The special prosecutor assisted.yau in the first tr__ial on
a change of venue in the county of the special prosecutor's resi-
d~nce. The question now posed is whether or not the Commissioners'
Court of Willacy County may compensate him for his services ren-
dered to the county.
The Commissioners' Court has no power to employ an out-
side attorney to perform the regular duties of a County Attorney
or to pay an outside attorney a regular salar for ppeerforming such
duties . Attorney General's Opinioas 11'o s . 0-7~7~+ (19~t6) ; v -13?7
(1950 .
The employment of an outside attorney to s s the
County and District attorney, hovever~ has been specifically ap=
proved. He is usually employed for specific purposes aS was the
special prosecutor in Willacy County and is to be pa'~d from the
General Fund of the. county. 15 Tex.~ur.2nd 38b, ~o~nt~es, 8169.
In ilillis y. state, 90 S.W. 1100 49 Tea.Crim. 139 (1905),
the Court of Criminal appeals approved the employment of private
counsel to participate in a case in which he was familiar with the
facts.
In s v Se ~ 112 Te=. 583, 250 S.tii. 413 (1923)
the contention was advanced hat the Commissioners' Court was with-
out authority to employ private caunsel~ alleging that it xas the
County or District Attorney's duty to prosecute suits in behalf of
the county. The Supreme Court stated at page x+13 as follower
-1230-
Miss Edna Cisneros, page 2 {C-256}
"It is made to appear in the statement of
the case by the Court. of Civil ![ppesls and
otherwise in the record, that the commissioners'
court employed said attorneys to assist the
county attorney in bringing and prosecuting the
suits, and that the cotuity attorney joined in
the suits t'iZed. We think there can be no doubt
that the commissioners' court, under its author-
~ity to control and manage the finances and busi-
ness affairs of the county, has power and au-
thority to employ attorneys to assist the regu-
larly constituted officers of the county in the
prosecution of its claims and suits. Terrell
v. Greene, 88 Tex. 539 31 S.W. 631. It would
necessarily follow tha~ it would be authorized
to pay for such services out of the county funds.
Since the special prosecutor in i~T111acy County assisted
you as the regular County and District Attorney, xe advise you
that the Commissioners' Court has the authority to compensate the
special prosecutor for his services from the General Fund of the
county.
SIIrQ~S~IRY
The Commissioners' Court of {~Tillacy County
has the authority to compensate a special'prose-
cutor hired to assist the County Attorney such
compensation to be paid from the General of
the county.
Yours very truly,
~fAGGONSR CARR
Attorney General
By
red D. hard
FI~W sub Assistant
IlPPROYBD s
OPINION COI~IITT88
W. O. Leppert Chairman
Milton Richardson
Paul Phy
Charles Black
1[PPROYED FOR TAS ATTORNEY GENERAL
BYs Stanton Stone
-123i-
ATTORNEY GENERAL OF TEXAS
GREG ABBOTT
February 19, 2004
The Honorable Myles K. Porter Opinion No. GA-0153
Fannin County Attorney
Fannin County Courthouse Re: Whether the Fannin County Commissioners
101 East Sam Rayburn Drive, Suite 301 Court may retain counsel to advise it on legal
Bonham, Texas 75418 matters without the consent of the county attorney
(RQ-0106-GA)
Dear Mr. Porter.
You ask whether the commissioners court may retain private counsel, paying him a salary
and benefits, without the county attorney's consent.' If it may, you ask whether the private counsel's
salary and benefits may be paid from the county's road and bridge fund. See Porter Brief, supra note
1, at 2?
I. Factual Background
You state that the Fannin County Commissioners Court has retained the services of a private
attorney to advise it on general legal matters without the express consent of the elected county
attomey. See id. at 1. The county has paid the private counsel on a salary basis, including benefits,
from the general fund. See id. You have informed the commissioners court that you do not approve
of its retention of private counsel and that you are ready to provide whatever legal advice and
services the court may require. See id. at 1-2. The court has indicated that "in light of the county's
current budgetary situation," the court intends to retain its private counsel and to pay his salary and
benefits from the county's road and bridge fund_ Id. at 2.
'See Letter and Brief from Honorable Myles K. Porter, Fannin County Attorney, to Honorable Greg Abbott,
Texas Attorney General, at 2 (Sept. 15, 2003) (on file with Opinion Committee) {hereinafter Porter Brief].
2You have supplemented your request with questions about paying private counsel from road and bridge money
raised fromproperty taxes, fees collected by the tax assessor-collector, grants, fines, and other specific sources. See Brief
from Honorable Myles K. Porter, Fannin County Attorney, to Honorable Greg Abbott, Texas Attorney General (Oct.
29, 2003) (on file with Opinion Committee) [hereinafter Supplemental Brief].
The Honorable Myles K. Porter -Page 2 (GA-0153)
II. Anthor#ty of County Atto
The Texas Constitution provides that a county attorney shall be elected in counties that do
not have a resident criminal district attorney.' See TEx. ColvsT. art. V, § 21. The legislature may
create the office of district attorney and criminal district attorney. See id. "County Attorneys shall
represent the State in all cases in the District and inferior courts in their respective counties," but if
a county is included in a district with a district attorney, the legislature shall regulate the respective
duties of district and county attorneys. Id. Because the legislature has not created the office of
district attorney in Fannin County, see Porter Brief, supra note 1, at 1, the Fannin County Attorney
performs the duties of a district attorney. See TEx. Gov'T CODE ANN. § 46.002(3) (Vernon Supp.
2004).
District and county attorneys are charged primarily with enforcing criminal statutes. See
TEX. CONST. art. V, § 21; Brady v. Brooks, 89 S.W. 1052, 1056 (Tex. 1905). The legislature has
granted county attorneys certain other powers and duties. A district or county attorney is required
"on request ... [to] give to a county or precinct official of his district or county a written opinion or
written advice relating to the official duties of that official." TEx. Gov'T CODE ANN. § 41.007
(Vernon 1988). See also id. § 41.009 (county attorney authorized to sue county officer entrusted
with public funds to compel performance of duties). The legislature has also charged county
attorneys with civilly enforcing certain regulatory statutes. See, e.g., TEX. AGRIC. CODE ANN.
§ 161.133 (Vernon 1982) (county attorney shall file and prosecute civil suit against corporation
violating provisions on control of animal diseases); TEx. Gov'T CODE ANN. § 552.3215(c) (Vernon
Supp. 2004) (county attorney's authority as to civil enforcement of Public Information Act).
It is usually not the county attorney's statutory duty "`to represent the county in its general
legal business"' or in conducting "`ordinary civil actions."' See Guynes a Galveston County, 861
S.W.2d 861, 864 (Tex. 1993) (quoting Hill Farm, Inc., v. Hill County, 425 S.W.2d 414, 419 (Tex.
Civ. App.-Waco 1968), aff'd on othergrounds, 436 S.W.2d 320 (Tex. 1969)); Tex. Att'y Gen. LO-
97-011, at 2. The legislature has, however, promulgated special statutes regulating the duties of
county attorneys in specific counties, in some cases expressly requiring a county attorney to represent
the county in civil actions. See TEx. Gov'T CODE ANN. §§ 45.171 (Vernon Supp. 2004) (County
Attorney of El Paso County), .179 (County Attorney of Fort Bend County), .261 (County Attorney
of Matagorda County), .201 (Vernon 1988) (County Attorney of Hams County); see also Driscoll
v. Harris County Commis Ct., 688 S.W.2d 569, 572-74 (Tex. App.-Houston [ 14th Dist.] 1984, writ
ref d n.r.e.) (construing predecessor of Government Code section 45.201; noting that certain
populous counties had, either with or without special legislation, provided for representation of the
county in civil matters by the county attorney, district attorney, or criminal district attorney). No
such special statute addresses the Fannin County Attorney's duties. See TEx. Gov'T CODE ANN. ch.
45 (Vernon 1988 &Supp. 2004) (section 45.174 reserved for Fannin County).
'A criminal district attorney is the district attorney in countics a+ithout a county attorney. See TEx. CONST. art.
V, § 21; Hill County v. Sheppard, 178 S.W.2d 261, 263 (Tex. 1944).
The Honorable Myles K. Porter -Page 3 (GA-0153)
III. Authority of Commissioners Court to Retain Private Attorneys
The commissioners court, pursuant to its implied power to accomplish its constitutional and
statutory directives, may contract with experts when necessary, including attorneys. See Guynes, 861
S.W.2d at 863 (commissioners court established legal department to conduct county's civil legal
affairs); Pritchard & Abbott v. McKenna, 350 S.W.2d 333, 334 (Tex. 1961) (employment of expert
to appraise all properties in county); McClintock & Robertson v. Cottle Co., 127 S.W.2d 319, 321
{Tex. Civ. App.-Amarillo 1939, writ dism'd judgm't cor.) (county may retain private law firm to
determine its amount of bonded indebtedness). The courts have upheld the power of a
commissioners court to hire counsel to assist it or other officials in carrying out its responsibilities,
so long as the statutory duties of other county officials are not usurped. See Guynes, 861 S.W.2d
at 863.
Driscoll considered whether the commissioners court could employ legal counsel other than
the Harris County Attorney to perform legal services for the boazd of the county toll road authority.
Driscoll, 688 S. W.2d at 569. The court addressed the predecessor of a statute that requires the Hams
County Attorney "to represent the state, Harris County, and the officials of Hams County in all civil
matters pending before the courts of Harris County." TEx. Gov'T CODE Aivty. § 45.201 (Vernon
1988). It noted that this provision imposed "specific duties upon the county attorney of Harris
County which are not imposed upon county attorneys, criminal district attorneys or district attorneys
generally." Driscoll, 688 S. W.2d at 579 (on motion for rehearing). Hams County was also subject
to the predecessor of a statute providing that in counties with a population of more than one million,
the commissioners court may employ an attorney as special counsel to be selected by the county
attorney. See TEX. LoC. GoV'T CODE At~rrt. § 89.001 (Vernon 2004); see Driscoll, 688 S.W.2d at
579-80 (discussing predecessor ofLocal Government Code secrion 89.001, which applied to counties
of more than 500,000 population). The court determined that the commissioners court had usurped
the county attorney's powers under these statutes by employing legal counsel other than the Hams
County Attorney to perform legal services for the county toll road authority. See Driscoll, 688
S.W.2d at 575-76, 582-83. See also Terrell v. Greene, 31 S.W. 631, 633 (Tex. 1895) (where county
attorney had statutory right and duty to sue county treasurer on his bond, commissioners court had
no authority to displace him by employing private counsel to handle suit).
In Maud v. Terrell, 200 S.W. 375, 376 (Tex. 1918), the court addressed the constitutionality
of a statute authorizing the comptroller to employ persons to bring tax collection suits in district and
inferior courts to collect inheritance taxes. See Maud, 200 S.W. at 375-76. It found the statute
consistent with Texas Constitution article V, section 21, by construing it as allowing other persons
to assist the county attorney in subordination to his authority. See id. at 378; see also Seagler v.
Adams, 238 S.W. 707, 708 (Tex. Civ. App.-Galveston 1922), a„~"d, 250 S.W. 413 {Tex. 1923)
(commissioners court may contract with attorneys to assist county or district attorney to bring suits
to collect debts against officials and others).
In Guynes, the supreme court for the first time considered whether a commissioners court
may employ a permanent legal staff to advise it in its various civil affairs. See Guynes, 861 S.W.2d
at 861-62. The court determined that the Galveston County Commissioners Court, under the unique
The Honorable Myles K. Porter =Page 4 (GA-0153)
facts presented in Guynes, could "legally employ staffattomeys to advise and represent it concerning
civil matters." See id. at 862. The court addressed Government Code section 44.184, which
provided that the Galveston County Criminal District Attorney "shall exclusively represent the state
in all criminal matters before" the district courts and inferior courts in Galveston County and "shall
represent Galveston County in any court in which the county has pending business." TEx. Gov'T
CODE A1viv. § 44.184(a) (Vernon 1988). Reading this provision in connection with the
commissioners court's long-standing authority to seek legal assistance, the court found that the
statute imposed on the Galveston County Criminal District Attorney an exclusive duty to represent
the state in criminal matters, but no corresponding exclusive duty to represent the county in civil
matters. See id. at 864. It noted that "the summary judgment record presents no evidence" that the
commissioners court had delegated the criminal district attorney's duties. Id. Moreover, the
criminal district attorney "clearly and unequivocally consented to the present arrangement for
handling the county's civil legal affairs."` Id. "[B]ecause the Commissioners Court has not usurped
or interfered with the duties of the Criminal District Attorney, because it may employ counsel to
advise it concerning the affairs of the county, and because the Criminal District Attorney consented
to the arrangement,"the commissioners court could fund and use its legal department in conducting
its civil legal affairs. Id. The Guynes court expressly reserved the question of the "limitations [that]
might be imposed on the present arrangement should the Criminal District Attorney withdraw his
consent." Id.
Attorney General Opinion GA-0074, in concluding that the El Paso County Bail Bond Board
could not hire outside legal counsel, distinguished the facts and law in the question before it from
those in Guynes. See Tex. Att'y Gen. Op. No. GA-0074 (2003) at 3. The legislature had vested the
county attorney for El Paso County with "the primary duty ... to represent the state, El Paso County,
and the officials of El Paso County in all civil matters pending before the courts of El Paso County
and any other courts in which the state, the county, or the officials of the county have matters
pending." TEx. Gov'T CODE Axrr. § 45.171 (Vernon Supp. 2004). The El Paso County Attorney
moreover explicitly refused to consent to the employment of outside counsel. See Tex. Att'y Gen.
Op. No. GA-0074 (2003) at 3.
IV. Authority of Fannin Coanty Commissioners Coart to Employ Private Counsel
You suggest that Attorney General Opinion 0-7474 (1946) resolves your question. See
Porter Brief, supra note 1, at 3. Attorney General Opinion 0-7474 stated that the judicial decisions
on a commissioners court's authority to employ private attorneys "have contemplated employment
and remuneration of counsel by the Commissioners' Courts only for a specific litigation, or advice
on a particular matter or problem." Tex. Att'y Gen. Op. No. 0-7474 (1946) at 2. It concluded "that
the law does not intend that the Commissioners' Court shall employ counsel on a salary basis to
advise and represent it in whatever matters might arise." Id. However, the court in Guynes held that
the commissioners court was authorized to employ a permanent legal staff to conduct its civil legal
affairs. See Guynes, 861 S.W.2d at 864. Guynes effectively overruled the reasoning and conclusion
'The criminal district attorney's consent to the arrangement suggests that he found that the county legal office
was providing assistance to him and not usurping his statutory duties. See Cuynes, 861 S.W.2d at 864.
The Honorable Myles K. Porter -Page 5 (GA-0153)
of Attorney General Opinion 0-7474. The answer to your question is controlled by Guynes. See
Tex. Att'y Gen. Op. No. GA-0074 {2003) at 3 (distinguishing Guynes to conclude that the El Paso
County Bail Bond Board may not seek outside legal counsel without the consent of the county
attorney).
A commissioners court may employ a private attorney to provide legal services as long as
it does not encroach on the constitutional or statutory authority vested in the county attorney. See
Guynes, 861 S.W.2d at 863. The constitution requires a county attorney to "represent the State in
all cases in the District and inferior courts in their respective counties," but does not impose civil
duties on county attorneys. TEX. CONST. art. V, § 21. The Fannin County Attorney does not have
a general statutory duty to represent the chanty and its officers in civil actions. The Fannin County
Commissioners Court will not usurp the county attorney's authority if it employs a private attorney
to provide legal services that neither the constitution nor a statute vests in the county attorney. Under
these circumstances, the commissioners court may retain private counsel as a salaried employee,
without the county attorney's consent.
A private attorney employed bythe Fannin County Commissioners Court may also give legal
advice to the commissioners court, without usurping the county attorney's power to give legal
opinions to the court. Government Code section 41.007 provides that
[a] district or county attorney, on request, shall give to a county or precinct
official of his district or county a written opinion or written advice relating to the
official duties of that official.
TEx. Gov'T CODE ANN. § 41.007 (Vernon 1988) (emphasis added). The court in Gibson v. Davis,
236 S.W. 202 (Tex. Civ. App.-Galveston 1921, no writ), addressed the commissioners court's
authority to employ private attorneys to advise it about the preparation of road bonds and render
opinions about the legality of the bonds. See Gibson, 236 S. W. at 212. It stated that the predecessor
of Government Code section 41.007
was intended to impose a duty upon the county and district attorneys,
and not as a restriction upon the commissioners' court in the
employment of attorneys to advise and render services to the court in
important matters coming before it for its consideration.
Id. Thus, section 41.007 does not bar the commissioners court from employing private attorneys to
advise it. The Fannin County Commissioners Court may employ a private attorney as a salaried or
hourly employee to provide it with legal advice.
V. Payment of Private Counsel from Road and BridEe )Ends
You ask whether private counsel retained by the commissioners court on either a salary or
hourly basis may be paid from road and bridge funds raised from (1) property taxes, {2) fees
collected by the tax assessor-collector under Transportation Code chapter 508, (3) fuel taxes
The Honorable Myles K. Porter -Page 9 (GA-0153}
S U M M A R Y
Provided that it does not delegate duties constitutionally or
statutorily vested in the county attorney's office, the Fannin County
Commissioners Court may employ legal counsel to advise and
represent it in civil matters, without securing the county attomey's
consent. County funds dedicated by the constitution, a statute, or the
terms of a grant to road construction and maintenance may not be
allocated to other purposes.
Very truly yours,
G EG BBOTT
Attorne eral of Texas
BARRY R. MCBEE
First Assistant Attorney General
DON R. WILLETT
Deputy Attorney General for Legal Counsel
NANCY S. FULLER
Chair, Opinion Committee
Susan L. Garrison
Assistant Attorney General, Opinion Committee
FEB 26 200 0914 FR ATTORNEY GENERAL 512 475 X421 TO q_O3O7922218 P.'O1~O7
Pt, 4
ire an agency that
er in court retains
holding that the
ration of a county
en initiated by the
curt held that the
apresented by the
Mate 9Od01i>.y laws,
ne for the purpose
', scant discussion
with the attorney
to report to the
state laad.a Until
district attorneys
~y the comptroller
is to the attorney
Sys report to the
quested by hiin.°
g misconduct by
tssistant attorney
iosecute for tke
provisions o£ the
sat DAs, and the
' for the appoint-
unal appeals had
serve as assistant
'ere not incompa-
'esponse to these
Laws of Teyces 1512
sing the duties of the
': requu',ng attorney
"oerti.t"ied accounts"
to district attorneys
tit"),
rnent Coda $ 41.006.
l06 S.W,2d 708 (Tex.
Wit.) 1885, pet. rGrd)
t Cody §§ 41.102;
is Ann. C.C.P. art.
Hill v, Pirtle, 887
App.1994) (writ of
?istrict court order
by assistant Acs),
actions pending in court. In any event,
co~arty cad district $ttoruoys are required
to submit written briefs with their opinion
requests.
13. Id„ § 41.002 (notiftmtion to stela
comptroller also required).
14. Id., § 402.024(x).
§ 21.14
i. Speeches by J. C. Darts, J'r.
(1957-19$2.), CarLniy Gouern-neRt, LpW En-
forcement Conference (May 7, 1957), p. 5
(available nt Legl8lative Reference Library,
Austin),
2ss
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Ch. 21 PRO~ECU'I'ORB AND PUBLiC AT'fORN"EYS ~ 2.14
challenges of state assistant attorney generals also serving as local
assistant prosecutors, the legislature enacted provisions expressly per-
mitting the practice.ii
Any county or district attorney may, by written request, seek an
opinion from the attorney general on at~y matter concerning the official
duties of his office.1z
All prosecutors are required to notify the attorney general of their
address upon taking office,13
Legislation enacted in 1987 entitles any district attorney to legal
representation by the attorney general in federal suits by state prison
inmates. to
Ubrary References;
C-J.3. District and Prosecuting Attorneys $ 2226, 28.
West's Key No. Digests, District and Prosee+,tling Attorneys v~7(1),
~ 21.14 Civil Duties in General
County and district attorneys do not represent the county or stat~'in
civil matters unless required or authorized to do so by statute. In the
words of a speaker in the 195ps:
CI)t ie not your duty to examine abstracts, to prepare deeds, to write
contracts for the County; injunction suits do not have to be brought
by you and suits to recover damagos done to county property do not
fall within your official functions. Even the removal of a tenant from
the County Poor Farm, collecting bills incurred for soil conservation
work and hospital bills due the county are not among your duties
and responsibilities.'
If not required to provide such representation they would neverthe-
less be eligible to be employed at a privately negotiated compensation to
render legal services they aze not required to provide by law. Any special
statute that may be applicable to a certain office must be consulted to
Il. Vernon's Ann. C.C.P. art 2.07 (da-
15hing "attorney for the state" sad "comps-
tent attorney" to iaClude @li assistant attar,
nay general); V.T.C.A., Goverment Code
§ 402.028 (authority of attorney general to
provide eseistance in ''sll manner of crimi-
nal cases" upon request;} § 42.102 (author-
ity of prosecutor t4 requoat assistance froth
AG); § 074.004 (inapplicability of statutory
provision related to constitutiors] dual o[
ficeholding prohibition).
12. V.T.C.A,, Gvverameat C9dt:
§ 402.049. Al(;hough the practice is other-
wise, the authority to request an opinion
aPP~'s hY the statute to be limited to

~~~,
~~.
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aS" _..

`~ X.14 AD',1~rTISTR4TI01~ OF .NS'1`ICE Pt. 4
determine he Civil responsibilities and duties of any particular prosecut-
ing attorney. For example, the Haxris Cpur..ty attorney is specifically
required to represent the Hsrris County Flood Control District without
additional compensations Another example of the legislatively imposed
civil duties on county attorneys is a 1997 law declaring the "primary
duty" of the county attorney of Wharton Caanty to be the representa_
tion of `'the state, Wharton County, and county officials in ciiai mat-
ters."s
The Constitution does not impose any cavil duties air prosecuting
attorneys although it does require county attorneys, when there is na
district or criminal district attorney, to represent the state in district or
inferior courts.' When there is a district attorney the respective duties
are deterruirled by the legislature.6
The initial step in determining the civil duti®s of a ~ prosecuting
attorney is consulting the special statute creating the afflce or applicable
to it. These numerous special provisions are not discussed in this section.
The majority of tlr®se special Iaws provide, as to the county's civil legs:
representation, that the prosecutor shall represent tine State or the
county (which terms are often used interchangeetbly) before any court in
which the county may have "pending business"fl or in all "civil cases"'
in the various courts of the county. Thus, these statutes should come
into play only when there is litigation of same sort, which results in a
matter "pending" before some tribunal. There is zro genera3 law that
requires county or district attorneys to represent the county or state's
interest in any and all law suits,
There can, easily be some confasian as to who represents the state in
any particular civil matter. Perhaps the simplest rule to state is that the
only public officials authorized to represent the state or county interest
are county attorneys, district attorneys, and the attorney general; fur-
thermore, generally speaking, the first one who gets to court under
proper authority on any particular matter is entitled to litigate the issue
to the subordination of the other attorneys with equal authority to
appear in court r The authority to represent the state's interest in any
particular civil matter brought in the name of the state, or less frEqueut-
2. V.T.C.A., Government Code § 45.201.
8. Id„ § 45.$_41.
4. Vernan's Ann. Tex. Conet. art. V,
3 21, This authority vie-a•vis the attorney
general is discussed elsewhere. See, $ 81.13.
b. Id.
8. See, e.g., V.T.C.A, C,overnmort Cede
~ 44.129(b) (Calhoun County Criminal Dis•
trio Attorney).
7. Bee, e.g., Id., $44.159 (Criminal Dia-
tri~ Attorney for DeaY Smith County}.
S. See, e.g„ Saher v. Wade, 748 F_2d
236 (Sth Cir.l@84) ietate's interests ade-
quntely represented by attorney ganoral in
:itigation fording portions of Penal Code
obscenity provisions unconatitutior_gl; coun-
ty atkarney as tiros member de£endeust not
entitled to intervene to compel the Prosecu-
tion of appeal of judgment unfavorable to
state).
26©