Driscoll v. Harris County Commissioners Court

688 S.W.2d 569, 1984 Tex. App. LEXIS 4762

• Court: Court of Appeals of Texas
• Decided: November 15, 1984
• Docket: B14-84-241CV
• Status: Published

Opinions

OPINION

PER CURIAM.

This appeal followed the denial of all relief requested in a declaratory judgment action. Although appellant presents twenty-four points of error, the central issues are those created by the conclusions of law construing the authority of the Harris County Toll Road Authority to employ private counsel and the authority of the Harris County Attorney to seek injunctive and declaratory judgment relief with reference to (1) the expenditure of county funds and (2) the creation by the commissioners court of the Harris County Toll Road Authority. We have been favored by excellent briefs by not only counsel for the parties to this appeal, but have also received amicus curiae briefs in support of appellant from the Tarrant County Criminal District Attorney, the Texas District and County Attorneys Association, the Attorney General of Texas and Common Cause of Texas. We reverse.

The case was submitted to the trial court on stipulated facts. Three witnesses additionally testified. We now present a concise statement of that evidence.

On September 22, 1983, the Harris County Commissioners Court adopted an order canvassing the returns and declaring the results of a county bond election which authorized the creation of the Harris County Toll Road Authority and the construction of toll roads in Harris County in accordance with Article 6795b-l. Tex.Rev. Civ.Stat.Ann. art. 6795b-l (Vernon 1960 and Supp.1984). On the same day the commissioners court designated the members of the commissioners court as the operating board of the authority and further authorized the preparation and legal documentation for the issuance of fifty million dollars in toll road revenue and unlimited tax bonds. In connection with the issuance of these bonds the operating board engaged the law firm of Vinson & Elkins to serve as counsel. On November 8, 1983, the operating board entered an order engaging the law firm of Fulbright & Jawor-ski as special counsel for the Toll Road Authority. The Harris County Attorney objected to the employment of special counsel, and informed the commissioners court that his office was capable of doing all the work in connection with the acquisition of the rights-of-way, and other related matters. He further informed commissioners court that the employment of private attorneys without the input of his office was contrary to law and should they persist, legal action would result. They persisted, and consequently the county attorney filed this lawsuit against commissioners court, all the members thereof, the county auditor, the county treasurer, Vinson & Elkins and Fulbright & Jaworski.

At appellant’s request the trial court made numerous findings of fact and conclusions of law. Concerning the authority of the Toll Road Authority to employ private counsel, the trial court made the following conclusions:

12. Because the Harris County Toll Road Authority is a department of county government, Tex.Rev.Civ. Stat. art. 334 and Tex.Rev.Civ.Stat. Ann. art. 2372p are applicable to the issues involved in the above-entitled and numbered cause so far as they are not in conflict with the provisions of art. 6795b-l.

13. Because art. 6795b-l is the subsequently enacted general law, applicable only in the event a county toll road project is being developed, constructed, and- operated, Article 6795b-l constitutes an exception to any provision of Tex.Rev.Civ.Stat. Ann. art. 2372p where art. 6795b-l and art. 2372p conflict.

14. Tex.Rev.Civ.Stat.Ann. art. 6795b-l specifically authorizes the Operating Board of the Harris County Toll Road Authority to employ private legal counsel to provide legal services in connection with the development, construction, operation and management of the Harris County Toll Road Authority.

16. Tex.Rev.Civ.Stat.Ann. art. 6795b-l constitutes an exception to the provisions of art. '2372p which are in conflict with the provisions of art. 6795b-l.

19. Tex.Rev.Civ.Stat.Ann. art. 331h imposes no duties on county attorneys beyond those duties already imposed upon county attorneys, criminal district attorneys and district attorneys other than the duty to represent the Harris County Flood Control District.

While the judgment of the court does not specifically state that the Operating Board need not comply with the provisions of Article 2372p in employing private attorneys, in oral argument both sides agreed that was the necessary result of the court’s order. For the reasons set out in the following discussion, we respectfully disagree with this conclusion.

Article 5, Section 21 of the Texas Constitution provides for the creation of the office of county attorney in those counties not served by a criminal district attorney and states that “[The] County Attorneys shall represent the State in all cases in the District and inferior courts in their respective counties; but if any county shall be included in a district in which there shall be a District Attorney, the respective duties of District Attorneys and County Attorneys shall in such counties be regulated by the Legislature.” In the early case of Brady v. Brooks, 99 Tex. 366, 89 S.W. 1052 (1905), the supreme court recognized this provision as being “very broad” and there found the main purpose of the provision was to make it the duty of the county attorney or the district attorney to represent the state in criminal cases. However, in accordance with the mandate of Article 5, Section 21, the legislature has occasionally provided additional duties for district and county attorneys. The only general statute prescribing the duties of the county attorney is Article 334, providing that district and county attorneys “upon request, shall give an opinion or advice in writing to any county or precinct officer of their district or county, touching their official duties.” Tex.Rev.Civ.Stat.Ann. art. 334 (Vernon 1973). On the other hand, special statutes from time to time, have been enacted. One of the special statutes regulating the duties of the county attorney is Article 33 lh creating the office of Harris County Attorney and prescribing his duties, as follows: It shall be the primary duty of the County Attorney of Harris County or his assistants to represent the State of Texas, Harris County and the officials of such county in all civil matters pending before the courts of Harris County and any other courts where the State of Texas, Harris County and the officials of such county have matters pending. It is understood that the County Attorney will represent the State of Texas, Harris County and the officials of such county in such civil matters as is now required by law of Criminal District Attorneys, District Attorneys, and County Attorneys with the exception that the County Attorney shall represent the Flood Control District of Harris County and perform any and all other duties imposed by this Act without any additional fee, compensation or perquisite other than that paid by Harris County out of its officers salary fund. (Emphasis supplied).

Tex.Rev.Civ.Stat.Ann. art. 831h § 3 (Vernon 1973). Prior to the enactment of this statute, Harris County did not have a county attorney as it was served by a resident criminal district attorney. With the passage of this act and the act creating the office of the district attorney for the criminal district court of Harris County, the office of criminal district attorney was abolished. See Tex.Rev.Civ.Stat.Ann. art. 326k-26 (Vernon 1973).

There are three unique provisions of Article 331h:

1. It attempts to limit the county attorney’s jurisdiction to civil matters. No other county attorneys office in Texas is so limited.

2. It provides that he shall represent the state, county and county officials in all civil matters pending before the courts of Harris County. No other statute imposes such duties upon any other county attorney in the state.

3. It specifically provides that he shall represent the Harris County Flood Control District. This was undoubtedly inserted by the legislature as a result of Opinion No. S-03 of the Attorney General dated February 9, 1953, where it was ruled there was no duty upon the Criminal District Attorney of Harris County to represent the county generally in civil matters or the Harris County Flood Control District.¹

These provisions of Article 331h lead us to the conclusion that it is a special statute imposing specific duties upon the county attorney of Harris County which are not imposed upon county attorneys, criminal district attorneys or district attorneys generally, and for these reasons disagree with conclusion of law number 19. This conclusion is further fortified, we believe, when we consider the later enacted statute, Article 2372p, passed by the legislature in 1961. This act applies only to counties having a population in excess of 500,000 and authorizes the commissioners court:

to employ special counsel ... to represent the county in all suits brought by or against such county, and particularly with authority to render aid and work with the Commissioners Court, the county engineer and other county employees in the preparation of documents necessary in-the acquisition of rights-of-way for the county, or in cases where the county is required to obtain rights-of way for state highways, or to assist in the acquisition of such rights-of-way; to represent the county in all condemnation proceedings for the acquisition of rights-of-way for highways and other purposes where the right of eminent domain is given to counties.

Tex.Rev.Civ.Stat.Ann. art. 2372p (Vernon 1971). However, this authority to employ was specifically conditioned upon the input by the county attorney, and if there was no county attorney, then the district attorney or criminal district attorney was to participate in the process of employing special counsel. Article 2372p specifically provides:

[such] special counsel shall be named by the County Attorney ... and such employment shall be made for such time and on such terms as said County Attorney ... may deem proper and expedient, subject to the approval of the Commissioners Court.

We have been unable to locate any legislative history for this statute and counsel for both sides conceded in oral argument they could find none. We conclude, however, from a review of the statutes creating the various offices of county attorney, district attorney and criminal district attorney, and the absence of any general statutes prescribing the duties of each office, the legislature must have recognized the need and used this statute as a means of authorizing the commissioners courts in counties having a population in excess.of 500,000 to employ special counsel to assist the various counties in the conduct of their business. We find no plausible explanation, however, for the legislature to have then limited the authority of the commissioners court to employ such counsel if there was a county attorney unless it recognized that: (1) a special statute had already been enacted for Harris County providing that the county attorney was to perform the duties it was addressing; and, (2) certain other populous counties had already, either with or without special legislation, provided for representation of the county in such civil matters by the county attorney, district attorney or criminal district attorney. This construction is consistent with the general rule that all statutes are presumed to be enacted by the legislature with full .knowledge of the existing conditions of the law and with reference to it. McBride v. Clayton, 140 Tex. 71, 166 S.W.2d 125 (1942).

This brings us to a discussion of the relationship between Article 6795b-l and Article 2372p as addressed in conclusions of law 13 and 16, and the agreed effect of these conclusions. We do not construe the trial court’s conclusions of law to specifically hold there is conflict between 6795b-l and 2372p. Again, neither counsel for appellant nor appellee contend there is, in fact, a conflict. We do construe the trial court’s conclusions of law to be that since Article 6795b-l(l) was enacted subsequent to 2372p and (2) applies only to a county toll road project, it constitutes an exception to Article 2372p. Again, we do not agree. The applicable portions of Article 2372p authorizing commissioners court to employ “special counsel” have been quoted above and need not be restated here. Material to consideration of this question are the portion of Article 2372p concerning the employment of special counsel, and Section 1 of Article 6795b-l authorizing certain counties to construct, operate and maintain, among other things, a “turnpike, highway, or any combination of such facilities.” Authorized costs include “the cost of construction,- the costs of all property ..; the payment of the costs of condemning any such property, including both the payment of the award and the payment of the court costs and attorneys fees; the payment of all legal, fiscal and engineering expenses incurred in connection with the acquisition and construction of the project and the making of preliminary surveys and investigations and the authorization and issuance of the bonds.” It is further provided in Section 1 that so long as such a project “has not been designated as part of the State Highway System and is not considered a Turnpike Project [as defined by statute], that part of the project (which has not been so designated and is not so considered) in each county shall be considered a part of the county road system of such county, and all laws relating to the maintenance and operation of county roads are hereby made applicable to any project constructed or acquired hereunder in so far as they do not conflict with the provisions hereof” (Emphasis supplied).

Section 5 of Article 6795b-l authorizes the commissioners court, if it so chooses, to appoint an operating board to develop, construct and manage such a project. However, it is specifically provided that such board “shall have and may exercise, subject to such limitations and restrictions as may be prescribed by the Commissioners Court, the same power and authority ... as may be exercised by the Commissioners Court in regard to the development, construction, operation, and management of a project.” (Emphasis supplied). The section further specifically provides that such board “subject to the restrictions and limitations prescribed by the Commissioners Court,” shall have the power and authority “to design the project, to acquire necessary lands or rights-of-way or other property for the project by purchase, condemnation, or otherwise ... and to employ consultants, attorneys, engineers, financial advisors, agents and other employees or contractors in connection with the development, construction, operation and management of the project.” (Emphasis supplied).

As pointed out above, the conclusion of the trial court as to whether there is a conflict between Article 6795b-l and 2372p is, to say the least, vague. As presented to us, neither side contends there is conflict and both sides agree the effect of the conclusions of law and the judgment is that Article 6795b-l is an exception to Article 2372p, that is, that the operating board was authorized to employ attorneys without complying with the terms of Article 2372p. We disagree with this construction of the statutes. Both statutes speak to the same subject, namely, the employment of counsel to represent the county in the acquisition, by condemnation or otherwise, of rights-of-way for the construction of county roads. Article 2372p, however, is a specific statute insofar as it limits the outright authority to hire such counsel (in counties having a population in excess of 500,000) if such county is represented by a county attorney, district attorney or criminal district attorney. Article 6795b-l specifically provides that so long as the project is a part of the county road system, all laws relating to county roads are applicable to the project “in so far as they do not conflict with the provisions hereof.” We must give effect to this plain wording of the statute and, unless there is a conflict between the two statutes, give effect to both. The trial court did not expressly find a conflict; neither appellant nor appellee contend there is a conflict, and we find there is no conflict.

In this state of the record we apply the well recognized rule expressed in Gordon v. Lake, 163 Tex. 392, 356 S.W.2d 138 (1962):

A statute may be repealed expressly or by implication. Where a later enactment is intended to embrace all the law upon the subject with which it deal§, it repeals all former laws relating to the same subject. (Citation omitted). Repeals by implication are not favored, however, and laws relating to the same subject should be considered as though incorporated in the same act. If they can be harmonized and effect given to each when so considered, there is no repeal by implication.

Gordon 356 S.W.2d at 139. As previously explained, all statutes are presumed to be enacted by the legislature with full knowledge of the existing condition of the law and with reference to it. McBride v. Clayton, 140 Tex. 71, 166 S.W.2d 125 (1942). And when a new statute is passed dealing with a subject covered by an old law, if there is no express repeal, the presumption is that in enacting a new law the legislature intended the old statute to remain in operation. State v. Humble Oil and Refining Co., 187 S.W.2d 93, 100 (Tex.Civ. App. — Waco 1945) (appeal to Supreme Court disallowed at 194 S.W.2d 811, Tex. Civ.App. — Waco 1946).

Under the tests set out by these cases it cannot be seriously argued that 6795b-l (the later enactment) embraces all the law on the subject with which it deals because it expressly makes all laws relating to the maintenance and operation of county roads applicable. It is a simple matter to harmonize the provisions of the two acts, at least as they apply to Harris County: the commissioners court is authorized to employ attorneys, but in order to do so, it must comply with the restrictions of Article 2372p.

This brings us to consideration of conclusion of law number 14 that Article 6795b-l “specifically authorizes the Operating Board of the Harris County Toll Road Authority to employ private counsel to provide legal services in connection with the development, operation and management of the Harris County Toll Road Authority.” While faced with the same problem concerning the ambiguity of the conclusion, we again address the issue on the basis of the agreement of counsel for both sides previously stated. With this understanding, we again disagree with the conclusion. As previously concluded, the commissioners court of Harris County could not employ counsel under the provisions of Article 6795b-l without complying with Article 2372p. Furthermore, Section 5b of Article 6795b-l specifically provides that the operating board has no greater power or authority than commissioners court. We therefore hold that in order for the operating board appointed under the authority of Article 6795b-l to employ counsel, it must comply with the provisions of Article 2372p.

Our holding on the conclusions of law as discussed above necessarily compels us to further conclude that conclusion of law number 22, providing:

[T]he employment of legal counsel other than the County Attorney to perform legal services for the Operating Board of Harris County Toll Road Authority does not constitute an usurpation of the powers and public duties of the office of the County Attorney of Harris County, Texas in contravention of the Constitution and laws of the State of Texas,

is erroneous, and we so hold.

In various points of error appellant attacks the trial court’s conclusions of law that, as county attorney, he had neither the authority to seek an injunction against or declaratory judgment with reference to the expenditure of funds belonging to Harris County nor the requisite justiciable interest to attack either the formation of the Toll Road Authority or the appointment of the commissioners court as the members of the operating board of the Toll Road Authority.

Appellant brought suit only in his official capacity as county attorney. The trial court found that he had standing to seek declaratory relief concerning his duties as county attorney, but found that as county attorney of Harris County he (1) had no authority to seek an injunction or declaratory judgment with reference to the expenditure of county funds, and (2) lacked the requisite justiciable interest to attack either the formation of the Harris County Toll Road Authority or the appointment of the operating board. Appellant argues that under the broad provisions of the Uniform Declaratory Judgments Act he has the authority not only to bring an action concerning his duties, but also as to these matters. Tex.Rev.Civ.Stat.Ann. art. 2524-1 (Vernon 1965). He cites no authority so holding and we find none. It has generally been held that the county attorney has no authority to institute a proceeding for or on behalf of the county unless he is given that power by statute or order of the commissioners court. Looscan v. County of Harris, 58 Tex. 511 (1883); County of Ward v. King, 454 S.W.2d 239 (Tex.Civ.App. — El Paso 1970, writ dism’d); Wexler v. State, 241 S.W. 231 (Tex.Civ. App. — Galveston 1922, no writ); Duncan v. State, 28 Tex.Civ.App. 447, 67 S.W. 903 (1902, no writ). We cannot read into the Uniform Declaratory Judgments Act any intent to change this rule. His authority being so restricted, it appears to follow, therefore, that the county attorney in his official capacity would not have the authority by injunction or declaratory judgment to seek relief against the expenditure of county funds. For the same reason, in his official capacity, we hold he lacked the requisite justiciable interest to attack the formation of the Authority or the appointment of the members of the board.

Finally, appellant contends the trial court erred in assessing all costs against him individually. He argues that it is “patently inconsistent” for the trial court to have found he was authorized to maintain in his official capacity the suit for a declaration of his duties and to then assess costs against him individually. The trial judge, of course, has wide discretion in assessing costs. If the only issue raised by appellant’s pleadings was the one we sustain, then to assess costs against him individually could quite easily be found to be an abuse of discretion. Considering, however, all the matters before the court, we cannot find an abuse of discretion on the part of the trial court. We will, however, exercise our discretion and assess all costs of this appeal against appellees.

We do not consider the other assignments of error to be controlling points in the case and they are overruled.

This brings us to the proper disposition by this court of this appeal. Appellant asks that pursuant to Rule 434, Texas Rule of Civil Procedure, we reverse and “render the judgment the Court below should have rendered.” While we normally would do so, we believe that because of the number and complexity of the issues involved, the trial court, with the active assistance of the attorneys involved, is in a more advantageous position to enter the proper judgment.

The judgment is reversed and remanded for further proceedings consistent with this opinion.

Before the court en banc.

1 . In this regard, it is interesting to note that during the same legislative session when the office of Harris County Attorney was created, the legislature also authorized certain counties, including Harris, to establish a hospital district, and specifically provided that it “shall be the duty of the County Attorney, District Attorney or Criminal District Attorney, as the case may be, charged with the duty of representing the county in civil matters, to represent the Hospital District in all legal matters.” Tex.Rev.Civ.Stat. Ann. art.,4494n § 12 (Vernon 1976) (emphasis supplied). Of course, it was necessary for the legislature to specifically provide for county attorney representation of both the flood control district and the hospital district because, while both are in a sense administratively under the control of commissioners court, each is a separate governmental entity, independent and distinct within itself. See Harris County Flood Control District v. Mann, 135 Tex. 239, 140 S.W.2d 1098 (1940).