Guynes v. Galveston County

861 S.W.2d 861, 1993 WL 218643

• Court: Texas Supreme Court
• Decided: October 27, 1993
• Docket: D-2501
• Status: Published

Opinions

OPINION

CORNYN, Justice.

Galveston County resident and taxpayer Ben M. Guynes challenges the Galveston County Commissioners Court’s use of staff attorneys to conduct its civil legal affairs. On cross-motions for summary judgment, the trial court granted Guynes’ motion, enjoining the Commissioners Court from funding the Galveston County Legal Department and enjoining the Department from holding itself out as the County’s legal representative. The court of appeals reversed and rendered judgment for the Commissioners Court. 827 . Because we conclude that the Commissioners Court may under the unique facts presented in this case legally employ staff attorneys to advise and represent it concerning civil matters, we affirm the judgment of the court of appeals.

In 1978 the Commissioners Court of Galveston County established the Galveston County Legal Department, consisting of four salaried attorneys, to provide civil legal services to the Commissioners Court, Galveston County, and other related entities, such as the Galveston County Health District, the Galveston County Beach Park Board, and Mainland Center Hospital. Guynes filed this declaratory judgment action against the county, the Commissioners Court, the individual commissioners, the Department and its members, and Galveston County Criminal District Attorney Michael J. Guarino and his assistants, claiming that establishing the Department was an unauthorized and illegal expenditure of county funds, an attempt to revive the statutorily-abolished County Attorney’s Office, a usurpation by the Commissioners Court of the duties of the Criminal District Attorney, and a corresponding abdication of those duties by Criminal District Attorney Guarino. The Commissioners Court asserted that in the exercise of its implied powers it could retain counsel and choose the method of compensation, and that the Department was merely assisting Guari-no in carrying out his civil duties with his consent.

Both parties presented motions for summary judgment on undisputed facts. In granting Guynes’ motion, the trial court specifically concluded'that the creation and funding of the Department was not authorized by law, that the Criminal District Attorney was statutorily charged with representing the county in court and “all the associated duties and responsibilities that necessarily arise from being the lawyer for the county,” and that the Criminal District Attorney could not consent to the delegation of his official duties. The court of appeals reversed, holding that the Criminal District Attorney was not charged with exclusive responsibility for representing the county in civil matters, and that under the ease of Seagler v. Adams, 238 S.W. 707 (Tex.Civ.App.—Galveston 1922), aff'd, 112 Tex. 583, 250 S.W. 413 (Tex.1923), the county could in good faith retain attorneys to assist the Criminal District Attorney, as long as he was not prevented from performing his statutory duties. 827 S.W.2d at 492-93.

As the parties dispute not the facts but the legality of the Commissioners Court’s action, we review the cross-motions for summary judgment by determining all legal questions presented. Jones v. Strauss, 745 S.W.2d 898, 900 (Tex.1988) (orig. proceeding). Each party bears the burden of establishing that it is entitled to judgment as a matter of law. See Nixon v. Mr. Property Management Co., Inc., 690 S.W.2d 546, 548 (Tex.1985).

Guynes’ twofold challenge to the Departs ment is grounded in the constitutional and statutory provisions setting out the duties of county and district attorneys. Article 5, section 21 of the Texas Constitution provides that:

A County Attorney, for counties in which there is not a resident Criminal District Attorney, shall be elected by the qualified voters of each county.... 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 1955 the legislature abolished the office of County Attorney of Galveston County, and established the constitutional office of Criminal District Attorney for Galveston County. Act of April 29,1955, 54th Leg., R.S., eh. 124, 1955 Tex.Gen.Laws 454, repealed by Act of June 12, 1985, 69th Leg., R.S., ch. 480, § 26, 1985 Tex.Gen.Laws 1720, 2048. The voters of Galveston County currently elect a criminal district attorney with duties that include the following:

(a) The criminal district attorney of Galveston County shall attend each term and session of the district courts of Galveston County ... and shall exclusively represent the state in all criminal matters before those courts. He shall represent Galveston County in any court in which the county has pending business.

(b) The criminal district attorney has all the powers, duties, and privileges in Galveston County that are conferred by law on county and district attorneys in the various counties and districts.

Tex.Gov’t Code § 44.184.

Guynes charges that by using the Department to provide legal services on a continuing basis, the Commissioners Court has usurped the Criminal District Attorney’s duty to represent the county “in any court,” and to exercise “all the powers, duties, and privileges” with which he is charged as a constitutional officer.¹ He seeks to define not the duties of the Criminal District Attorney, but the source of the Commissioners Court’s authority for the creation of the Department, arguing that the Commissioners Court cannot exercise its implied authority to perform functions statutorily-imposed on another county official. Guynes further argues that Criminal District Attorney Guarino’s consent to the arrangement, as evidenced by the Commissioners’ summary judgment proof, is of no consequence because the Commissioners Court cannot deprive Guarino of his duties or displace him by authorizing others to carry out those duties. See Aldrich v. Dallas County, 167 S.W.2d 560, 565 (Tex.Civ.App.—Dallas 1942, writ dism’d). By resurrecting the office of the Galveston County Attorney in the form of the Department, he charges, the Commissioners Court has im-permissibly deprived the voters of their constitutional right to elect and replace an official. See Tarrant County v. Ashmore, 635 S.W.2d 417, 421 (Tex.1982).

We disagree. Article 5, section 18 of the Texas Constitution provides that a commissioners court “shall exercise such powers and jurisdiction over all county business, as is conferred by this Constitution and the laws of the State-” This provision has been interpreted to mean that although a commissioners court may exercise broad discretion in conducting county business, the legal basis for any action taken must be grounded ultimately in the constitution or statutes. Canales v. Laughlin, 214 S.W.2d 451, 453 (Tex.1948); Renfro v. Shropshire, 566 S.W.2d 688, 690 (Tex.Civ.App.—Eastland 1978, writ ref d n.r.e.). As the administrative head of county government, a commissioners court also possesses broad implied powers to accomplish its legitimate directives. Pritchard & Abbott v. McKenna, 162 Tex. 617, 350 S.W.2d 333, 334 (1961); Anderson v. Wood, 137 Tex. 201, 152 S.W.2d 1084, 1085 (1941); Galveston County v. Gresham, 220 S.W. 560, 562 (Tex.Civ.App.—Galveston 1920, writ ref d). These powers include the authority to contract with experts when necessary, including attorneys. See Pritchard & Abbott, 350 S.W.2d at 334; McClintock & Robertson v. Cottle County, 127 S.W.2d 319, 321 (Tex.Civ.App.—Amarillo 1939, writ dism’d judgm’t cor.).

Although this court has not specifically addressed the question whether a commissioners court may employ a permanent legal staff to advise it in its various civil affairs, the courts of this state have for the last century upheld the power of a commissioners court to hire counsel to assist it or other officials in carrying out their responsibilities so long as the statutory duties of other county officials are not thereby usurped. E.g., Terrell v. Greene, 88 Tex. 539, 31 S.W. 631, 633 (1895); Maud v. Terrell, 109 Tex. 97, 200 S.W. 375, 376 (1918); Seagler, 238 S.W. at 708. As long as the commissioners court does not impinge on the statutory duties of other officials, it retains the implied power to control litigation and choose its legal remedies. See Looscan v. The County of Harris, 58 Tex. 511, 514 (1883); Terrell v. Greene, 31 S.W. at 633; Travis County v. Matthews, 235 S.W.2d 691, 697 (Tex.Civ.App.—Austin 1950, writ refd n.r.e.). Moreover, county and district attorneys are charged primarily with enforcement of the criminal statutes, Brady v. Brooks, 99 Tex. 366, 89 S.W. 1052, 1056 (1905), and “it is not one of their prescribed legal duties to represent the county in its general legal business or the conduct of ordinary civil actions.” Hill Farm, Inc. v. Hill County, 425 S.W.2d 414, 419 (Tex.Civ.App.—Waco 1968), aff'd, 436 S.W.2d 320 (Tex.1969).²

Although the Galveston County Criminal District Attorney has the exclusive duty to represent the state in criminal matters, section 44.184 does not impose a corresponding exclusive duty to represent the county in civil matters. The Department assists the Commissioners Court in carrying out a wide-range of duties related to the county’s civil business — personnel matters, bond issues, rightsof-way acquisitions, workers’ compensation claims, tort claims — none of which fall within the exclusive ambit of the Criminal District Attorney’s statutory duties. When read in conjunction with the long-standing authority of the Commissioners Court to seek legal assistance, we understand section 44.184 to impose a duty on the Criminal District Attorney to represent the county if requested, but not to deprive the Commissioners Court of the option of availing itself of the advice of other counsel when the legal matter to be addressed in not one within the Criminal District Attorney’s exclusive domain. See Gibson v. Davis, 236 S.W. 202, 212 (Tex.Civ.App.—Galveston 1921, no writ). And in the exercise of its implied powers, just as it could set the terms of a contract with outside counsel, we conclude that the Commissioners Court may set the terms and conditions of employment. So long as the Commissioners Court has not delegated the Criminal District Attorney’s duties, and the summary judgment record presents no evidence that it has, that court may in the exercise of its discretion choose the method of hiring attorneys it deems most beneficial to the residents and taxpayers of Galveston County.

We note also that in this case Criminal District Attorney Guarino has clearly and unequivocally consented to the present arrangement for handling the county’s civil legal affairs. We are not called on to resolve any actual conflict between the Commissioners Court and the Criminal District Attorney, and do not address what limitations might be imposed on the present arrangement should the Criminal District Attorney withdraw his consent or otherwise object to the business or conduct of the Department.

Although we agree with Guynes that the Commissioners Court could not rinse the stain of illegality in a wash of acquiescence, because 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 has consented to the arrangement, we hold that the Commissioners Court may fund and make use of the Galveston County Legal Department in the conduct of its civil legal affairs.

The judgment of the court of appeals is affirmed.

Dissenting opinion by HIGHTOWER, J., joined by GONZALEZ, DOGGETT and GAMMAGE, JJ.

1 . Guynes relies primarily on two cases for the proposition that a commissioners court cannot hire outside counsel to perform the statutory duties of a county attorney: Holmes v. Eckels, 731 S.W.2d 101 (Tex.App. — Houston [1st Dist.] 1987), writ ref'd n.r.e.), and Driscoll v. Harris County Comm'rs Court, 688 S.W.2d 569 (Tex. App. — Houston [14th Dist.] 1984, writ ref’d n.r.e.). As the courts of appeals in those cases and in this case noted, the legislature has specifically imposed on the Harris County Attorney the duty to represent that county in "all civil matters pending before the courts of Harris County....” TexGov’t Code § 45.201. No corresponding statute imposes exclusive civil authority on any prosecuting official of Galveston County. See also, Op.Tex. Att’y Gen. No. JM-1281 (1990) (Harris County Attorney vested with exclusive statutory authority to represent county in civil matters or approve counsel for specific matters; therefore, commissioners court could not employ its own staff counsel).

2 . The statutory duties imposed on all prosecuting attorneys are set out in Chapter 41 of the Government Code, and include the duty to turn over certain funds to the state, § 41.005, provide requested reports to the attorney general, § 41.006, provide written advice to county officials on request, § 41.007, keep a register of official acts and reports, § 41.008, and institute proceedings against officials charged with safekeeping of public funds, § 41.009.