County of Ward v. King, 6114

• Decision Date: 29 April 1970
• Docket Number: No. 6114,6114
• Citation: 454 S.W.2d 239
• Parties: COUNTY OF WARD, State of Texas, Appellant, v. E. A. KING et al., Appellees.
• Court: Texas Court of Appeals

Page 239

454 S.W.2d 239

COUNTY OF WARD, State of Texas, Appellant, v. E. A. KING et al., Appellees.

No. 6114.

Court of Civil Appeals of Texas,

El Paso.

April 29, 1970.

Rehearing Denied May 20, 1970.

Ed Keys, County Atty., Monahans, for appellant.

Roddy L. Harrison, Pecos, T. H. Neel, Monahans, for appellees.

OPINION

WARD, Justice.

This appeal is from suit in District Court filed on behalf of Ward County by its County Attorney, and against the County Judge and each of the Commissioners of Ward County, acting in their official capacities, seeking to enjoin them from spending any of the funds of the county on a retirement program for county employees. The trial court sustained a plea in abatement filed by the defendants and dismissed the suit on the basis that the county attorney had no authority to institute the proceedings. We affirm the judgment of the trial court.

On September 22, 1969 the appellees, as the Commissioners' Court of Ward County, voted for the county to participate as a member of the Texas County and District Retirement System Act, Vernon's Ann.Civ.St., Article 6228g. It is the appellant's contention, as reflected by its pleadings, that the appellees failed to give any notice of the subject matter of the meeting as contemplated by Article 6252--17, V.A.C.S., which had become effective on September 1, 1969; that the action of the Commissioners' Court in placing Ward County in the retirement plan is voidable at the option of any interested citizen when suit is brought thereon; and further, that the retirement system act is unconstitutional. By supplemental petition the appellant alleged that a subsequent Commissioners' Court meeting held to ratify the previous action and which was held after publication of a notice of its meeting, was invalid; that the Commissioners' action in employing and paying the appellees' present attorneys to represent the appellees in the defense of this present suit was likewise invalid; and finally, that the appellees should be enjoined from committing any act which would permit Ward County to be involved in the retirement plan, and that the attorneys' fee paid should be recovered. At the hearing on the plea in abatement and motion to dismiss the appellant's suit, the uncontradicted testimony was to the effect that the county attorney brought this suit on behalf of Ward County without the authority of the Ward County Commissioners' Court or the Attorney General or of anyone else.

Section 21 of Article V of the Constitution of the State of Texas, Vernon's Ann.St., authorizes the county attorney to represent the state in all cases in the district and inferior courts in their counties. However, the distinction between the authority to represent the state or the county on the one hand, and the authority to institute civil litigation on the other, is set out in the case of Wexler v. State, 241 S.W. 231 (Tex.Civ.App., Galveston 1922):

'* * * The article of the Constitution above quoted which provides that the county attorney shall represent the state in all cases in the district and...