Driscoll v. Harris County Com'rs Court

• Decision Date: 15 November 1984
• Docket Number: No. B14-84-241CV,B14-84-241CV
• Parties: Mike DRISCOLL, Appellant, v. HARRIS COUNTY COMMISSIONERS COURT, et al., Appellees. (14th Dist.)
• Court: Texas Court of Appeals

Page 569

688 S.W.2d 569

Mike DRISCOLL, Appellant, v. HARRIS COUNTY COMMISSIONERS COURT, et al., Appellees.

No. B14-84-241CV.

Court of Appeals of Texas,

Houston (14th Dist.).

Nov. 15, 1984.

Rehearing Denied with Opinion Feb. 28, 1985.

Marsha L.W. Floyd, Dori A. Wind, Asst. County Attys., Houston, for appellant.

Joe H. Reynolds, Reynolds, Allen & Cook, David T. Harvin, Vinson & Elkins, Houston, for appellees.

Before PAUL PRESSLER, ROBERTSON and ELLIS, JJ.

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-1. Tex.Rev.Civ.Stat.Ann. art. 6795b-1 (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 & Jaworski 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-1.

13. Because art. 6795b-1 is the subsequently enacted general law, applicable only in the event a county toll road project is being developed, constructed, and operated, Article 6795b-1 constitutes an exception to any provision of Tex.Rev.Civ.Stat.Ann. art. 2372p where art. 6795b-1 and art. 2372p conflict.

14. Tex.Rev.Civ.Stat.Ann. art. 6795b-1 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-1 constitutes an exception to the provisions of art. 2372p which are in conflict with the provisions of art. 6795b-1.

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 331h 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. 331h § 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.

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