Guynes v. Galveston County

• Citation: 861 S.W.2d 861
• Decision Date: 23 June 1993
• Docket Number: No. D-2501,D-2501
• Parties: Ben M. GUYNES, Petitioner, v. GALVESTON COUNTY et al., Respondents.
• Court: Supreme Court of Texas

Page 861

861 S.W.2d 861

Ben M. GUYNES, Petitioner, v. GALVESTON COUNTY et al., Respondents.

No. D-2501.

Supreme Court of Texas.

June 23, 1993.

Rehearing Overruled Oct. 27, 1993.

Dissenting Opinion of Justice Gammage

on Denial of Rehearing Oct. 27, 1993.

Anthony P. Griffin, Galveston, for petitioner.

Scott Lyford, Donald S. Glywasky, Darlene Kolaga, Michael J. Guarino, B. Warren Goodson, Galveston, David B. Brooks, Aaron L. Jackson, Austin, Mike Driscoll, Houston, Patrick Reilly, Galveston, for respondents.

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 S.W.2d 487. 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 Guarino 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 case 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 Department 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., ch. 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 impermissibly 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 ref'd 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,...