Travis County v. Matthews

• Decision Date: 06 December 1950
• Docket Number: No. 9919,9919
• Citation: 235 S.W.2d 691
• Parties: TRAVIS COUNTY v. MATTHEWS et al.
• Court: Texas Court of Appeals

Page 691

235 S.W.2d 691

TRAVIS COUNTY v. MATTHEWS et al.

No. 9919.

Court of Civil Appeals of Texas, Austin.

Dec. 6, 1950.

Rehearing Denied Jan. 10, 1951.

Perry L. Jones, County Atty. of Travis County, Smith, Rotsch & Steakley, by Cecil C. Rotsch, Austin, for appellant.

Polk Shelton, of Austin, for appellees Warren S. Fruend, U. S. McCutcheon, American Indem. Co., and Standard Acc. Co.; Looney, Clark & Moorhead, Everett L. Looney, William A. Brown, and Ralph W. Yarborough, all of Austin, for appellee George S. Matthews.

HUGHES, Justice.

In Travis County v. Matthews, 221 S.W.2d 347, by this court, it appeared that a suit, in the nature of a mandamus proceeding, was instituted by George S. Matthews, then County Judge of Travis County, against Travis County and certain of its officials, to compel payment of compensation alleged to be due him for services rendered as a member of the Juvenile Board of Travis County. The trial of such suit resulted in a District Court judgment for Judge Matthews for the full amount claimed. Notice of appeal was given by the county and pending the appeal Travis County, acting through its Commissioners' Court, satisfied this judgment by payment. Upon proper motion and hearing and upon these facts, we held the case moot, reversed the trial court's judgment, and dismissed the cause without prejudice to the rights of the parties.

Our opinion in the above case was delivered May 11, 1949, and no motion for rehearing having been filed by any of the parties the judgment rendered in accordance with such opinion became final fifteen days later.

Subsequently and on August 13, 1949, the present suit was filed by Travis County against the same George S. Matthews, who was plaintiff in the previous suit, and against Warren S. Freund, U. S. McCutcheon, American Indemnity Company, and Standard Accident Insurance Company.

Defendants Freund and McCutcheon were County Commissioners of Travis County when the judgment in favor of Judge Matthews was paid, and the two insurance companies were sureties on their respective offical bonds.

The purpose of the instant suit by Travis County is to recover all of the money paid Judge Matthews by the County in satisfaction of the District Court judgment in the previous suit, on the ground that there was no valid law authorizing payment of the compensation claimed by Judge Matthews, and in the alternative for the recovery of that portion of such money which was barred by the statute of limitations at the time the District Court judgment was rendered.

The judgment appealed from in this case is one of dismissal, the judgment being rendered in response to motions made by appellees and without any formal trial on the merits.

Generally, then it is appellant's contention that its pleadings stated a cause of action, and hence the trial court was not justified in dismissing the suit.

The pleadings of appellant are very lengthy. They have been excellently summarized in appellant's brief, which summary is set out in the footnote. ¹

As we construe these pleadings a cause of action for the recovery of all or a portion of the money sued for is attempted to be based upon these legal concepts: (1) that payment of $8,213.82 of the money paid to discharge the District Court judgment was illegal because the Commissioners' Court had not ordered payment of or allowed claims for such amount during the terms of office in which Judge Matthews had earned such money; (2) that the allegations, considered as a whole, were sufficient to constitute bad faith on the part of appellees to such an extent as to make them liable for the full amount (or at least the amount barred by limitation) paid Judge Matthews; and (3) that the payment to Judge Matthews was illegal because based upon an unconstitutional law.

The statute upon which Judge Matthews' claim for additional compensation is based is Art. 3912e-5 Vernon's Ann.Civ.St., Acts 1941, 47th Leg. p. 549. This statute concludes, '* * * such additional salary shall be paid in twelve (12) equal installments out of the General Funds of such county, upon the order of the Commissioners' Court.'

There is no provision in the statute specifying when the order of the Commissioners' Court should be made. Certainly there is no requirement that the order be made bi-annually, as appellant contends. The order in this case was belatedly made, but we believe in substantial compliance with the statute. Furthermore, we are of the opinion that the Commissioners' Court in making the order contemplated by the statute performs a ministerial act only and that the failure to enter any order could not deprive the County Judge of the compensation fixed by statute. There is no merit in this phase of appellant's purported cause of action.

Appellant charges that Commissioners Freund and McCutcheon acted 'wrongfully, knowingly, maliciously, and without pure motive and without good faith' in voting for payment of the Matthews judgment, and that Judge Matthews 'unlawfully and without authority took said money and converted it to his own use and benefit.'

The fact allegations in support of these conclusions are (a) that the Matthews judgment was ordered paid by the Commissioners' Court two days prior to the expiration of the terms of office of Judge Matthews and Commissioners Freund and McCutcheon and at a time when one of the two other Commissioners was absent; (b) that Judge Matthews had deferred making claim for this compensation until after he had been defeated for re-election; (c) that all members of the Commissioners' Court had notice of an opinion by the Attorney General that the law upon which Judge Matthews based his claim was unconstitutional and that the County Attorney had given them similar advice; and (d) that when the judgment was paid notice of appeal had been given by the County attorney and the questions raised by the pleas of unconstitutionality and limitation were still issuable.

It is elemental that if the official acts of Commissioners Freund and McCutcheon in the premises were lawful, then it is wholly immaterial that their motives may have been impure or that good faith was absent, '* * * it not being fraud for a person to do what he has a legal right to do * * *.' 37 C.J.S., Fraud, § 1, pp. 204, 205.

There is no law which curtails the authority of a county judge or a county commissioner according to (1) whether he stands for re-election, (2) has been defeated for re-election, or (3) has only two days left to serve.

Nor was the validity of the order of directing payment of the Matthews judgment invalid because of the absence of one of the Commissioners. A quorum was present. Art. 2343, V.A.C.S.

We are not advised in what manner it is claimed that the legality of Judge Matthews' claim is affected by the date of its filing in relation to his defeat in the 1948 summer primary election. We perceive no materiality in this allegation.

We also attach no importance to the allegations that the Commissioners' Court had knowledge of an Attorney General's opinion that the statute involved was unconstitutional and of similar advice of the County Attorney in view of the fact that the District Court of Travis County had subsequently ruled otherwise. Neither the opinion of the Attorney General nor the advice of the County Attorney has the force of law. It was with proper propriety that the Commissioners' Court followed the advice of these officials prior to the rendition of a judgment by the District Court, a court of competent jurisdiction. Thereafter, the complexion of matters was entirely different. The final judgment of a district court is just as decisive and just es enforceable as a final judgment of the Supreme Court. The question is then: Should the acceptance of this District Court judgment by Travis County furnish any evidence of fraud, bad faith, or impure motives on the part of the Commissioners' Court? If so, then a similar taint of fraud would attach to a great majority of district court judgments because only a small per cent of them are appealed.

There is no statute which requires a county to appeal from an adverse judgment. The question of whether to appeal involved a matter of discretion. Opposed to the advice of the Attorney General and the County Attorney was the reality of a local district court judgment, the expense of an appeal, interest on the judgment, and the possibility of a 10% penalty. Rule 438, Texas Rules of Civil Procedure.

These considerations fail to leave an implication of wrongdoing in the action of the Commissioners' Court in ordering the Matthews judgment paid.

We are also unable to agree with appellant that the County Attorney of Travis County could prosecute an appeal in the former Matthews suit against the wishes of the Commissioners' Court of Travis County. A county may sue and be sued. Rule 33 T.R.C.P. If a county may be sued it certainly has the right to defend itself, and this right of defense is held by the Commissioners' Court since the powers and duties of a county are vested in a Commissioners' Court, which court is the executive head of the business affairs of the county. 11 Tex.Jur., p. 614, Seagler v. Adams, Tex.Civ.App., 238 S.W. 707, affirmed 112 Tex. 583, 250 S.W. 413; Looscan v. County of Harris, 58 Tex. 511. In this connection we consider wholly inapplicable Art. 339, V.A.C.S., which provides that a county attorney who has knowledge that any officer in his county '* * * entrusted with the collection or safe-keeping of any public funds is in any manner whatsoever neglecting or abusing the trust confided in him, or in any way failing to discharge his duties under the law * * *' shall institute such proceedings as are necessary to protect the public interests.

It is obvious that a suit by a county official against the county for services performed by such official is not within the class of actions defined in the above statute.

A great deal is said in the briefs about limitation. The...