# Guynes v. Galveston County > Texas Supreme Court · October 27, 1993 · 861 S.W.2d 861 URL: https://www.frixlaw.com/law-library/cases/9677410 ## Case - **Full name:** Ben M. GUYNES, Petitioner, v. GALVESTON COUNTY Et Al., Respondents - **Court:** Texas Supreme Court - **Decided:** October 27, 1993 - **Citations:** 861 S.W.2d 861; 1993 WL 218643 - **Precedential status:** Published - **Opinion:** Dissent by Gammage - **Judges:** Cornyn, Hightower, Gonzalez, Doggett, Gammage - **Cited by:** 211 later opinions in the Frix Law Library ## Citator (automated) - No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases. - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9677410 ## How later opinions describe it (automated extraction) - stating that article V, section 18 of the Texas Constitution permits a commissioners court to exercise broad discretion to conduct county business, although "the legal basis for any action taken must be grounded ultimately in the constitution or statutes" - stating that a county with authority to hire legal counsel could set terms of a contract with outside counsel in the exercise of its implied authority - stating that district attorneys have no legal duty "to represent the county in its general legal business or the conduct of ordinary civil actions" ## Opinion text DISSENTING OPINION ON MOTION FOR REHEARING GAMMAGE, Justice, dissenting. I write on rehearing to object again to the majority’s break with precedent on the powers of the commissioners courts. The briefs of amici demonstrate that when the legislature wants to grant commissioners courts of certain counties express authority over legal representation in specific matters, it does so. The legislature’s failure to grant such express authority to Galveston County leaves no doubt that it did not intend to authorize the creation of this so-called Legal Department. For civil legal matters, Galveston County has not just “assisted” its duly elected criminal district attorney. Rather, it has entirely supplanted the district attorney by the in-house “Legal Department” which is comprised of unelected attorneys employed by the county who are selected, hired, fired, and supervised exclusively by the commissioners court. No after-the-fact “acquiescence” by the current criminal district attorney should affect the facts which we address here. The Galveston County Commissioners Court simply has neither the express nor implied constitutional or statutory authority to run this de facto county attorney’s office as a county “Legal Department.” In general, a commissioners court has only that authority specifically granted by the constitu *868 tion and statutes. Anderson v. Wood, 137 Tex. 201, 204 , 152 S.W.2d 1084, 1085 (1941). The only implied powers we recognize are those necessary to the exercise of the express powers granted. Commissioners’ Court of Madison County v. Wallace, 118 Tex. 279, 287 , 15 S.W.2d 535, 537 (1929); see also Foster v. City of Waco, 113 Tex. 352, 356 , 255 S.W. 1104, 1106 (1923). It has been settled policy of this state to not find broad implied powers for commissioners courts. When the legislature intends to authorize a particular county’s commissioners court to create legal employment separate from the criminal district attorney, it says so expressly. There are a number of statutes granting such express authority. 1 The corresponding Galveston County statute has no such express provision. 2 This precise lack of a special authorization forces the conclusion that Galveston County lacks the power to create the “Legal Department” bureaucracy it has erected. When there is an established policy of this state (as there is against implying additional powers for a commissioners court), then a power may not be implied from a failure to mention it in the statute; rather, the legislature must state in the statute, in “clear and positive” terms, the intention to grant the authority. Red River Nat’l Bank v. Ferguson, 109 Tex. 287, 291 , 206 S.W. 923, 925 (1918); see also Magnolia Petroleum Co. v. Walker, 125 Tex. 430, 442 , 83 S.W.2d 929, 935 (1935), cert, denied, 296 U.S. 623 , 56 S.Ct. 144 , 80 L.Ed. 442 (1935) (“plain and unequivocal language” must be used). This principle particularly applies when there are similar or related statutes in which the legislature uses express language to grant such authority. C.L.B. v. State, 567 S.W.2d 795, 796 (Tex.1978). The legislature’s omission of special express authority for Galveston County indicates it intended none. The majority errs when it authorizes the Galveston County Commissioners Court to create its own peculiar “Legal Department” as though it still had a county attorney’s *869 office, with the glaring exception that the substitute county attorneys are answerable to the commissioners court and not the electorate. The majority sits as a super-legislature to convey this power despite established legal principles and precedent that dictate against it. If the legislature meant for Galveston County to have this extraordinary power, it would have said so, as it did for those counties granted special litigation authorization. For these reasons, I dissent from the court’s opinion and further dissent from the overruling of the motion for rehearing. GONZALEZ, HIGHTOWER, and DOGGETT, JJ., join in this dissenting opinion. . The following express grants are not claimed to be an all-inclusive listing: For Austin County, TexGov't Code § 44.108(b) provides: The criminal district attorney shall represent the state in all matters in the district and inferior courts in the county.... This subsection does not prevent the county from retaining other legal counsel as it considers appropriate. ... For Bexar County, TexGov’t Code § 44.115(e) provides: The Commissioners Court of Bexar County, acting in conjunction with and on the approval of the criminal district attorney, may employ special counsel, learned in the law, to represent the county in a condemnation or eminent domain proceeding, particularly in a case involving the acquisition of rights-of-way. The employment shall be for the time and on the terms that the commissioners court and the criminal district attorney consider necessary and proper. The employment may be terminated in the manner provided by law for the removal of an assistant, investigator, or other employee of the criminal district attorney. For Calhoun County, TexGov’t Code § 44.129(b) provides: The criminal district attorney shall represent Calhoun County in any court in which the county has pending business. This subsection does not prevent the county from retaining other legal counsel in a civil matter as it considers appropriate. For Denton County, TexGov’t Code § 44.161(c) is an identical provision to § 44.129(b) above, except that "Denton County" is substituted for "Calhoun County.” For Tarrant County, TexGov't Code § 44.320(b), (d) provide: (b) The criminal district attorney has all the powers, duties, and privileges ... that are conferred by law on county and district attorneys ..., except in a condemnation case in which the commissioners court hires special counsel to represent the county as provided by Subsection (d). * * ‡ * ⅛ $ (d) The Commissioners Court of Tarrant County may employ special counsel of its own choice, learned in the law, to represent the county in condemnation or eminent domain proceedings, to assist the commissioners court, the county engineer, or other county employees in preparing documents necessary in the acquisition of rights-of-way for state highways, or to assist the county in the acquisition of those rights-of-way. The commissioners court shall set the terms of the employment of special counsel as it considers proper. The commissioners court shall pay the compensation of the special counsel from the road and bridge fond of the county. . TexGov't Code § 44.184(a), (b). ("He [criminal district attorney] shall represent Galveston County in any court in which the county has pending business.” "[He] has all the powers, duties, and privileges ... that are conferred by law on county and district attorneys....”) --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9677410. Public record. Not legal advice.