Can a Texas commissioners court hire its own outside law firm to help redraw county election precincts, or does the county attorney control that choice?

Plain-English summary

Fort Bend County's commissioners court learned it had fallen behind on a legal duty: reviewing and redrawing county election precincts so they stay within the population limits the Election Code sets. The court voted to fix it, allocated money, and wanted to hire an outside law firm of its own choosing to help. The county attorney objected, claiming her office alone had the power to advise the court on redistricting, or to pick the outside firm that would. Representative Gary Gates asked the AG to sort out who controls the hire.

The AG sided with the commissioners court. A commissioners court is the county's principal governing body and its general business and contracting agency. For more than a century, Texas law has recognized that a commissioners court can hire outside attorneys and experts to carry out its constitutional and statutory duties, and it has discretion to choose whom to hire and on what terms. Redrawing election precincts under Chapter 42 of the Election Code is one of those duties.

The county attorney's claim rested on Government Code subsection 45.179(a), which makes the county attorney's "primary duty" to represent the county "in all civil matters pending before the courts." The AG read that statute by its words: it covers civil matters pending before a court. Redistricting is not a court case. The AG explained that a commissioners court, despite the word "court" in its name, is an administrative body that does not generally exercise judicial power, and redistricting is a legislative or quasi-legislative function, not litigation. So a law firm helping the court redistrict is assisting a legislative task, not representing the county in a judicial forum, and the county attorney's exclusive-representation statute does not reach it.

The AG also rejected the idea that Government Code section 41.007, which says a county attorney "on request shall give . . . a written opinion or written advice," locks the court into using the county attorney. That statute imposes a duty on the county attorney; it does not bar the court from hiring outside counsel. On the second question, the AG concluded the county attorney cannot unilaterally contract with a firm of her own choosing for this work, because the commissioners court, not an individual officer, is the county's contracting agency. In the process, the AG overruled older opinions (GA-0074 and JM-1281, among others) to the extent they had read county-attorney representation statutes more broadly.

What this means for you

If you serve on a commissioners court

Based on this opinion, your court may select and contract with an outside law firm of its own choice to help it carry out redistricting duties under Chapter 42 of the Election Code, and that choice does not usurp the county attorney's role. The opinion grounds this in the court's long-recognized implied power to hire attorneys and experts and its status as the county's contracting agency.

If you are a county attorney or district attorney

The opinion reads subsection 45.179(a)'s exclusive-representation language as limited to "civil matters pending before the courts," which does not cover a legislative task like precinct redistricting. It also concludes a county attorney may not unilaterally contract with a firm of her own choosing to assist the commissioners court with that work, and it overrules prior opinions (including GA-0074 and JM-1281) to the extent they conflict.

If you handle county contracting or procurement

The AG reaffirms that the commissioners court "alone has authority to make contracts binding on the county, unless otherwise specifically provided by statute." A note in the opinion adds that the Professional Services Procurement Act does not apply to legal services, and the opinion does not address contingency-fee work.

If you are in a very large county

The opinion flags a limit that did not apply to Fort Bend: in counties with a population over two million, Local Government Code section 89.001(c) means the commissioners court's authority to employ special counsel does not include the power to choose that counsel, and redistricting is not among the functions for which special counsel may be employed there anyway.

Common questions

Q: Can a Texas commissioners court hire its own outside lawyers to help redraw election precincts?
A: Yes. The AG concluded a commissioners court may select and contract with an outside law firm of its own choice to assist with its Chapter 42 redistricting duties without usurping the county attorney.

Q: Doesn't the county attorney have exclusive authority over the county's legal matters?
A: Only within limits. The AG read subsection 45.179(a) to cover "civil matters pending before the courts." Redistricting is a legislative function, not a court case, so it falls outside that exclusive authority.

Q: Why isn't a commissioners court a "court" for this purpose?
A: The AG explained that, despite its name, a commissioners court is an administrative body that does not generally exercise judicial power. Courts and prior opinions have called it "a court in name only."

Q: Can the county attorney instead pick and hire the firm herself?
A: No. The AG concluded the county attorney may not unilaterally contract with a firm of her choice for this work, because the commissioners court is the county's contracting agency.

Q: Does the county attorney's duty to give written advice "on request" change this?
A: No. The AG read Government Code section 41.007 as imposing a duty on the county attorney, not as restricting the court's option to hire outside counsel.

Background and statutory framework

A commissioners court is the county's principal governing body (Comm'rs Ct. of Titus Cnty. v. Agan, 940 S.W.2d 77, 79 (Tex. 1997)), composed of elected commissioners and a county judge (Tex. Const. art. V, §§ 15, 18(b)), exercising the powers conferred by the Constitution and laws plus implied powers necessary to accomplish its duties (City of San Antonio v. City of Boerne, 111 S.W.3d 22, 28 (Tex. 2003)). Other elected county officers hold a protected "sphere" of core duties the court may not usurp (Pritchard & Abbott v. McKenna, 350 S.W.2d 333, 335 (Tex. 1961); Harris Cnty. v. Coats, 607 S.W.3d 359, 377 (Tex. App.—Houston [14th Dist.] 2020, no pet.)), but discretionary duties outside that core may be delegated (Griffin v. Birkman, 266 S.W.3d 189, 197 (Tex. App.—Austin 2008, pet. denied)).

Chapter 42 of the Election Code charges commissioners courts with establishing, reviewing, and redistricting county election precincts, including meeting population requirements (Tex. Elec. Code §§ 42.001–.037, 42.006, 42.031). Texas courts have recognized for over a century that a commissioners court may hire a law firm to help carry out its responsibilities (Guynes v. Galveston Cnty., 861 S.W.2d 861, 863 (Tex. 1993)), an implied power flowing from its authority to manage county business (Adams v. Seagler, 250 S.W. 413 (Tex. 1923); Anderson v. Wood, 152 S.W.2d 1084, 1085 (Tex. 1941)). The court has discretion to choose its method of hiring and the terms of the contract (Guynes, 861 S.W.2d at 864), subject to one limit: the hiring may not usurp another officer's statutory duties (Teal v. State, 230 S.W.3d 427, 432 (Tex. App.—San Antonio 2007, pet. denied)).

The county attorney's duty under Government Code subsection 45.179(a) is to represent the county "in all civil matters pending before the courts." The AG read "court" by its ordinary meaning, a judicial body, and explained that a commissioners court is "an administrative body without substantial judicial functions" that acts as "a court in name only" (Diaz v. Cantu, 123 F.4th 736, 747 (5th Cir. 2024); Daves v. Dallas Cnty., 22 F.4th 522, 537–38 (5th Cir. 2022); Camacho v. Samaniego, 954 S.W.2d 811, 824 (Tex. App.—El Paso 1997, writ denied)). Redistricting "has long been characterized as the exercise of legislative or quasi-legislative power" (Tarrant Cnty. v. Ashmore, 635 S.W.2d 417, 423 (Tex. 1982)), so a firm assisting with it is not representing the county in a judicial forum. The AG distinguished Driscoll v. Harris County Commissioners Court, Guynes, and Cascos as not analyzing the "civil matter pending before the courts" language (Cascos v. Cameron Cnty. Att'y, 319 S.W.3d 205, 227–28 (Tex. App.—Corpus Christi 2010, no pet.)), and read Government Code section 41.007's "on request" language as the court's option, not a restriction (Gibson v. Davis, 236 S.W. 202, 212 (Tex. App.—Galveston 1921, no writ)). On the second question, because the commissioners court "alone has authority to make contracts binding on the county" (Anderson, 152 S.W.2d at 1085), the county attorney may not unilaterally contract with a firm of her own choice for this work. The opinion overrules GA-0074, JM-1281, and similar opinions to the extent inconsistent.

Citations and references

Statutes:
- Tex. Elec. Code ch. 42 — county election precincts, review, and redistricting
- Tex. Gov't Code § 45.179 — Fort Bend County Attorney duties
- Tex. Gov't Code § 41.007 — county attorney written advice on request

Key cases:
- Guynes v. Galveston Cnty., 861 S.W.2d 861 (Tex. 1993) — commissioners court's implied power to contract with attorneys
- Tarrant Cnty. v. Ashmore, 635 S.W.2d 417 (Tex. 1982) — redistricting is a legislative or quasi-legislative function
- Diaz v. Cantu, 123 F.4th 736 (5th Cir. 2024) — commissioners court is "a court in name only"

Source

• Landing page: https://www.texasattorneygeneral.gov/opinions/ken-paxton/kp-0504
• Original PDF: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/2025/kp-0504.pdf

Original opinion text

November 19, 2025

The Honorable Gary Gates
Chair, House Committee on Land and Resource Management
Texas House of Representatives
Post Office Box 2910
Austin, Texas 78768-2910

Opinion No. KP-0504
Re: Commissioners Court authority to select a firm to assist with redrawing precinct lines pursuant to Chapter 42, Texas Elections Code (RQ-0597-KP)

Dear Representative Gates:

You ask about the Fort Bend Commissioners Court's authority to select and contract with a firm to assist it in redrawing the County's election precinct boundaries. You explain that a state representative alerted the County's Commissioners Court in February that it "fail[ed] to fulfill [its] obligation to review and redistrict [election] precincts in accordance with the . . . Election[] Code," resulting in "precincts falling outside the population limits set [by] state law." Request Letter at 1–2. In response, "the Commissioners Court took swift action by voting to redraw the precinct maps and allocating the necessary funds." Id. at 1. A disagreement has arisen, however, between the Commissioners Court and the County Attorney regarding whether the former has "the authority to choose the firm that would assist with redrawing the precincts." Id. Specifically, we understand your reference to a "firm" to concern an outside law firm, and the disagreement stems from the County Attorney's assertion that her office has exclusive authority to advise, or select the law firm to advise, the Commissioners Court with redistricting county election precincts. See id. at 1–2.

On that background, you ask two questions. First, you ask whether "the Commissioners Court [has] the legal authority to select a firm to assist with redistricting county election precincts." Id. at 2. You then ask whether a county attorney may "unilaterally make the decision to contract a firm of their choice, without a formal order from the [c]ommissioners [c]ourt." Id. Consistent with your request, we focus our analysis on Fort Bend County. See id. at 1–2.

Both commissioners courts and other elected county officials exercise power over county affairs.

Your questions highlight the interplay between one particular elected county official, the county attorney, and the commissioners court. See id. The commissioners court serves "as the county's principal governing body," Comm'rs Ct. of Titus Cnty. v. Agan, 940 S.W.2d 77, 79 (Tex. 1997), which consists of elected commissioners and an elected county judge, see TEX. CONST. art. V, §§ 15, 18(b). It "exercise[s] such powers and jurisdiction over all county business, as is conferred by [the Texas] Constitution and the laws of the State." Id. § 18(b). This includes express powers as well as those implied "power[s] necessary to accomplish its assigned duty." City of San Antonio v. City of Boerne, 111 S.W.3d 22, 28 (Tex. 2003). A commissioners court's powers are varied, implicating "aspects of legislative, executive, administrative, and judicial functions." Agan, 940 S.W.2d at 79. Ultimately, the performance of these responsibilities may not be "frustrate[d]" by other elected county officials. See Tex. Att'y Gen. Op. No. KP-0111 (2016) at 4.

But a commissioners court's powers are not the only ones protected by state law. The "management and control of . . . [a] [c]ounty's business affairs" is also shared among the other elected county officials. Pritchard & Abbott v. McKenna, 350 S.W.2d 333, 335 (Tex. 1961). Elected county officials, also "possess[ing] only such powers as are expressly conferred upon them by law or are necessarily implied from the powers so conferred," Tex. Att'y Gen. Op. No. GA-0709 (2009) at 2, maintain a "sphere [of authority] . . . within which the [c]ommissioners [c]ourt may not interfere or usurp." Pritchard & Abbott, 350 S.W.2d at 335. That "sphere . . . consists of the officer's core duties under the Texas Constitution and statutes." Harris Cnty. v. Coats, 607 S.W.3d 359, 377 (Tex. App.—Houston [14th Dist.] 2020, no pet.). Core duties are those that are "exclusively assigned by state law to a particular officer." Tex. Att'y Gen. Op. No. KP-0492 (2025) at 2. Excluded from this sphere are "discretionary duties" that fall outside the core duties, Griffin v. Birkman, 266 S.W.3d 189, 197 (Tex. App.—Austin 2008, pet. denied), to which the commissioners court may delegate to an "appropriate county official," Tex. Att'y Gen. Op. No. KP-0492 (2025) at 2 (quoting Agan, 940 S.W.2d at 80–81). This all generally reduces to the reality that both commissioners courts and other elected county officials are entrusted with powers over county affairs, and each must be able to exercise its respective powers without the other improperly interfering. Cf., e.g., Tex. Att'y Gen. Op. No. KP-0111 (2016) at 3–4.

The commissioners court may employ an outside law firm of its own choice to assist in fulfilling its redistricting duties under Chapter 42 of the Election Code without interfering with or usurping the county attorney's statutory duties.

Some of a commissioners court's powers over county affairs are found in Chapter 42 of the Election Code. As you correctly point out, this chapter tasks commissioners courts with establishing, reviewing, and redistricting county election precincts. See Request Letter at 1–2. See generally TEX. ELEC. CODE §§ 42.001–.037. The chapter imposes various requirements for election precincts, including population requirements. See TEX. ELEC. CODE § 42.006. Commissioners courts are charged with regularly reviewing these precincts for compliance with, among others, the population requirements in section 42.006 so that it can "order the boundary changes necessary for compliance." Id. § 42.031(a); see also id. § 42.031(b) (explaining when a boundary change may be ordered). It is these "obligations" that you tell us the Commissioners Court initially failed to "fulfill" but now seeks law firm assistance to carry out. See Request Letter at 1–2.

The notion that a commissioners court may hire a law firm to assist it in carrying out its responsibilities has been recognized for over a century. See Guynes v. Galveston Cnty., 861 S.W.2d 861, 863 (Tex. 1993); see also, e.g., City Nat. Bank v. Presidio Cnty., 26 S.W. 775, 777 (Tex. App. 1894, no writ). This authority stems from a commissioners court's "implied power to accomplish its constitutional and statutory directives," Tex. Att'y Gen. Op. No. GA-0153 (2004) at 3, consistent with "its authority to control and manage the finances and business affairs of the county," Adams v. Seagler, 250 S.W. 413, 413 (Tex. 1923). See also, e.g., Anderson v. Wood, 152 S.W.2d 1084, 1085 (Tex. 1941) ("[The commissioners court] is the general business and contracting agency of the county, and it alone has authority to make contracts binding on the county, unless otherwise specifically provided by statute."). Indeed, "[a]s the administrative head of county government, a commissioners court also possesses broad implied powers to . . . contract with experts when necessary, including attorneys." Guynes, 861 S.W.2d at 863 (citations omitted); see also Teal v. State, 230 S.W.3d 427, 432 (Tex. App.—San Antonio 2007, pet. denied) (discussing the retention of private counsel). The selection of counsel, of course, is necessarily encompassed by a commissioners court's settled "discretion [to] choose the method of hiring attorneys it deems most beneficial to the [public]" and "set the terms of a contract with outside counsel." Guynes, 861 S.W.2d at 864; see also Teal, 230 S.W.3d at 432.

[Footnote: In counties with a population of more than two million, however, the commissioners court's authority to employ an attorney as special counsel does not come with the power to choose that counsel. TEX. LOC. GOV'T CODE § 89.001(c); see also, e.g., Driscoll v. Harris Cnty. Comm'rs Ct., 688 S.W.2d 569, 582 (Tex. App.—Houston [14th Dist.] 1984, writ ref'd n.r.e.) (recognizing this limitation on commissioners courts' authority). But Fort Bend County does not meet this population threshold. U.S. CENSUS BUREAU (last visited Sept. 15, 2025) (listing the County's population as of the last federal decennial census as 822,779); see also TEX. GOV'T CODE § 311.005(3) (defining "[p]opulation" for statutory construction purposes as "the population shown by the most recent federal decennial census"). Furthermore, even with a qualifying population size, legal assistance for redistricting election precincts is not one of the functions for which a special counsel may be employed. See TEX. LOC. GOV'T CODE § 89.001(b)(1)–(3).]

But there is one exception: A commissioners court's hiring of counsel may not interfere with or usurp the statutory duties of other officials, including the county attorney. See Guynes, 861 S.W.2d at 863–64; see also, e.g., Tex. Att'y Gen. Op. No. KP-0492 (2025) at 6. "[A] commissioners[] court may not delegate the county attorney's duties or employ outside attorneys to the exclusion of the county attorney." Teal, 230 S.W.3d at 432. The retention of an outside law firm to the exclusion of the county attorney for representation in a matter falling within the county attorney's "exclusive domain" would usurp his or her duties. See Guynes, 861 S.W.2d at 864.

This ultimately returns us to the underlying question: whether the commissioners court would usurp the county attorney's statutory duties by hiring a law firm to assist with its redistricting duties under Chapter 42. "The Texas Constitution obligates county attorneys to 'represent the State in all cases in the District and inferior courts in their respective counties,' unless a county is included in a district with a district attorney—in which case their 'respective duties' are to 'be regulated by the Legislature.'" Tex. Att'y Gen. Op. No. KP-0492 (2025) at 3 (quoting TEX. CONST. art. V, § 21). Fort Bend County has both a county attorney and district attorney, TEX. GOV'T CODE §§ 43.181 (district attorney), 45.179 (county attorney), and the Legislature has done nothing to change that representation of the county in "its general legal business" is typically not a prescribed duty of county or district attorneys, Guynes, 861 S.W.2d at 864 (quoting Hill Farm, Inc. v. Hill Cnty., 425 S.W.2d 414, 419 (Tex. App.—Waco 1968, writ granted), aff'd, 436 S.W.2d 320 (Tex. 1969)). Instead, the Government Code makes clear that the county attorney's "primary duty" is "to represent the state, Fort Bend County, and the officials of the county in all civil matters pending before the courts of Fort Bend County and any other courts in which the state, Fort Bend County, or the county officials have matters pending." TEX. GOV'T CODE § 45.179(a). This language, found in similar statutes governing other county attorneys, has been said to create an exclusive right. See Guynes, 861 S.W.2d at 863 n.1 (referencing Harris County's corresponding statute); Cascos v. Cameron Cnty. Att'y, 319 S.W.3d 205, 227–28 (Tex. App.—Corpus Christi 2010, no pet.), abrogated on other grounds by In re State Bd. for Educator Certification, 452 S.W.3d 802 (Tex. 2014) (referencing as much for similar statutes for multiple counties, including Fort Bend County). The County Attorney therefore invokes this statute to support the belief that her office has the exclusive power to advise, or hire outside counsel to advise, the Commissioners Court on redistricting election precincts. See Fort Bend County Attorney Brief at 2, 4, 10, 12. We disagree.

Subsection 45.179(a) must be read "to give effect to the Legislature's intent, 'which we ascertain from the plain meaning of the words used in the statute.'" Brazos Elec. Power Coop., Inc. v. Tex. Comm'n on Env't Quality, 576 S.W.3d 374, 383–84 (Tex. 2019) (quoting Sw. Royalties, Inc. v. Hegar, 500 S.W.3d 400, 404 (Tex. 2016)). That "plain meaning" is "informed by the context in which the enacted text appears," Am. Pearl Grp., L.L.C. v. Nat'l Payment Sys., L.L.C., 715 S.W.3d 383, 387 (Tex. 2025), and we strive to "give effect to all" text without "treat[ing] any statutory language as mere surplusage," State v. Shumake, 199 S.W.3d 279, 287 (Tex. 2006). Undefined terms typically carry their "common, ordinary meaning," which may be determined by dictionaries, "unless a contrary meaning is apparent from the statute's language." Tex. State Bd. of Exam'rs of Marriage & Fam. Therapists v. Tex. Med. Ass'n, 511 S.W.3d 28, 34–35 (Tex. 2017).

It goes without saying that a "civil matter" must be "pending" before a "court[]" to fall within the scope of a county attorney's exclusive authority. TEX. GOV'T CODE § 45.179(a). Though the statute does not define "court," id., that term is commonly understood to mean "a person or body of persons whose task is to hear and submit a decision on cases at law," THE AMERICAN HERITAGE DICTIONARY OF THE ENGLISH LANGUAGE 430 (3d ed. 1992); accord MERRIAM-WEBSTER'S COLLEGIATE DICTIONARY 267 (10th ed. 1997) (same, referencing the "transaction of judicial business"), i.e., "[a]n organ of the government, belonging to the judicial department, whose function is the application of the laws to controversies brought before it and the public administration of justice," BLACK'S LAW DICTIONARY 352 (Deluxe 6th ed. 1990).

To be sure, a commissioners court's power can implicate "aspects of . . . judicial functions." Agan, 940 S.W.2d at 79 (emphasis added). They share in "[t]he judicial power of this State," TEX. CONST. art. V, § 1, and the Legislature has granted them limited contempt authority, TEX. LOC. GOV'T CODE § 81.023. But the foregoing "does not render all actions of a commissioners[] court judicial in character." Camacho v. Samaniego, 954 S.W.2d 811, 824 (Tex. App.—El Paso 1997, writ denied) (emphasis added). Article V, section 1 of the Texas Constitution has long been described as "over-inclusive," and a "commissioners court[] . . . is not generally, if ever, exercising judicial power." Daves v. Dallas Cnty., 22 F.4th 522, 537–38 (5th Cir. 2022); see also, e.g., Scout Energy Mgmt., LLC v. Indian Springs Cattle Co., No. 07-21-00031-CV, 2021 WL 5150995, at *4 (Tex. App.—Amarillo Nov. 5, 2021, no pet.) (mem. op.) (characterizing "the decision to close [a] road and convey title to the land" as "a mere executive decision," rather than "an exercise of any judicial function by the commissioners court"). Ultimately, "the commissioners court is an administrative body without substantial judicial functions" that often acts as "a court in name only." Diaz v. Cantu, 123 F.4th 736, 747 (5th Cir. 2024) (emphases added); accord Hays Cnty. v. Hays Cnty. Water Plan. P'ship, 106 S.W.3d 349, 360 (Tex. App.—Austin 2003, no pet.) ("Although commissioners courts do have the word 'court' in their title, they do not perform the same functions as the courts of the judiciary.").

This reality sits comfortably alongside prior opinions emphasizing the need for judicial proceedings when confronted with statutes requiring representation "in all matters pending before . . . courts." Tex. Att'y Gen. Op. No. JM-198 (1984) at 2–3; accord Tex. Att'y Gen. Op. No. JM-633 (1987) at 6 (same, "all civil matters"); cf. also, e.g., Tex. Att'y Gen. Op. No. M-1030 (1971) at 2–3 (concluding commissioners courts were not governed by legislation pertaining to "[e]very court other than a justice court or municipal court," which spoke to those "exercising strictly judicial powers"). Several appellate courts have observed similarly. Cf., e.g., Holmes v. Eckels, 731 S.W.2d 101, 103 (Tex. App.—Houston [1st Dist.] 1987, writ ref'd n.r.e.) (explaining the Legislature "[c]learly" assigned the "prosecution of civil suits in Harris County to the county attorney" under a similar statute); A.B.C. Rendering, Inc. v. State, 342 S.W.2d 345, 347–48 (Tex. App.—Houston 1961, no writ) (acknowledging representation in "civil proceedings").

Moreover, a commissioners court does not act in a judicial capacity when fulfilling its redistricting duties under Chapter 42 of the Election Code. Redistricting has long been characterized "as the exercise of legislative or quasi-legislative power." Tarrant Cnty. v. Ashmore, 635 S.W.2d 417, 423 (Tex. 1982); see also, e.g., Petteway v. Galveston Cnty., No. 3:22-CV-00057, 2023 WL 3452065, at 4 (S.D. Tex. May 15, 2023); Concerned Citizens for Equal v. McDonald, 863 F. Supp. 393, 394–95 & n.6 (E.D. Tex. 1994); Tex. Att'y Gen. Op. No. GA-0348 (2005) at 4. For good reason too: Redistricting does not bear the hallmarks of a judicial undertaking, i.e., "ascertaining facts against which to apply the law for purposes of resolving a legal dispute" or "litigation between parties requiring investigation into facts and application of law to them." Scout Energy Mgmt., 2021 WL 5150995, at 4. It follows that the law firm you describe would be assisting with the commissioners court's legislative function under Chapter 42, not representing the commissioners court in a judicial forum, and requiring the county attorney's involvement under the guise of subsection 45.179(a) would serve only to frustrate the commissioner court's authority, not vice versa. See Guynes, 861 S.W.2d at 864; Tex. Att'y Gen. Op. No. GA-0153 (2004) at 9; see also Cascos, 319 S.W.3d at 230–31.

The Fort Bend County Attorney, as well the Harris County Attorney, apply cases like Driscoll v. Harris County Commissioners Court too broadly. Fort Bend County Attorney Brief at 5–6; Harris County Attorney Brief at 3. Driscoll sought to harmonize a statute that expressly required county attorney input on specified brands of outside-counsel employment, a provision now contained in Local Government Code section 89.001, which has no bearing on your request, with another provision that permitted the employment of private counsel on the same subject matter. 688 S.W.2d at 579–82. Unsurprisingly, the court held that the county attorney's express role in this scheme could not be ignored. Id. at 582.

Cases like Guynes and Cascos prove similarly unavailing. Contra Harris County Attorney Brief at 3–4. Neither purported to analyze the breadth of "civil matter pending before the courts," whether in subsection 45.179(a) or similar statutes, and instead highlighted that jurisdiction-specific statutes mark the boundary of county attorneys' representative rights. See Guynes, 861 S.W.2d at 862–63 & n.1; Cascos, 319 S.W.3d at 227–28. Even more, Guynes observed that county and district attorneys are not ordinarily charged with "represent[ing] the county in its general legal business" before confirming that the commissioners court could validly "employ counsel to advise it concerning the affairs of the county." 861 S.W.2d at 864.

Nor does section 41.007 of the Government Code prevent a commissioners court from seeking outside legal counsel in the situation you describe. Under that provision, "[a] . . . county attorney, on request, shall give to a county or precinct official of his . . . county a written opinion or written advice relating to the official duties of that official." TEX. GOV'T CODE § 41.007 (emphasis added). This "impose[s] a duty upon the county . . . attorney[]" rather than "a restriction upon the commissioners[] court in the employment of attorneys to advise and render services . . . in important matters coming before it for its consideration." Gibson v. Davis, 236 S.W. 202, 212 (Tex. App.—Galveston 1921, no writ) (construing the predecessor of section 41.007, which had the similar "request" language). The words "on request" presents a commissioners court with "the option of utilizing the [c]ounty [a]ttorney's [o]ffice." Cascos, 319 S.W.3d at 231 (emphasis added). As such, section 41.007 neither provides exclusive authority to a county attorney to provide legal advice nor bars the use of outside legal counsel to provide such advice. See Tex. Att'y Gen. Op. No. GA-0153 (2004) at 5; see also Cascos, 319 S.W.3d at 232.

The County Attorney may not unilaterally contract with a law firm of her choice to "assist" with the Commissioners Court's redistricting duties under the Election Code.

Your second question queries whether the County Attorney may unilaterally contract with an outside law firm of her own choosing to assist with the Commissioners Court's redistricting duties under the Election Code. Request Letter at 2. A commissioners court "is the general business and contracting agency of the county, and it alone has authority to make contracts binding on the county, unless otherwise specifically provided by statute." Anderson, 152 S.W.2d at 1085. Again, this includes "the authority to contract with experts when necessary, including attorneys," Guynes, 861 S.W.2d at 863, which inherently includes the discretion of who to contract with, see Anderson, 152 S.W.2d at 1085. A county official, on the other hand, "has no authority to make contracts that are binding on the county, except where he is specially so authorized to do [so] by statute." Id.

The County Attorney appears to suggest that her office's hiring authority provides unilateral authority to contract with a firm of her own choosing to assist with the redistricting duties. See Fort Bend County Attorney Brief at 11–12. We understand this argument to presume that the exclusive authority under subsection 45.179(a) applies. See id. As explained earlier, however, that is incorrect. See supra pp. 3–6. The Commissioners Court may select and contract with an outside law firm to assist it with its redistricting duties under Chapter 42, id., and the County Attorney may not unilaterally contract with a law firm of her choice to "assist" with the Commissioners Court's statutory obligation.

[Footnote: Even more, we note that a county attorney's hiring authority is not generally unilateral. See, e.g., TEX. GOV'T CODE § 45.179(h) (predicating a county attorney's appointment of assistants on commissioners court approval).]

[Footnote: To the extent your request references the Professional Services Procurement Act, see Request Letter at 2, we note that it does not apply to legal services, TEX. GOV'T CODE § 2254.002(2) (defining "[p]rofessional services"). Furthermore, we do not read you request to implicate contingency-fee work and offer no discussion of the associated statutory framework. See generally TEX. GOV'T CODE §§ 2254.101–.110.]

S U M M A R Y

The Fort Bend Commissioners Court may hire an outside law firm of its own choice to assist it in fulfilling its redistricting duties under Chapter 42 of the Election Code without interfering with or usurping the Fort Bend County Attorney's statutory duties. The County Attorney may not unilaterally contract with an outside law firm of her choice to assist the Commissioners Court in carrying out its redistricting duties under Chapter 42 of the Election Code.

Very truly yours,

KEN PAXTON
Attorney General of Texas

BRENT WEBSTER, First Assistant Attorney General
LESLEY FRENCH, Chief of Staff
D. FORREST BRUMBAUGH, Deputy Attorney General for Legal Counsel
JOSHUA C. FIVESON, Chair, Opinion Committee
AMANDA K. ROMENESKO, Assistant Attorney General, Opinion Committee