Untitled Texas Attorney General Opinion ( 2003 )


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  •                                ATTORNEY GENERAL OF TEXAS
    GREG        ABBOTT
    May 21,2003
    Mr. Edward A. Dion                                       Opinion No. GA-0074
    El Paso County Auditor
    500 East San Antonio Street                              Re: Authority of a bail bond board to hire outside
    El Paso, Texas 79901-2407                                legal counsel over the objection of the county
    attorney (RQ-0005GA)
    Dear Mr. Dion:
    You ask a series of questions regarding the El Paso County Bail Bond Board (the “Board”)
    and the county attorney.’ As we understand the facts leading to your request, some members of the
    Board assert that the county attorney has a conflict of interest in both providing legal advice to the
    Board and collecting bond forfeitures. Accordingly, some members of the Board believe that the
    Board should employ outside counsel, and, as you inform us:
    On September 25,2002, the Board approved a motion to hire
    an attorney to represent it, subject to the El Paso County Auditor
    requesting and receiving an attorney general opinion that: (1) it is
    lawful for the Board to hire outside legal counsel over the objection
    of the El Paso County Attorney; and (2) it is lawful for the El Paso
    County Auditor to pay a claim for the outside counsel’s fees under
    such circumstances.
    Request Letter, supra note 1, at 1.
    Your first question is whether the Board is a county entity. The question arises because a
    county attorney has a duty under section 41.007 of the Government Code to “give to a county or
    precinct official of his district or county a written opinion or written advice relating to the official
    duties of that official.” TEX. GOV’T CODE ANN. 4 41.007 (Vernon 1988). As you explain it, “It is
    contended by some members of the Board that the Board is not a ‘county entity,’ and therefore need
    not seek legal advice from the County Attorney.” Request Letter, supra note 1, at 2.
    ‘See Letter from Mr. Edward A. Dion, El Paso County Auditor, to Honorable     Greg Abbott, Texas Attorney
    General (Dec. 4,2002) (on file with Opinion Committee) [hereinafter Request Letter].
    Mr. Edward A. Dion - Page 2                       (GA-0074)
    Pursuant to chapter 1704, subchapter B of the Occupations Code, a county bail bond board
    “is created irt each county with a population of 110,000 or more,” TEX. OCC. CODEANN. 8 1704.05 1
    (Vernon 2003) (emphasis added), and “may be created in a county with a population of fewer than
    110,000.” 
    Id. 5 1704.052
    (emphasis added). The members of such a board include inter alia’such
    county officials as the sheriff or his designee, a district judge of the county with criminal jurisdiction,
    the county judge or a commissioner or designee of the commissioners court, a county court or county
    court-at-law judge with criminal jurisdiction, and the county treasurer. See 
    id. $ 1704.053.
    In Dallas
    County Bail Bond Board v. Mason, 
    773 S.W.2d 586
    (Tex. App.-Dallas 1989, no writ), the Dallas
    court of appeals described a bail bond board as a “legal entity through which the county performs
    its governmental function.” See 
    Mason, 773 S.W.2d at 587
    . Similarly, in Dallas County Bail Bond
    Board v. Stein, 
    771 S.W.2d 577
    (Tex. App.-Dallas 1989, writ denied), the same court described a
    board as a “governmental agent of the county for purposes of regulating the bail bond industry.” See
    Stein, 
    77 1 S.W.2d at 579
    . It is clear, in light of (i) the statutory language indicating that bail bond
    boards are created in each county and function in that county, (ii) the fact that a significant portion
    of the membership of such boards consists of ex ofsicio county officers or their designees, and (iii)
    the specific description of such boards in Mason and Stein as performing county governmental
    functions, that bail bond boards such as the El Paso County Bail Bond Board are county entities.
    Your second question is whether the county attorney’s duties include legal counsel to the
    Board. We have already noted with respect to this question that section 41.007 of the Government
    Code imposes a duty to provide legal advice on a county attorney. The El Paso county attorney is
    further explicitly charged by Government Code section 45.17 1(a) “to represent the state, El Paso
    County, and the officials of El Paso County in all civil matters pending before the courts of ElPaso
    County and any other courts in which the state, the county, or the officials of the county have matters
    pending.” TEX. GOV’T CODE ANN. $45.17 l(a) (Vernon Supp. 2003). These provisions charge the
    El Paso county attorney with the legal representation of the county and its officials, which, as we
    noted in answer to your first question, specifically includes the Board.
    It has been suggested, however, that section 1704.101(8) of the Occupations Code, which
    empowers the Board to “employ persons necessary to assist in board functions,” TEX. OCC. CODE
    ANN. 5 1704.101(8) (Vernon 2003)’ gives the Board the authority to hire outside legal counsel to
    provide it advice. It is well-established law in Texas that an officer cannot be ousted from his legal
    duties. In TerreZZ v. Greene, 3 
    1 S.W. 63
    1 (Tex. 1895)’ the Tar-rant County commissioners sued the
    county treasurer on his bond and employed a private attorney for this purpose. The county attorney
    asserted that the duty to prosecute the suit was his, and the Texas Supreme Court agreed: “While
    the commissioners’ court might employ counsel to assist the county attorney in the performance of
    this duty, it had not the authority under the law to displace him from his position and rightful
    authority under the law as an officer of that county.” 
    Terre& 31 S.W. at 633
    . Similarly, in Jones
    v. Veltmann, 
    171 S.W. 287
    (Tex. Civ. App.-San Antonio 1914, writ ref’d), the San Antonio appeals
    court held that the county attorney had a duty to provide legal advice to the county: “It was . . . the
    duty of the county attorney to advise the county judge and commissioners’ court in regard . . . to all
    county matters. There could be no county matters about which advice was required that was ‘not
    contemplated or covered’ by his official duties as county attorney.” 
    VeZtmann, 171 S.W. at 290
    .
    Based upon those authorities and others, this office concluded in Attorney General Opinion JM- 128 1
    Mr. Edward A. Dion - Page 3                     (GA-0074)
    (1990) that the Harris County Commissioners Court could not appoint lawyers to advise the sheriff
    or individual commissioners on their legal duties except in compliance with a statute that gave the
    power to select such counsel to the county attorney. The law “compel[s] the various officials of [a
    county] to obtain representation and advice in all legal matters from the [county] attorney and him
    alone, absent the exceptions provided by [the statute in question].” Tex. Att’y Gen. Op. No. JM-
    1281 (1990) at 6.
    The more recent case of Guynes v. Galveston County, 
    861 S.W.2d 861
    (Tex. 1993) does not
    argue for a contrary result. In that case, the Galveston County Commissioners Court had, with the
    consent of the Galveston County criminal district attorney, created a legal department to advise it.
    The criminal district attorney’s principal role was representing the state in criminal matters, and he
    had “clearly and unequivocally consented to [this] arrangement for handling the county’s’ legal
    affairs.” 
    Guynes, 861 S.W.2d at 864
    . As the supreme court said:
    We are not called on to resolve any actual conflict between the
    Commissioners Court and the Criminal District Attorney, and do not
    address what limitations   might be imposed on the present
    arrangement should the Criminal District Attorney withdraw his
    consent or otherwise object to the business or conduct of the
    Department.
    
    Id. Unlike the
    Galveston County criminal district attorney, however, the El Paso county attorney
    explicitly refuses to consent to the proposal that he be superceded by outside counsel. Further,
    Guynes dealt with a county in which the county attorney’s office had been abolished by statute. See
    
    id. at 862.
    This is not the case in El Paso County. There is a functioning El Paso county attorney
    who cannot be divested of his duties against his will. The power granted the Board to “employ
    persons necessary to assist in board functions, “TEx. OCC.CODEANN. $1704.101(8) (Vernon 2003)’
    is not sufficient to effect such a result.
    We have determined that the Board may not employ outside counsel without the consent of
    the county attorney, and because you have a duty as county auditor to see to the proper expenditure
    of moneys deposited in the county’s general fund, you may not approve the payment of a claim for
    such representation. As you point out, Local Government Code section 112.006(b) requires you to
    “see to the strict enforcement of the law governing county finances,” section 113.064(a) provides
    that a claim “may not be allowed or paid” until you have examined and approved it, and section
    113.065 provides that you may not approve such a claim “unless the claim was incurred as provided
    by law.” TEX. Lot. GOV’TCODEANN. $Q 112.006(b), 113.064(a), 113.065 (Vernon 1999). Section
    1704.101(8) of the Occupations Code does not furnish a basis for the payment of any such claim.
    Your final question returns to the root of the   instant controversy. You ask whether there is
    indeed a conflict of interest when the county attorney    both represents the Board and collects on bond
    forfeitures.   The relevant Texas Disciplinary Rule       of Professional Conduct is Rule 1.06, which
    requires that a lawyer not represent opposing parties     in the same litigation or represent two persons
    in “a substantially related matter” whose interests are   “materially and directly adverse” or reasonably
    Mr. Edward A. Dion - Page 4                     (GA-0074)
    appear “to be or become adversely limited” by such representation. TEX. DISCIPLINARYR. PROF’L
    CONDUCT 1.06(a), (b), reprinted in TEX. GOV’T CODE ANN., tit. 2, subtit. G app. A (Vernon 1988)
    (TEx. STATEBAR R. art. X, 8 9). Insofar as the county attorney represents the state, in whose name
    the action is maintained, in bail bond forfeitures, see TEX. CODE GRIM. PROC. ANN. art. 22.02
    (Vernon 1989), his duty is to obtain favorable results for the state and to collect on the judgment.
    The Board, on the other hand, has no particular interest in any such action. Pursuant to section
    1704.204(b) of the Occupations Code, if a surety fails to pay a final judgment, the funds necessary
    for its satisfaction may be withdrawn from the security posted under section 1704.160 of the same
    code. SeeTEX. OCC. CODEANN. $8 1704.160,1704.204(b) (Vernon 2003). However, in such event,
    section 1704.206 of the Occupations Code requires the surety to replenish the funds in question. See
    
    id. 8 1704.206.
    Accordingly, the Board is not materially disadvantaged when the county attorney
    prosecutes a bond forfeiture action.
    Even if it were possible for a county attorney’s two governmental responsibilities to conflict,
    the Texas Supreme Court has recognized that such conflicts are not to be regarded in the same
    manner as conflicts of interest in the representation of private parties. In Public Utility Commission
    of Texas v. Gofer, 
    754 S.W.2d 121
    (Tex. 1988)’ the supreme court held that the attorney general
    could not be removed from representing one of two adverse state agencies even when they were
    directly on either side of the docket. See 
    Gofer, 754 S.W.2d at 125
    . The court did not decide, in that
    instance, that there was no conflict, but held that the attorney general was directed by statute to take
    these opposing roles and that the resolution of any such conflict, like its creation, was a matter for
    the legislature. See 
    id. at 125-26.
    Mr. Edward A. Dion - Page 5                  (GA-0074)
    SUMMARY
    The El Paso County Bail Bond Board is a county entity.           .
    Government Code section 41.007 imposes a duty on the El Paso
    county attorney to provide legal counsel to the Board. See TEX.
    GOV’TCODEANN. 5 41.007 (Vernon 1988). The Board may not seek
    outside legal counsel without the consent of the county attorney, and
    the El Paso county auditor may not pay any claim for such outside
    representation.  There is no inherent conflict of interest in the dual
    roles of the county attorney in collecting bail bond forfeiture
    judgments and advising the Board.
    Very truly yours,
    BARRY R. MCBEE
    First Assistant Attorney General
    DON R. WJLLETT
    Deputy Attorney General for Legal Counsel
    NANCY S. FULLER
    Chair, Opinion Committee
    James E. Tourtelott
    Assistant Attorney General, Opinion Committee