Untitled Texas Attorney General Opinion ( 2003 )

ATTORNEY GENERAL OF TEXAS
GREG ABBOTT
April 23,2003
The Honorable Will Hartnett Opinion No. GA-0062
Chair, Committee on Judicial Affairs
Texas House of Representatives Re: Whether a school district may pay attorneys’
P. 0. Box 2910 fees to a non-prevailing party in litigation
Austin, Texas 78768-2910 (RQ-0002-GA)
Dear Representative Hartnett:
Your predecessor asked whether a school district that prevailed in a whistle-blower suit in
both the original suit and appeal may pay legal fees to the law firm that represented the non-
prevailing employee. As your predecessor described the situation, the school district incurred no
liability, and thus the employee had no claim on the district.*
We note as a preliminary matter that in certain circumstances the common law permits a
governmental body to pay a public employee’s legal expenses to defend against a suit brought for
actions the employee took as part of his official duties. See, e.g., Tex. Att’y Gen. Op. Nos. DM-488
(1998) at 2, JM-968 (1988) at 2, H-887 (1976) at 2-4. However, no precedent suggests that a public
employee who unsuccessfully sues his employer may avail himself of this doctrine.
Article III, section 52(a) of the Texas Constitution provides in relevant part:
Except as otherwise provided by this section, the Legislature
shall have no power to authorize any county, city, town, or other
political corporation or subdivision of the state . . . to grant public
money or thing of value in aid of, or to any individual, association or
corporation whatsoever . . . .
TEX. CONST.art. III, 4 52(a).
‘See Letter from Honorable Senfi-onia Thompson, Chair, Committee on Judicial Affairs, Texas House of
Representatives, to Honorable John Cornyn, Texas Attorney General (Nov. 26,2002) (on file with Opinion Committee)
[hereinafter Request Letter].
The Honorable Will Hartnett - Page 2 (GA-0062)
It is well settled that when a governmental entity is not liable on a claim, the payment of that
claim constitutes “a pure gift or donation” and violates the constitution. Tompkins v. Williams, 62
S.W.2d 70, 71 (Tex. Comm’n App. 1933, judgm’t adopted); accord State v. City of Austin, 331
S.W.dd 737,742 (Tex. 1960). The situation your predecessor described is one in which the school
district, having won the lawsuit, has no obligation to the employee, and the employee no claim on the
district. No argument has been presented that such a payment serves a public purpose, and we know
of none. Accordingly, the payment of any sum as legal fees for the employee is a direct violation of
article III, section 52(a) of the Texas Constitution.
SUMMARY
A school district’s payment of attorneys’ fees to a non-
prevailing party is a gratuitous donation of public funds in violation of
article III, section 52(a) of the Texas Constitution.
Very truly yours,
Attomeweral of Texas
BARRY R. MCBEE
First Assistant Attorney General
DON R. WILLETT
Deputy Attorney General for Legal Counsel
NANCY S. FULLER
Chair, Opinion Committee
James E. Tourtelott
Assistant Attorney General, Opinion Committee