Untitled Texas Attorney General Opinion ( 1988 )

, -
THE ATTORNEY GENERAL
OF TEXAS
'October21, 1988
_
Honorable Carl A. Parker opinion No. JM-968
Chairman
Education Committee Re: Authority of a school dis-
Texas State Senate trict to expend funds to defend
P. 0. Box 12068 a trustee in an action alleging
Austin, Texas 78711 an intentional tort (RQ-1542)
Dear Senator Parker:
You ask our opinion on the following question:
May an independent school district
lawfully expend funds for attorney's fees for
defense of a trustee in a civil suit alleging
an intentional tort against the trustee?
You furnish the following statement of facts in support of
your question:
Circumstances exist in the Huffman I.S.D.
whereby a trustee became embroiled in a
difference of opinion with a teacher. The
teacher has alleged sexual harassment and in
retaliation of the complaints one trustee has
voted against renewal of her contract. Two
lawsuits have been filed, one against the
school district alleging various civil rights
violations, and a private lawsuit by the
former teacher against a trustee alleging an
intentional tort taking place in the parking
lot of the school district following a school
board meeting.
Apparently, the school board of trustees
has undertaken to provide legal counsel for
the trustee in defense of the civil suit
alleging the intentional tort. The trustee
has signed a letter of agreement agreeing to
reimburse the district in the event it is
determined that payments for attorney's fees
in his behalf are not proper.
P. 4925
Honorable Carl A. Parker - Page 2 (JM-968)
An independent school district may retain and pay
attorneys to protect its interests in a lawsuit, even though
the suit is brought against an individual officer or
employee of the district. Educ. Code 5 23.26: Attorney
General Opinion JM-685 (1987); Attorney General Opinion.H-70
(1973); see Stewart v. Newton Indenendent School District,
134 S.W.Zd 429 (Tex. Civ. App. - Beaumont 1939, no 'writ);
c,
a d'n v v' e 51
S.W.2d 826 .(Tex. Civ. App. - San Antonio 1932, writ
dism'd): Arrinaton v. Jones, 191 S.W. 361 (Tex. Civ. App. -
Texarkana 1917, no writ).
The authority of the district to employ attorneys is
limited to those situations where the legitimate interests
of the district, and not merely the personal interests of
the officer, require the assertion of a vigorous legal
defense on behalf of the public interest. Attorney General
Opinions JM-824, JM-685 (1987); H-70 (1973); M Tex.
Const. art. III, 59 50, 51, 52; State v. Aver111 110 S.W.2d
1173 (Tex. Civ. App. - San Antonio 1937, writ re;'d) ; Graves
8 Ho&hens v. Diamond Hill I denendent School District, 243
S.W. 638 (Tex. Civ. ADD. - F&t Worth 1922. no writ). See
ah9’ Citv of C rsicana--v. Babb 290 S.W. 736 (Tex. -Co-%
App. 1927, jud&ent adopted): Citv f Del Rio . Lowe, 111
S.W.2d 1208 (Tex. Civ. APP. - San ktonio 1937), m'd on
other arounds, 122 S.W.Zd 191 (Tex. 1938); Citv National
Dank of Austin v. Presidio County, 26 S.W. 775 (Tex. Civ.
APP. 1894, no writ); Attorney General Opinions NW-252,
NW-157 (1980); H-887 (1976); H-544 (1975); WW-1464 (1962);
Letter Advisory No. 24 (1973).
Thus, the question of the lawfulness of expending
public funds to protect the public interest in a suit
brought against the officer of a school district will always
be a question of fact. Attorney General Opinion JM-824
(1987). The question which the trustees of the district
must decide is whether or not the suit really involves the
interests of the school district or whether the expenditure
of taxpayer funds will accrue solely to the personal benefit
of the officer. This office does not make determinations of
fact in the process of issuing legal opinions: that
responsibility in this kind of question must rest with the
judgment of a majority of the disinterested members of the
school board. &&
We emphasize that in making such a decision, the
trustees do not have to conclude absolutely in advance that
the officer sued is blameless, or that the suit ultimately
will be defeated. && The trustees need only use their
P- 4926
Honorable Carl A. Parker - Page 3 (JM-968)
best judgment to determine based on the information before
them that the actions of the officer were undertaken in good
faith within the scope of an official duty. L See al Q
Attorney General Opinion M-726 (1970). Even when a lawsu:t
contains allegations that seem to place the actions of, .the
officer outside the scope of official -du~ties,a defense at
public expense may still be proper. Such an issue can only
be decided at the trial of the case: standing alone, an
allegation does not prevent the school board from. providing
for the defense of an officer. Attorney General Opinion
JM-824 (1987); See. e.a., Citv of Del Rio, sunra; see also
Attorney General Opinions JR-755 (1987); H-887 (1976); H-544
(1975).
Your request letter indicates that you are concerned
particularly about the application of these general
principles to.a situation involving the defense with public
funds of an officer alleged to have committed an intentional
tort. The general principles discussed. above have been
applied by the courts to permit the defense of a public
officer or employee at taxpayer expense in criminal
prosecutions. Citv f C rsicana Babb, suora; Es
aenerally Annot., 130 :.L.R: 736 (194;;.
SUMMARY
A school district may expend public funds
for the defense of a school trustee in a
private lawsuit alleging an intentional tort
if a majority of the disinterested members of
the school board make a good faith
determination that a defense of the action is
in the public interest. A school district
may not expend public funds to represent the
purely personal interests of an individual
trustee.
~$g$+h
Attorney General of Texas
i¶ARY KELLER
First Assistant Attorney General
p. 4927
,
Honorable Carl A. Parker - Page 4 (JM-968)
mu MCCRBARY
Executive Assistant Attorney General
JUDGE ZOLLIE STEAXLBY
Special Assistant Attorney General -. ".
RICK GILPIN
Chairman, Opinion Committee
Prepared by D. R. Bustion, II
Assistant Attorney General
p. 4928