Untitled Texas Attorney General Opinion ( 1987 )

July 15, 1987
ax .3Lm”rox
xlTo~NEY GSZSERAI.
Honorable Rex N. Leach Opi~+ No. JM-755
District Attorney
Limestone County Courthouse Re: Authority of a county to
200 West state street provide legal counsel for a
Groesbeck, Texas 76642 sheriff in certain legal pro-
ceedings
Dear Mr. Leach:
You ask about the duty of a county to pay for a private attorney
representing a sheriff in certain legal proceedings. You state the
facts which prompt your request as follows:
The district judge issued’ a subpoena to the
sheriff for certain documents related to a Court
of Inquiry called by the court. Some. questions
developed as to whether the proper procedure had
been followed by the district judge in issuing the
subpoena. The district judge then found the
sheriff in contempt for failing to comply with the
subpoena and issued a writ of attachment for the
sheriff ordering him jailed. The Court of Appeals
then granted a vrit of habeas corpus. The
district judge then issued a new subpoena for the
same documents which was finally complied with by
the sheriff.
You relate, without providing details, that the Court of Inquiry
concerned “an incident at, and the operation of, the county jail.”
You note that “[dluring the scenario, the sheriff was represented by
outside legal counsel.”
A sheriff is an officer of the county. Tex. Const. art. V, §23;
cf. Tex. Const . art. V, 824; Attorney General Opinion M-726 (1970).
We have on several occasions considered whether a public body, such as
* county, may provide for legal counsel to defend public officers and
employees subjected to litigation in the course of their public
duties. A general rule can be distilled from our diverse opinions:
Where a Texas governing body believes in good
r‘ faith that the public interest is at stake, even
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Honorable Rex N. Leech - Page 2 (~~-755)
though en officer is sued individually. it is
permissible for the body to employ attorneys to
defend the action. . . . The propriety of such a
step is not made dependent upon the outcome of the
litigation, but upon the bone fides of the govern-
ing body's motive.,
Attorney General Opinion Nos. MW-252 (1980); H-70 (1973); see also
Attorney General Opinion Nos. H-887 (1976); H-544 (1975); M-726
(1970); Attorney General Letter Advisory No. 24 (1973), and the many
ceses cited in those opinions. See also City of Corsicena V. Babb,
290 S.W. 736 judgm't adopted (Tex. Corn'''App. 1927); see generally
Annot. 130 A.L.R. 736 (1941).
The authority of the county to employ attorneys to defend county
officers end employees is limited to situations where the legitimate
interests~of the county -- and not just the personal interests of the
officers or employees -- require the assertion of a vigorous legal
defense on behalf of the county. Attorney General Opinion H-887
(1976). The county may not use public funds when the principal
interest to be defended is a purely private one. Attorney General
Opinion M-726 (1970); cf. City of Del Rio V. Lowe, 111 S.W.2d 1208,
1219 (Tex. Civ. App. -G Antonio 1937). rev'd on other grounds, 122
S.W.2d 191 (Tex. 1938); State V. Averill, 110 S.W.2d 1173 (Tex. Civ.
APP. - San Antonio 1937, writ ref'd).
Thus. the question of the lawfulness of expending public funds
for en attorney to defend the interests of a county in a suit brought
against e public official will always be a question of fact. The
question to be decided is whether or not the suit really is one that
concerns the interests of the county, or whether the benefits provided
by public funds eccrue only to the personal interest of the public
official or employee represented et taxpayers' expense. We do not
make determinations of fact in the process of issuing en opinion; that
responsibility in this kind of question must rest with the seasoned
judgment of the county commissioners who must vote whether to expend
public funds in a particular case. The nature of the proceedings
must, of course, be considered carefully in determining the existence
of a county's legitimate interest.
This does not mean that the county officer must have been right,
or that the suit must be defeated. The county only need determine
that the nublic servant of the countv acted in nood faith within the
scope of an official duty. City Na&onal Bank if Austin V. Presidio
County, 26 S.W. 775 (Tex. Civ. App. 1894); Attorney General Opinion
M-726 (1970).
You suggest that article 332~. V.T.C.S., requires the county to
pay for private counsel for the sheriff. Article 332~ provides:
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Honorable Rex N. Leach - Page 3 (JM-755)
Sec. 1. In this Act, 'nonpolitical entity'
means.any person, firm, corporation, association.
or other private entity, end does not include the
state, a political subdivision of the state, e
city, a special district, or other public entity.
Sec.. 2. In any suit instituted by a non-
political entity against an official or employee
of a county, the district attorney of the district
in which the county is situated or the county
attorney, or both, shell, subject to the provi-
sions contained in Section 3, represent the
official or employee of the county if the suit
involves any act of the official or employee while
in the performance of public duties.
Sec. 3.. If additional counsel is necessary or
proper for an official or employee provided legal
counsel by Section 2 of this Act or if it
reasonably appears that the act complained of may
form the basis for the filing of a criminal charge
against the official or employee, the county
connnissionerscourt shall employ end pay private
counsel.
Sec. 4. Nothing in this Act requires a county
official or employee to accept the legal counsel
provided for him in this Act.
This statute. adopted by the legislature in 1973, is declafatory
of et least a part of the common-law rule referred to above. See
generally Attorney General Letter Advisory No. 24 (1973). We do not
understand the statute to repeal or supplant the common-law rule. At
the least. it strengthens the rule by requiring e county to defend a
public servant in a certain class of cases. As such, it can be
construed to harmonize with the existing common-law rule, Freels v.
Walker, 26 S.W.2d 627, opinion adopted (Tex. Comm'n App. 1930), even
though the statute does not occupy the whole of the ground embraced by
the common-law rule. The statute does not -- and cannot -- repeal the
implied condition that a legitimate interest of the county must be
involved. Attorney General Letter Advisory No. 24 (1973).
1. Section 2 of article 332~ requires the county or district
attorney, or both to defend the public servant, except in certain
cases specified in section .three of the statute. Prior to the
adoption of article 332c, county end district attorneys had no such
duty.
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Honorable Rex N. Leech - Page 4 (JM-755)
Article 332~ simply does not apply to the facts presented in your
request. The imbroglio in which the sheriff became entangled was
rooted in the proceedings of a court of inquiry celled by a district
court judge pursuant to article 51.02 of the Code of Criminal
Procedure. Assuming, solely for the sake of argument, that the
proceedings of a court of inquiry constitute a "suit" within the
meaning of that term as employed in article 332c, it is clear that
such a "suit"'is not within the purview of article 332~. By its plain
terms, the article applies 9 to suits instituted by non-political
entities. A district court manifestly is a political entity, for the
court is an agency of the sovereign, the ultimate political entity.
Isbill V. Stovall. 92 S.W.2d 1067 (Tex. Civ. App. - Eastland 1936, no
writ). A district court judge discharging the duties lawfully
assigned to court is acting for the "political entity." See Ex pate
Lowery, 518 S.W.2d 897 (Tex. Civ. App. - Beaumont 1975, nowrit).
You suggest that article 332~ nevertheless applies because of
certain language in section 3 of the statute. There, the county is
commended to provide private counsel to an officer or employee "if
it reasonably appears that the act complained of may form the basis
for the filing of a criminal charge' against the official or
employee. . . .II You note that in the situation et hand the sheriff
was the subject of a writ of attachment end thus was threatened with
imprisonment for a contempt of the court of inquiry. You ponder
whether the contempt citation end consequent writ of' attachment ?
constituted a criminal charge. You also suggest that the court of
inquiry constituted a criminal investigation of the sheriff.
We need not decide these points because the clear language of the
statute places this entire episode outside of the embit of the
legislature's command that counties furnish legal counsel to public
servants in certain instances. All of the parts of article 332~ must
be reed together, end the whole of the statute must be harmonized with
the paramount purpose of the law. -See 53 Tex. Jur. 2d 5160 (1964) end
cases cited thereunder.
Applying this canon to article 332c, it is simply impossible to
reed the phrase in section 3 -- "if it reasonably appears that the act
complained of may form the basis for the filing of a criminal char2
-- to refer to "ects" other then those specified in a suit instituted
by a non-political entity, es referenced in section 2 of the statute.
To read the language in section 2 to create an independent basis of
authority ~to furnish legal assistance et public expense would be
contrary to both the purpose and tenor of the statute.
Article 332~. like the common-law rule it codifies in part,
belongs to that narrow class of the laws which permits public funds to
be spent for the indirect private benefit of certain persons because
an important public interest predominates. See Tex. Const. art. III,
§§51, 52. The evident policy of article 3%-c, like the connnon-law ?
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Honorable Rex N. Leech - Page 5 UM-755)
rule which we discussed above, is to provide a modicum of repose for
the public servents of the county in the case of suits brought by
private parties. The suits must concern events occurring during the
course of the public servant's performance of public duties within the
scope of the authority of the public office or position. Attorney
General Letter Advisory No. 24 (1973). We suppose that it is not
unknown for such suits, on some occasions, merely to be vexatious, and
perhaps even wholly mischievious. The suits are initiated by persons
whose judgment end motive are sometimes unfathomable. The purely
private decision to sue a public servant is not subject to the
checks-end-balances so much a pert of the nature and functioning of a
political entity in its day-to-day operations. Public servants
subject to suits by private parties for official acts are apt to be
distracted from their duties by the litigation, end concommitant
worries about meeting the costs of a le~galdefense. Fear of boundless
litigation, especially if it proves to be frivolous after e lengthy
end expensive process, may make public servants timid in,the discharge
of their duties. Article 332~ obviously re-enforces the common-law
rule to deal with these problems, to the extent specified by the
legislature end permitted by the constitution.
Accordingly, all of this statute must be reed in light of its
principal, if limited, purpose.
SUMMARY
A county may expend public funds for the
employment of private attorneys to represent
county officials and employees who have been sued
in their official end individual capacities if the
suit involves en action of the official or
employee within the scope of the official's or
employee's authority in the performance of public
duties, and if the county commissioners believe in
good faith that the public interest is et stake.
Whether or not expending public funds to defend
the county official or employee is proper is
always a matter of fact. Article 332c, V.T.C.S.,
which is merely declaratory of a pert of the
common law, end which provides that in suits
initiated by non-political entities county offi-
cials end employees are due legal representation
at public expense does not apply to any of the
incidents of a legal proceeding instituted by a
political entity, including a district court judge
conducting e court of inquiry pursuant to article
52.01 of the Court of Criminal Procedure.
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Honorable Rex N. Leach - Page 6 (~~-755)
Very Itruly your
JIM MATTOX
Attorney General of Texas
MARY KELLER
Executive Assistant Attorney General
JUDGE ZOLLIE STEAKLEY
Special Assistant Attorney General
RICK GILPIN
Chairman, Opinion Comittee
Prepared by Don Bustion
Assistant Attorney General
-,
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