Untitled Texas Attorney General Opinion ( 2010 )

ATTORNEY GENERAL OF TEXAS
GREG ABBOTT
November 4,2010
The Honorable Florence Shapiro Opinion No. GA-0816
Chair, Committee on Education
Texas State Senate Re: Authority of the Dallas County Commissioners
Post Office Box 12068 Court to retain independent legal counsel ill
Austin, Texas 78711-2068 particular circumstances (RQ-0870-GA)
Ms. Virginia Porter
Dallas County Auditor
509 Main Street, Suite 407
Dallas, Texas 75202
Dear Senator Shapiro and Ms. Porter:
You both ask questions about the authority of the Dallas County Criminal District Attorney
to represent the County in civil matters and how that authority corresponds with the Dallas County
Commissioners Court's authority to retain independent legal counsel in particular circumstances.'
The two sets of questions together require us to analyze the following three subjects: (l) the division
between the Dallas County Commissioners' authority to retain counsel and the Dallas County
Criminal District Attorney's authority to represent Dallas County in civil matters and which county
official or officials have the authority to select special counsel to represent the County; (2) whether
conflict of interest or a statutory bar prohibits the Criminal District Attorney from performing his
function under that section; and (3) the lawfulness of contracts entered into by the Dallas County
Commissioners Court for employment of special counsel. 2 We will address these issues seriatim.
I. The Division of Authority Between the Dallas County Commissioners Court and the
Criminal District Attorney with Regard to Civil Matters
Section 44.157 of the Government Code outlines the duties specific to the Dallas County
Criminal District Attorney and confers broad authority over criminal matters and a duty to represent
the state in criminal matters in Dallas County, except where that duty is assigned elsewhere by
statute. TEX. GOV'T CODE ANN. § 44.1 57(a)-(b) (West 2004). Notably, that section does not confer
any authority to represent the County in civil matters. Id. In analyzing a similar statute specific to
1See Shapiro Request Letter at 1; Porter Request Letter at 1 (available at http://www.texasattorueygeneral.gov).
'We understand all of the questions to relate to Dallas County. We limit our answers accordingly.
The Honorable Florence Shapiro - Page 2 (GA-08l6)
Ms. Virginia Porter
the Galveston County Criminal District Attorney, the Texas Supreme Court provided the following
explanation:
[W]e understand section 44.184 to impose a duty on the Criminal
District Attorney to represent the county if requested, but not to
deprive the Commissioners Court of the option of availing itself of
the advice of other counsel when the legal matter to be addressed is
not one within the Criminal District Attorney's exclusive domain.
Guynes v. Galveston Cnty., 861 S.W.2d 861, 864 (Tex. 1993). Indeed, courts have "upheld the
power of a commissioners court to hire counsel to assist it or other officials in carrying out their
responsibilities so long as the statutory duties of other county officials are not thereby usurped." Id
at 863.
While the Legislature has expressly authorized the "commissioners court of a county
with a population of more than 1.25 million [to] employ an attorney as special counsel ... to
... represent the county in any suit brought by or against the county," TEx. Loc. GOV'TCODEANN.
§ 89.001(a}-(b) (West 2008), it has also prescribed the method for selection of special counsel:
If the county does not have a county attorney, the district attorney or
criminal district attorney shall select the special counsel. The
selecting officer shall determine the terms and duration of
employment of the special counsel, subject to the court's approval.
Id. § 89.001(c) (emphasis added).3
When interpreting statutes such as this, we ascertain and give effect to the Legislature's intent
as expressed by the statute's language. City of Rockwall v. Hughes, 246 S.W.3d 621,625 (Tex.
2008). Where the text is clear, it is determinative of the Legislature's intent. Entergy Gu!fStates,
Inc. v. Summers, 282 S.W.3d 433,437 (Tex. 2009). Based on the plain language of section 89.001,
while the commissioner's court has the authority to determine whether to pursue or defend a claim
in court, it is for the criminal district attorney to "select the special counsel." TEX. LOc. GOV'T CODE
ANN. § 89.001 (West 2008); see also Driscoll v. Harris Cnty. Comm'rs Ct., 688 S.W.2d 569, 573
(Tex. App.-Houston [14th Dist.] 1984, writ refd n.r.e.) (applying predecessor to section 89.001,
and finding that, "if there was no county attorney, then the district attorney or criminal district
attorney was to participate in the process of employing special counsel"). Thus, we conclude that
Local Government Code section 89.001 designates the Dallas County Criminal District Attorney as
the officer authorized to select special counsel to represent the County in a suit brought by or against
the County.
'Dallas County does not have a county attorney, but "[tlhe criminal district attorney has all the powers, duties,
and privileges in Dallas County that are conferred by law on county and district attorneys in the various counties and
districts." TEx. GOV'T CODE ANN. § 44.157(b) (West 2004).
The Honorable Florence Shapiro - Page 3 (GA-0816)
Ms. Virginia Porter
II. Effect of Statutory Bar or Conflict
Senator Shapiro asks whether the Dallas County Criminal District Attorney is "precluded
from representing Dallas County in civil matters" because he is a state prosecutor as defined
in section 41.006 of the Government Code. Shapiro Request Letter at 2. TEx. GOY'T CODE ANN.
§ 46.001(3) (West Supp. 2010). We find nothing in chapter 46 that expressly precludes the Dallas
County Criminal District Attorney from representing the County in civil matters. Fnrthermore, we
note that other officials listed as state prosecutors in section 46.002 are authorized to represent their
respective counties in all matters pending before the conrts of their jurisdiction, not just criminal
matters. See, e.g., id. §§ 45.244 (West 2004), 46.002(3)(West Supp. 2010). Thus, the fact that the
Dallas County Criminal District Attorney is defined as a state prosecutor in chapter 46 of the
Government Code does not preclude him from representing the county in civil matters.
Senator Shapiro also asks whether the Dallas County Criminal District Attorney's authority
to select a special counsel changes "where a conflict of interest exists for the District Attorney."
Shapiro Request Letter at 1. In enacting section 89.001, the Legislature is fairly "presumed to have
enacted [it] ... with complete knowledge of the existing law and with reference to it." Acker v. Tex.
Water Comm 'n, 790 S.W.2d 299,301 (Tex. 1990). The Legislature requires that criminal district
attorneys be lawyers subject to the State Bar's ethical rules. See TEx. GOy'T CODE ANN. § 41.001
(West 2004) (requiring district attorneys to be licensed attorneys); id. § 81.071 (subjecting licensed
attorneys to the disciplinary jurisdiction ofthe state supreme conrt and state bar). Thus, when the
Legislature enacted section 89.001 in 1987 it surely anticipated that the county or district attorney
in the populous counties to which that provision applied would be subject to ethical constraints,
including conflict of interest rules. Accordingly, we believe that a conrt construing section 89.001
would likely find that a criminal district attorney could not select counsel for a commissioners conrt
where he or she is actually laboring under an ethical conflict in making that selection.'
III. Lawfulness of Contract Entered into by a Commissioners Court Without Prior
Approval of the Criminal District Attorney
Ms. Porter asks whether a contract for private "counsel representing the County negotiated
by Dallas County's Commissioners Conrt, without approval of the District Attorney, is lawfully
made or null and void.,,5 Porter Request Letter at 1. We note at the outset that this office does not
'This opinion does not address any pending accusation of conflict ofinterest. See Tex. Att'y Gen. Op. No. GA-
0557 (2007) at 3 (noting that discussing a particular disciplinary violation is beyond the scope of the opinion process).
The question whether a conflict exists is for the Crhninal District Attorney and the Conunissioners Court to negotiate
in the first instance and for an appropriate court to the extent agreement cannot be reached. See, e.g., TEx. CODE CRIM.
PROC. ANN. art. 2.07 (West 2005) (authorizing the 'Judge ofthe court" in which the district attorney represents the state
to appoint "any competent attorney to perform the duties of the office" where the district attorney is "disqualified" or
"unable to perform").
'We assume that the representation Ms. Porter is concerned about falls within the parameters of subsection
89.001(b) ofthe Local Government Code.
The Honorable Florence Shapiro - Page 4 (GA-0816)
Ms. Virginia Porter
approve, review, or comment on the terms of a particular contract in the opinion process. Tex. Att'y
Gen. Op. No. GA -074 3 (2009) at 1-2. Therefore, a determination as to whether a particular contract
is lawful or void is outside the scope of the opinion process. Id. at 2. However, we can address
general legal principles that may be relevant to whether a contract is permitted under the law. Id.
As noted above, a commissioners court has the authority to retain counsel for the purpose of
rendering advice and counsel. There is no statutory requirement that the criminal district attorney
endorse such a contract in order for it to be valid. However, in counties subject to section 89.001
of the Local Govemment Code, where the engagement goes further and includes authorization to
"represent the county in any suit brought by or against the county," the engagement is to be made
by the county, district, or criminal district attorney. An engagement made in violation of this
requirement could be ratified or voided at his or her election, subject to the possibility of a disabling
conflict or other disability detailed above, in which case the issue would be resolved by an
appropriate civil court.
The Honorable Florence Shapiro - Page 5 (GA-0816)
Ms. Virginia Porter
SUMMARY
Although the Dallas County Criminal District Attorney has
broad authority over most criminal matters and a duty to represent the
state in those matters in Dallas County, he does not have a duty to
represent Dallas County in all civil matters. However, the Dallas
County Criminal District Attorney does have the power to select
counsel and to determine the terms and duration of the engagement
where the representation will include filing or defending a suit by or
against the County.
While the Dallas County Criminal District Attorney is not
barred from exercising this or any other power on account of his
status as a state prosecutor under the statutory provision defining and
constraining that office, he is subject to ethical rules governing
conflicts of interest that could preclude him from selecting counsel.
Whether such a conflict exists is a matter for the Criminal District
Attorney and the County Commissioners to determine in the first
instance and, barring agreement, as an ancillary matter for the civil
court.
DANIEL T. HODGE
First Assistant Attorney General
DAVID J. SCHENCK
Deputy Attorney General for Legal Counsel
NANCY S. FULLER
Chair, Opinion Committee
Virginia K. Hoelscher
Assistant Attorney General, Opinion Committee