THE .ATTI-R~~~~~ESERAL
A
February 19, 1987
Honorable Mike Driscoll Opinion No. JM-633
Aarris County Attorney
1001 Preston, Suite 634 Re: Whether the Earris County
Eouston, Texas 77002 Attorney is authorized or required
to represent or advise the sheriff
in certain cases
Dear Mr. Driscoll:
You advise this office that the following questions have been
prompted by the Rarris County Sheriff’s Department Civil Service
CoomIssion seeking advice from your office regarding its official
duties and a case pending before it.
1. Is the Barris County Attorney authorized or
required to advise members of the Barris County
Sheriff’s Department Civil Service Commission in
regard to their official duties?
2. Is the Earris County Attorney required to
advise the Earris County Sheriff’s Department
Civil Service Commission in regard to cases
pending before it?
3. Is the Bards County Attorney authorized or
required to represent the sheriff at hearings
before the Harris County Sheriff’s Department
Civil Service Commission?
The Earris County Sheriff’s Department Civil Service Cormnfssion
was created pursuant to article 2372h-8, V.T.C.S. The commission is
composed of three members having the authority to “make. publish. and
enforce rules” relating to personnel matters within the sheriff’s
department. See V.T.C.S. art. 2372h-8, 554, 6(a). Consequently, we
conclude thatthe Rarris County Sheriff’s Department Civil Service
Cmission is an administrative agency of the county. Its powers are
those expressly granted by the legislature, together with those
necessarily implied from the authority conferred or duties imposed.
See
- Stauffer V. City of San Antonio, 344 S.W.2d 158 (Tex. 1961).
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Eooorable Kike Driscoll - Page 2 (JM-633)
Moreover, it is apparent from the reading of the statute that
each member is a “public official” of Barris County. The members, as
individuals and as a body, exercise a sovereign function of goveroment
far the benefit of the oublic largely independent of others’ control.
See Aldine Iodependent’School District v: Standley. 280 S.W.2d 570
(Tcx. 1955); see also Northwestern National Life Insurance Co. V.
Black, 383 S.W.2d 806 (Tax. Civ. App. - Texarkaoa 1964. writ rcf’d
n.r.e.‘). Once an individual is aovointed to the commission, he is
entitled to serve a two year term ‘independent of the control of the
sheriff or other appointing officials. V.T.C.S. art. 2372h-8, 04(b).
Tou first ask whether the Rarris County Attorney Is authorized or
required to advise members of the commission in regards to their
official duties. We believe that the county attorney is required.
under section 41.007 of the Government Code, to give written advice,
(upon request) to members of the commission. -See Govt. Code 541.007.
Section 41.007 provides in part:
A district or county attorney, on request,
shall 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. (Emphasis added).
Govt. Code 141.007. Consequently, section 41.007 is dlspositive of
your first question requiring the county attorney to give written
advice to members of the commission in regard to their official
duties.
IO your second question you ask vhether the county attorney is
required to advise the commission in regard to cases pending before
it. We understand that the word “case” refers to a disciplinary or
grievance proceeding before the commissioo. See Earris County
Sheriff’s Department Civil Service Regulations. Rules 12. 13 (1982).
In these administrative proceedings before the commisslon. the sheriff
is ao adverse party to the employee instituting the appropriate
proceeding. See Id. Rule 2.22 (Defioitioo of Hearing). This poses a
possible conflict between the county attorney’s duty to represent the
sheriff and his duty to advise the commissioo.
Article V. section 21, of the Texas Constitution provides in
pertioaot part:
A county attorney, for counties in which there
is not a resident criminal district attorney.
shall be elected by the qualified voters of each
county, who shall be commissioned by the Governor,
and hold his office for the term of four years.
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gooorable Mike Driscoll - Page 3 (JM-633)
In case of vacancy the comissiooers court of the
county shall have the power to appoint a county
attorney until the oext general election. The
county attorneys shall represent the state lo all
cases in the district and inferior courts in their
respective counties; but if any county shall be
included in a district In which there shall be a
district attorney, the respective duties of
district attorneys and county attorneys shall in
such counties be regulated by the legislature.
l’he legislature may provide for the election of
district attorneys in such districts, as may be
deemed necessary. and make provision for the
compensation of district attorneys and county
attorneys. District attorreys shall hold office
for a term of four years, and until their
succeesors have qualified. As amended Nov. 2,
1954.
Bards County is ooe of the counties having both a county
attorney and a district attorney. ‘fhus. the legislature is authorized
to regulate the duties of the county attorney in Harris County. ‘fhe
legislature has defined the duties of the Harris County Attorney.
It is the primary duty of the county attorney
. .
in Ear&3 County or nis assistants to- represent
the state, Rarrls County, sod the officials of
Fiarris County lo all civil matters pending before
the courts of Harris County and any other courts
in which the state, the county, or the officials
of the county have matters pending. The county
attorney shall represent the Harris County Flood
Control District and perform the other duties
Imposed by this section without any additional
fee, compensation, or prerequisite other thao that
paid by Harris County out of its officers’ salary
fund. (Emphasis added).
Govt. Code 145.201.
You have informed us that the sheriff often requests the advice
of the county attorney regarding the future or prior termination of an
employee who may appeal or has appealed his dismissal to the com-
mission. At the same time, the commission may seek advice regarding
its statutory powers and duties and how these pavers may be exercised
in a particular case. The conflict may,also arise when the comsission
may seek advice where the sheriff disagrees with Its ruling.
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-
Eooorable Mike Driscoll - Page 4 (JM-633)
Section 45.201 of the Government Code gives the county attorney
authority to represent the sheriff in court. The provisions also give
the county attorney the authority to represent the co~lssloo -in
court.
IO Hill v. Texas Water Quality Board, 568 S.W.Zd 738 (Ter. Civ.
APP. - Austin 1978. writ ref’d o.r.e.), the court in addressing the
authority vested in the Attorney General of Texas under the Texas
Constitution, article IV, section 22, and county and district
attorneys under the Texas Constitution , article V, section 21 stated:
Thus, either the Attorney General or a county
or district attorney may represent the State in a
particular situatioo, but these are the only
choices, whichever official represents the State
exercises exclusive authority and If services
of other lawyers are utilized, they must be
‘lo subordination’ to his authority. (Emphasis
supplied).
IO Attorney Geoeral Opinion J’M-28 (1983). after citing Hill v.
Texas Water Quality Board vith approval for the foregoing proposition.
the matter of the attorney general representing parties with
conflicting interests was addressed:
You also ask whether the .attorney general is
prohibited from representing the office of the
public utility counsel in court where the Public
utility colmsission* also represented by the
attorney general. is ao adverse party. We have
been unable to find a coostitutlooal provision
which would prevent the attorney general from
representing opposing parties In a lawsuit. The
attorney general has a duty under article IV,
section 22, to represent the state in the supreme
court. Where two state agencies are 00 opposfte
sides of a lavsuit, the attorney general is
required to represent both agencies. IO at least
one case. the attorney geoeral and three assistant
attorneys general were counsel of record for one
agency. while another assistant attorney general
was counsel of record for the opposing party.
Texas National Guard Armory Board v. McCrav. 126
S.W.Zd 627 (Tex. 1939).
. . . .
Article 6252-26, V.T.C.S., authorizes the
attorney general to defend officers and employees
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Eooorable Mike Drlscoll - Page 5 (JM-633)
of the state against certain kinds of lawsuits
arisiog out of acts or omissions by that person in
the scope of his office or employment. Section
3(a) of article 6252-26 provides in part:
It is not a conflict of interest for the
attorney geoeral to defend a person or estate
under this Act and also to prosecute a legal
action against that person or estate as may be
required or authorized by law if differeot
assistant attorneys general are assigned the
responsibility for each action.
Thus, while the attorney general defends an
individual for actions undertaken within the scope
of his state office or employment, he may at the
same time sue that person. as long as different
assistant attorneys general are assigned to each
action.
We have been unable to find a constftutiooal provision which
would prevent the county attorney from representing any of the parties
falling within the ambit of his responsibilities heretofore outlined.
Thus * the fact that the Rarris County Sheriff's Department Civil
Service Commissiou may be in an adverse positioo to a party appearing
before the commission does not relieve the county attorney of his
obligation to advise the commission in regard to cases pending before
it.
In the lveot that it is deemed advisable to employ private
counsel, we find the opinion in Driscoll v. Earris County Commis-
sioners Court, 680 S.W.2d 569 (Tex. App. - Houston 114th Dist.] 1984,
writ ref'd 0.r.e.) to be controlling. After recognizing the duty
imposed on the Harris County Attorney to represent Harris County, its
offices and officials, the court held the employment of private
counsel must be in accordance with article 2371~. V.T.C.S.. which
states that
special couosel shall be named by the county
attorney . . . and such employment shall be made
for such time and on such terms as said county
attorney . . . may deem proper and expedient
subject to the approval of the commissioners
court.
You ask vhether the Earris County Attorney is authorized or
required to represent the sheriff at hearings before the Harris County
Sheriff's Department Civil Service Commissioo. As noted above, the
county attorney has the primary duty to
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Eonorable Mike Driscoll - Page 6 (JM-633)
represent the state, Aarris County, and the
officials of Rarris County in all civil matters
pending before the courts of Earris County aod any
other courts in which the state, the county, or
the officials of the county have matters pending.
Govt. Code 145.201. It would appear that the county attorney is only
required to represent an official in a court proceeding. However,
ve do not believe that the county attorney is prohibited from
representing the sheriff before the Earris County Sheriff's Department
Civil Service C~issioo. The representation of a client in a court
proceeding may entail representatioo and sdvice before the suit is
actually instituted in order to eosure effective representation in the
court actioo.
SUMMARY
The Ranis County Attorney is required to
advise members of the Rarris County Sheriff's
Department Civil Service Commission regarding
their official duties. The county attorney is
also required to advise such c~ssioo lo regard
to cases peoding before the commission. The
county attorney may represent the sheriff in a
case pending before the c~ssioo.
Very truly your
.
L-L-b
JIM MATTOX
Attorney General of Texas
JACR EIGRTOWRR
First Assistant Attorney General
NARYKELLER
Executive Assistant Attorney General
RICR GILPIN
Chairmao, Opinion Committee
Prepared by Tom G. Davis
Assistant Attorney General
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