The Attorney General of Texas
October 0. 1080,
MARK WHITE
Attorney General
Honorable Tom Curtis Opinion No. ~+252
District Attorney
47th Judicial District Re: Authority of county to pay
Amarillo, Texas 79101 court costs incurred by a district
attorney
Dear Mr. Curtis:
You ask whether Potter County has authority to pay court costs for
the transcript, statement of facts, and filiq fee adjudged against the
district attorney of the 47th Judicial District in Southwestern Newspapers
Corporation v. Curtis, 584 S.W. 2d 362 (Tex. Civ. App. - Amarillo 1979, no
writ), and filing fees advanced by him in the related case, Curtis
588 S.W. 2d 687 (Tex. Civ. App. - Amarillo 1979, no writ). The suit srose
out of the district attorney’s decision to deny a particular newspaper access
to official news sources in his office without an appointment. -See Attorney
General Opinion MW-158 (1980).
Several opinions of this office have considered whether a governing
body has authority to hire attorneys to defend public officials or employees
against suits arising out of their public duties. See Attorney General
Opinions H-887 (1976); H-544 (1975); H-70 (1973). Wexlieve the standards
articulated in these opinions also govern whether court costs and filing fees
may be paid
Attorney General Opinion H-70 (1973) concerned the purchase at public
expense of liability ilrrurance to protect school trustees against the costs of
litigation growing out of the discharge of their official duties. The opinion
stated as follows:
Where a Texas governing body believes in good
faith that the public interest is at stake, even
though an officer is sued indivi&ally, 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 r.g~onthe bona fide6 of the governing
body’s motive.
p. 793
Honorable Tom Curtis - Page Two @M-252)
This rationale was followed in Attorney General Opinion H-544 (1975) which
determined that the commissioners court may pay the legal expenses of a judge in
defending a lawsuit which arose out of his conducting a court of inquiry. Although the
county was not obligated to pay such expenses, it could do so if it determined it was in
the county’s interest to pay them. Attorney General Opinion H-887 (1976) stated that a
general law city could hire an attorney to defend a city official or employee against
lawsuits arising out of actions taken within the scope of his public duties.
In Letter Advisory No. 24 (19731, this office considered the constitutionality of
article 332c, V.T.C.S., then pending legislation. This statute provides for the defense
of county officials and employees by district or county attorneys or by county-paid
private counsel, in certain lawsuits brought against them by non-political entities. The
letter advisory found the statute constitutional if limited “to those circumstances
where the interest of the county, not in confiict with those of the state, are at stake,
and where there is a good faith showing that the individual sued was acting within the
scope of his authority in the performance of public duties.”
We believe the county may pay the costs you inquire about if it reasonably
believes its interest is at stake, and if the district attorney sued was acting within the
scope of his authority in the performance of public duties. If this showing is made, we
believe the county would have implied authority to pay these expenses under article
332a, V.T.C.S., which authorizes the county to pay the expenses incident to the
operation of the district attorney’s office. Whether the action giving rise to the
lawsuits was within the scope of the district attorney’s authority is a fact question
which cannot be resolved in the opinion process. See Attorney General Opinion H-887
(1976). The county must resolve this in accordancewith the guidelines set forth in this
opinion. Of course, it is possible that some or all of these fact questions may be
addressed by the trial court when it considers the case on remand.
You also ask whether the county is required by law to pay these court costs or
filing fees. We find no statute which requires the county to pay these expenses.
Although article 332c, V.T.C.S., requires that legal representation be provided for
county officials or employees sued by a non-political entity, this statute &es not apply
to district offices. See Attorney General Opinion H-656 (1975) (district attorney is
district, not county, o??%er).
You finally ask whether the State of Texas is required by law to pay the court
costs and filing fees incurred by the district attorney. Article 6252-26, V.T.C.S.,
makes the state liable for actual damages, court costs and attorney fees adjudged
against officers or employees of any agency, institution or department of the state. It
is unnecessary to determine if article 6252-26 would apply in the case of a suit against
a district attorney, since the state has no liability unless the Attorney General has
been given an opportunity to &fend the suit as required by section 3 thereof. No such
request was made here. Consequently, article 6252-26 does not entitle him to court
costs.
p. 794
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Honorable Tom Curtis - Page Three (MI-2521
SU MMAR’Y
Potter County has the authority to pay court costs adjudged
against the district attorney and filing fees advanced by him in
connection with a lawsuit against him if the county reasonably
believes its interest is at stake and if the lawsuit arose out of
actions taken by the district attorney in the performance of his
public duties. Neither the county nor the state is required by
law to pay the district attorney’s court costs and filing fees.
MARK WHITE
Attorney General of Texas
JOHN W. FAINTER, JR.
First Assistant Attorney General
RICHARD E. GRAY III
Executive Assistant Attorney General
Prepared by Susan Garrison
Assistant Attorney General
APPROVED:
OPINION COMMlTTEE
Susan Garrison, Acting Chairman
Jon Bible
Walter Davis
Risk Gilpin
Bruce Youngblood
p. 795