Honorable Thomas B. Sehon Opinion No. m-824
Falls County District Attorney
Falls County Courthouse Re: Authority of a county
Marlin, Texas 76661 to provide legal counsel
for a sheriff and
district attorney sued in
their official capacities
(RQ-1024)
Honorable Thomas B. Sehon:
YOU ask two questions prompted by a federal lawsuit
brought by a member of the Falls County Commissioners
Court against you, both individually and in your capacity
as district attorney. The suit, which alleges violations
of federally protected civil rights, malicious
prosecution, libel, and slander, seeks damages of
$500,000. The suit also names as a defendant, in both an
individual and official capacity, the Falls County
sheriff. Your questions are:
(1) Under the provisions of section
157.061 of the Local Government Code,
formerly article 332c, V.T.C.S., is Falls
County required to provide legal counsel for
the sheriff and the district attorney to
defend them against a lawsuit filed by a
member of the commissioner's court?
(2) By virtue of section 81.002 ;ztiEpz
Local Government Code, formerly
2340, V.T.C.S., is the county COmmiSSiaIz-,
who brought the suit disqualified
(a) voting on the hiring of an attorney to
defend the officials he has sued and
(b) from participating in meetings about the
lawsuit conducted between the commissioner's
court and the attorney hired to defend the
county officials?
p. 3921
1
Honorable Thomas B. Sehon - Page 2 (m-824)
7
Falls County is obligated to provide legal counsel to the
county attorney and sheriff if the commissioners court
decides that the suit involves the public interest. Local
Gov't Code 5157.061; Attorney General Opinion JM-755
(1987). We have on several occasions considered whether a
public body, such as a 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 faith that the public interest is at
stake, even though an 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 bona fides of
the governing body's motive.
Attorney General Opinions JW-755 (1987); MW-252 (1980);
H-70 (1973); see also Attorney General Opinions H-887
(1976); H-544 (1975); M-726 (1970); AttorirIy General
Letter Advisory No. 24 (1973). See also Cltv Corsicana
v Babb, 290 S.W. 736, judgment adopted (Tex. Comm'n APP.
1927); see aenerau Annot., Payment of Attorneys'
Services in Defending Action Brought Against Public
Officials, 130 A.L.R. 736 (1941).
We emphasize that the authority of the county to
employ attorneys to defend county officers and 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 public interest.
Attorney General Opinions 374-755 (1987); 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 W-726 (1970); & Citv of Del Rio v. LOWe,
111 S.W.Zd 1208, 1219 (Tex. Civ. App. - San Antonio 1937),
rev'd on other arounds, 122 S.W.2d 191 (Tex. 1938): State
v. Averill 110 S.W.Zd 1173 (Tex. Civ. App. - San Antonio
1937, writ'ref'd).
Thus, the question of the lawfulness of expending ?
public funds to protect the public interest in a suit
brought against a public official or employee will always
be a question of fact. The question that the
commissioners must decide is whether or not the suit
p. 3922
Honorable Thomas B. Sehon - Page 3 m-824)
really is one that concerns the interests of the county or
whether the benefits provided by public funds accrue only
to the personal benefit of the public official or employee
represented at taxpayers' expense. We do not make
determinations of fact in the process of issuing an
opinion: that responsibility in this kind of question must
rest with the judgment of the county commissioners who
must vote whether to expend public funds in a particular
case.
Such a decision does not have to conclude that the
county officer must have been right, or that the suit
ultimately must be defeated, The county need only
determine that the public servant of the county acted in
good faith within the scope of an official duty
National Bank of Au&in v Presidio County, 26 S:W. %
(Tex. Civ. App. 1894, .
no writ): Attorney General Opinion
M-726 (1970). Bven if the suit contains allegations that
a county official or employee has acted outside his
authority, the expenditure of public funds in defense
would still be proper. Such an issue can only be decided
at the trial of the case ; standing alone, the allegation
itself cannot be the basis for a refusal to find that the
defense of the public officials is outside of the public
interest, except in the most extreme of cases. See. e.a
CitV Of Del Rio, sunra; see also Attorney General Opinion$
JM-755 (1987); H-887 (1980); H-544 (1978); Attorney
General Letter Advisory No. 24 (1973).
You suggest that section 157.061 of the Local
Government Code recuires the county to pay private counsel
to defend yourself and the sheriff.
LEGAL DEFENSE OF EMPLOYEES. (a). A
county official or employee sued by
nonpolitical entity for an action arisin:
from the performance of public duty is
entitled to be represented by the district
attorney of the district in which the county
is located, the county attorney, or both.
(b) If additional counsel is necessary or
proper in the case of an official or
employee provided legal counsel under Sub-
section (a) 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 official
employee is entitled to have 2:
p. 3923
Honorable Thomas B. Sehon - Page 4 (m-824)
commissioners court of the county employ and
pay private counsel.
(c) A county official or employee is not
required to accept the legal counsel
provided in this section.
(4 In this section, 'nonpolitical
entity' means an individual, firm, corpora-
tion, association, or other private entity.
It does not include the state, a political
subdivision of the state, a city, a special
district, or other public entity.
This statute, adopted by the legislature in 1973 and
placed in the Local Government Code by a nonsubstantive
revision in 1987, is declaratory of at least a part of the
common-law rule referred to above.1 See aenerally
Attorney General Letter Advisory No. 24 (1973). We do not
understand the statute to repeal or supplant the
common-law rule. At the least, the provisions strengthen
the rule by entitling a public servant to a defense
provided by the county in a certain class of cases. As
such, it can be construed to harmonize with the existing
common-law rule, Preels 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 imposed by the constitution
that a legitimate interest of the county must be involved.
Attorney General better Advisory No. 24 (1973). But when
the commissioners make a bona-fide decision that the
public interest is involved, then the public official or
employee must be afforded the legal assistance specified
in section 157.061.
As an express condition for the application of
section 157.061, the suit against the public servant must
be instituted by a "non-political entity," meaning
1. Subsection (a) of section 157.061 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 section
157.061, county and district attorneys had no such duty.
See Attorney General Letter Advisory No. 24 (1973).
p. 3924
Honorable Thomas B. Sehon - Page 5 (m-824)
an individual, firm, corporation,
association, or other private entity.
does not include the state, a politic::
subdivision of the state, a city, a special
district, or other public entity.
Local Gov*t Code 5157.061(d). It is apparent to us that
the litigation at hand has not been instituted by a public
entity.
A single county commissioner has 119 authority to
bring suit in the name of the county. A county is
manifestly a unit, and is the agency of the
whole county. The respective members of the
commissioners court are therefore primarily
representatives of the whole county, and not
merely representatives of their respective
precincts. The duty of the commissioners
court is to transact the business, protect
the interest, and promote the welfare of the
county as a whole.
I--
StOVall v. Shivers 103 S.W.2d 363, 366 (Tex. 1937); see
&j&j Tex. Const. 'art. V, 518; Local Government Code
081.001. Only action taken by the governing body of the
county -- the commissioner's court speaking through its
minutes -- can bind the county. Stratton v. Countv of
Liberty 582 .S.W.Zd 252 (Tex. Civ. App. - Beaumont, 1979,
writ rek'd n.r.e.); Hill F arm, I . 111 c V
S.W.Zd 414. (Tex. Civ. App. - Wacony968y* , :ff'd ::? ;.W"::
230 (1968). The information furnished to us clearly
demonstrates that the litigation prompting this request
was filed by a %onpolitical entity" -- a private person
who happens to be a county official, but who is seeking
redress for alleged wrongs merely personal to him even
though they may involve public officials acting against
him in their official capacities.
We also note that subsection (b) of'section 157.061
may apply in this case. That provision provides, in part,
that:
If additional counsel is Becessarv or
prooer in the case of an official
employee provided legal counsel . . . t::
official or employee is entitled to have the
commissioners court of the county employ and
- pay private counsel. (Emphasis added.)
p. 3925
I
Honorable Thomas B. Sehon - Page 6 (JM-824)
Local Gov't Code, 5157.061(b). In the usual case under
section 157.061, the defense of a public servant is to be
undertaken by the county attorney, the district attorney,
or both. Obviously, you, as the district attorney, cannot
be expected, on prudential grounds, or otherwise, to
defend yourself. Nor may you, as a formal matter of legal
ethics, represent your co-defendant, something that would
otherwise be your duty under section 157.061 of the Local
Government Code. See. e.a. Supreme Court of Texas, Rules
Governing The State Bar oftTexas, art. XII, 58 (Code of
Professional Responsibility), Canon 5 (1971). Thus, this
seems to be precisely the class of case where section
157.061 mandates that the county hire and pay for private
counsel for both yourself and the sheriff. Of course, the
commissioners must determine formally that it is necessary
and proper for private counsel to be employed and paid.
You also ask whether the county commissioner bringing
the suit is (a) disqualified from voting on questions
concerning the hiring and payment by the commissioners
court of an attorney to defend the public officials he has
sued and (b) disqualified from participating in meetings
about the lawsuit which might be conducted between the --_
commissioners court and the private attorney hired to
handle the suit. You suggest that section 81.002 of the
Local Government Code, formerly article 2340, V.T.C.S.,
provides affirmative answers to these questions.
Section 81.002 requires, in part, that a county
commissioner take an oath to abjure certain actions likely
to promote so-called %onflicts of interest." The precise
purpose of the provision is to eliminate the possibility
of any pecuniary gain from the county by those who manage
its affairs--in the case of %ontracts with" or wclaims
against" the county. S ee aenerally Hexar Countv V
Wentworth, 378 S.W.2d 126 (Tex. Civ. APP. - San Antonio
1964, writ ref*d n.r.e.); Attorney General Opinion M-1140
(1972). A commissioner must post a bond to insure the
faithful performance of this, and other, duties. Local
Government Code, section 81.002. The provision does not,
on its face, forbid a commissioner with a prohibited
interest from voting. But if such a vote is cast, and ,it
is a deciding one, then the contract is void. Bexar
Countv v. Wentworth, m. ?
Members of the commissioners court must avoid
acquiring or furthering an interest in any contract with
the county. Attorney General Opinions H-624 (1975): H-329
(1974) . ?
p. 3926
Honorable Thomas B. Sehon - Page 7 (J&82.!,)
In the instant case, one member of the commissioners
court, acting solely as a private citizen, is suing the
county attorney and the sheriff. The commissioners court
must decide whether or not to enter into a contract with a
private attorney to provide for the legal defense of the
the two county officials. Such a contract will not result
in the possibility of any direct pecuniary gain by the
commissioner bringing the suit, because he will not be
either a party or a beneficiary of its execution. Only the
lawyer engaged pursuant to the contract will receive money
from the county, and only the public officials he will
defend will be beneficiaries of the contract.
Nor, logically, can the contract result in the
possibility of an indirect gain by the commissioner
bringing the suit., The only purpose of the contract to
engage a lawyer is to defeat the commissioner's
expectations of winning a lawsuit and receiving
consequent award of damages from the public officials ht
is suing. The commissioner bringing the suit has only a
non-pecuniary interest in the contract: he hopes the
efforts of the attorney hired pursuant to the agreement
P will come to naught and that his cause will prevail.
In fact, it is clear that Section 81.002 of the Local
Government Code is limited in application to those cases
where action by a county commissioner will prompt the flow
of pecuniary benefits from the county to him, whether
directly or indirectly. In other words, money paid
because of a contract entered into by the county must find
its way to the benefit of the commissioner. The statute
should not be read to cover those circumstances where the
interest of the commissioner does not encompass the
possibility of a gain from the county, and, ultimately,
its taxpayers, through the execution of a contract.
In no previous case has the prohibition against a
county commissioner having an interest in a contract been
applied to a situation where funds expended by the county
pursuant to the contract could not ao to a commissioner,
either directly or indirectly. Thus, here, while it is
correct to say that the county commissioner bringing suit
is "interested*' in a contract between the county and
-
attorney engaged to defend the public officials he is
suing, his interest is not specifically of the kind
brought within the prohibitions of section 81.002. The
letting of the contract to hire a lawyer cannot possibly
influence the way the commissioner deals with the official
business of the county, and will not later give rise to a
p. 3927
,
Honorable Thomas B. Sehon - Page 8 (m-8243
possibility that the commissioner will be influenced by a
personal pecuniary interest should the contract go awry.
&g &lk v. Roe-, 184 S.W. 513 (Tex. Civ. App.-
Seaumont 1916, no writ).' To say otherwise would subject
county commissioners to an impossible dilemma: any
contract which might redound to their benefit in a
non-monetarv sense would be subject to the strictures of
section 81.002.2
Nevertheless, public policy in Te;tseforbids a public
official from casting a decldznq matter
concerning an issue in which he has a di:ict: adverse
interest. If, by such a single vote, a public official
can prevent an otherwise proper decision by the
commissioners court that it is in the public interest to
employ and pay for counsel to defend a public official in
a legal action, then the official is barred from voting.
In &g,ez v. State ex. rel TeVu, 446 S.W.2d 43 (Tex.
Civ. App. - Beaumont 1969, writ ref'd n.r.e.) the court
was confronted with a situation involving a city council
member who voted for a resolution to authorize legal
action to thwart a recall election aimed solely at him.
The court noted that while his vote was a decisive one in
securing a particular course of action, which was
otherwise unremarkable, he was disqualified gs a matter of
&8~ from voting because he had 'Ia direct personal and
pecuniiary interest in the matter under consideration."
& at 48 (emphasis added). The decision in Raaer goes to
some length to analogize the situation before it to cases
involving judicial and quasi-judicial functions, citing
inter alia Tex. Const. art. V, 511 (judges may not sit in
cases in which they are interested).
Thus, this rule is bottomed on principles different
from those concerning the common law conflict-of-interest
doctrine. A decision by a county commissioner to employ
2. Neither does section 171.003 of the Local
Government Code, formerly section 3 of article 98813,
v-',;;i~t; o;PPIY. That provision governs potential
interest involving local public officials,
including county commissioners, and "business entities" in
which they have a specified interest. The prohibitions in
section 171.003 do not apply here; a lawsuit brought by a
commissioner is not a "business entity" as defined in that
section.
p. 3928
Honorable Thomas B. Sehon - Page 9 (JM-824)
and pay counsel to defend a public official or employee at
county expense is a quasi-judicial act. A county
commissioner acts in a quasi-judicial capacity "when, in
the exercise of his functions, he is required to pass upon
facts and determine . . . action[s] by the facts found."
62 S.W.2d 366, 370 (Tex. Civ.
'd in Dart on other aro unds, 93
S.W.2d 382 (Tex. 1926). Such a judgment is at the very
heart of the decision which must be made in deciding
whether to provide legal assistance to a public servant
pursuant to section 157.061 of the Local Government Code.
Thus, the commissioner bringing the action is barred from
casting a deciding vote on any aspect of the matter,
including whether to employ and pay defense counsel
because of his obviously adverse interest. !i?a!zL zsYJxs.
You also ask whether the county commissioner bringing
the suit may be excluded from meetings of the commis-
sioners court where discussions are held between the
commissioners and the attorney they employ to defend the
public officials being sued. The analysis of your
question is best approached by considering the nature of
/- the relationship established by the use of public funds to
defend suits against public officials and employees. The
attorney representing a public official or employee has as
a client the official or employee named as a defendant,
not the county. In other words, the county is not a
client and, as such, it may not be privy to the
confidences shielded by the attorney-client privilege
recognized in the law. For if the county and the public
servant are both clients of the same lawyers, then
conflicts of interest may arise. In such an instance, the
public servant provided with representation may suffer
serious adverse consequences. Thus, the lawyer
representing the public official or employee must retain
in confidence all of the privileged aspects of the
representation of the public official or employee who is
the client. See. e .a Supreme Court of Texas, Rules
Governing the State Bar' of Texas, art. XII, g8 (Code of
Professional Responsibility), DR 4-101 (1973); Texas Rule
of Evidence 503. & Attorney General Opinion JM-100
(1984) .
r The attorney defending the public servant may not,
except as provided by law, discuss privileged aspects
arising out of the representation provided with anyone
other than the client. The county, per se, is not a
client; consequently, there should be no occasion for the
-
county commissioner bringing suit to attend any discussion
of the aspects of the case subsumed by the privileged
p. 3929
Honorable Thomas B. Sehon - Page 10 (.w%!4)
lawyer-client relationship. The commissioners court may
not hold such discussions so long as a proper assertion of
the attorney-client privilege is before them.
SUMMARY
A county may expend public funds for the
employment of a private attorney to repre-
sent county officials and employees who have
been sued in their official and individual
capacities if the suit involves an action of
the official or employee arguably 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 at stake. Whether or not the
county may properly expend public funds to
defend the official or employee is always a
matter of fact. In the class of cases
covered by section 157.061 of the Local
Government Code, the county must provide for
the legal defense of a public official or
employee in any of the ways specified in the
section if the commissioners decide that the
public interest is involved. An attorney
employed by the county to defend a public
official or employee has as a client only
the public official or employee being
defended: the attorney may not reveal
aspects of the case covered by the
attorney-client privilege to anyone,
including the commissioners court, so long
as the privilege is properly asserted.
Ll
Very truly you
A
JIM MATTOX
Attorney General of Texas
MARYRELLER
Executive Assistant Attorney General
JUUGE ZOLLIE STEAKLEY
Special Assistant Attorney General
p. 3930
Honorable Thomas B. Sehon - Page 11 (.Iw=f+)
RICK GILPIN
Chairman, Opinion Committee
Prepared by Don Bustion
Assistant Attorney General
p. 3931