The Attorney General of Texas
April 3, 1980
MARK WHITE
Attorney General
Honorable Billy Red Lacy Opinion No. MW-157
Potter County Auditor
Potter County Courthouse Re: Article 332c, V.T.C.S., and
Amarillo, Texas 79101 the expenditure of county funds as
reimbursement for attorneys’ fees
incurred in defending an ouster
suit.
Dear Mr. Lacy:
You have requested our opinion regarding the authority of Potter
County under article 332c, V.T.C.S., to reimburse the Sheriff and County
Attorney for the attorneys’ fees these two officers incurred while defending
an ouster suit brought against them by the District Attorney. The District
Attorney brought the action for removal under the terms of article 5970,
V.T.C.S., and your question is whether the costs of defending this suit can be
borne by the county in accordance with the provisions of article 332c,
V.T.C.S. It is our opinion that the employment of private counsel that is
provided for in section 3 of the latter article was not intended to include the
hiring of such counsel when the action involved is an ouster suit seeking the
removal of county officials.
Article 5970, V.T.C.S., and article V, section 24 of the Texas
Constitution have been held to require a suit for removal to be brought in
the name of the state. As the Texas Supreme Court noted in Garcia v.
Laughlint 295 S.W.2d 191, 194 (Tex. 19551, “lilndividuel citizens have no
private interest distinguishable from the public as a whole and have no right
to maintain an ouster suit without being joined by a proper state official”
These suits must follow the procedures set out by the Texas
Legislature in articles 5970-5997, V.T.C.S., and must be sworn to and
conducted in the name of the State of Texas. Childress County v. Sachse,
310 S.W.Sd 414, 419 (Tex. Civ. App. - Amarillo), writ ref’d nr.e. by per
curiam, 312 S. W.d 380 fl959). -See V.T.C.S. art. 5977 (proceedings conducted
in name of state).
Article 332c, V.T.C.S., was enacted to provide legal representation to
county officials and employees who are sued while in the performance of
public duties and are the subject of an action brought by a “nonpolitical
Honorable Billy Fred Lacy - Page Two @IN-157 )
entity.” Section 1 of this act states that a “nonpolitical entity” does not include “the
state, a political subdivision of the state, a city, a special district, or other public entity.”
It is clear that the State of Texas is a political entity, and therefore article 332~ &es not
authorize the payment of attorneys’ fees. -See Letter Advisory No. 24 (1973).
For an analysis of those instances in which the case law permits a city or county to
pay the legal fees of officials who have acted within the scope of their official duties see
Attorney General Opinions H- 997 (1976) and WW-1464 (1962). See-gene Letter
Advisory No. 24 (l973).
SUMMARY
A county cannot rely on the provisions of article 332c, V.T.C.S., as
authority to pay the attorneys’ fees of officials who are subjected
to an ouster suit brought under the provisions of article 5970,
V.T.C.S.
w!m
MARK WHITE
Attorney General of Texas
JOHN W. FAINTER, JR.
First Assistant Attorney General
TED L. HARTLEY
Executive Assistant Attorney General
Prepared by Walter Davis
Assistant Attorney General
APPROVED:
OPINION COMMITTEE
C. Robert Heath, Chairman
David B. Brooks
Walter Davis
Bob Gam mage
Susan Garrison
Rick Gilpin
William G Reid
Bruce Youngblood
P. 307