Untitled Texas Attorney General Opinion
KP-0031
| Tex. Att'y Gen. | Jul 2, 2015Background
- Dallas County detention service officer (now former) faces a federal civil suit alleging an improper sexual relationship with an inmate; state criminal charges are also pending.
- Officer requested Dallas County commissioners court to employ and pay private counsel under Tex. Loc. Gov't Code § 157.901(a)-(b).
- Section 157.901(a) entitles a county official/employee sued for an action "arising from the performance of public duty" to representation by the district or county attorney.
- Section 157.901(b) requires the commissioners court to employ and pay private counsel if additional counsel is necessary or if the complained-of act may reasonably form the basis for criminal charges.
- The commissioners court must first determine (in good faith) whether the suit "arises from the performance of public duty" and whether paying private counsel serves the county’s legitimate interest, consistent with constitutional limits on gratuitous use of public funds.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether § 157.901 applies when the alleged act was committed by the official/employee | Officer: county must pay private counsel under § 157.901(b) because civil suit relates to conduct while employed | County: § 157.901 only applies if suit "arises from the performance of public duty" and commissioners court must decide; constitutional limits apply | § 157.901 applies only when the suit is for an action "arising from the performance of public duty," as determined in the first instance by the commissioners court |
| Whether § 157.901(b) requires payment when act may form the basis for criminal charges | Officer: pending or possible criminal exposure triggers county duty to pay private counsel | County: even if criminal exposure exists, duty is limited by nexus to public duty and by constitutional constraints on public spending | If it reasonably appears the act may form the basis for criminal charges, § 157.901(b) may require private counsel, but only when suit arises from performance of public duty and payment serves county interest |
| Whether commissioners court’s determination is reviewable and what standard applies | Officer: county must fund counsel; limited scrutiny | County: commissioners court has discretion and must make good-faith factual determination | Commissioners court makes the initial good-faith determination subject to judicial review on the facts |
| Whether paying private counsel could violate constitution (Art. III, §52(a)) | Officer: county funding is authorized by statute | County: payment may be unconstitutional if it serves only private interest | Payment is permissible only if commissioners court determines in good faith that funding serves a legitimate county interest, not merely the individual’s private interest |
Key Cases Cited
- White v. Eastland Cnty., 12 S.W.3d 97 (Tex. App.-Eastland 1999) (§157.901(a) and (b) construed together; additional counsel may be required when district/county attorney represents official)
- In re Reed, 137 S.W.3d 676 (Tex. App.-San Antonio 2004) (no duty under §157.901 where charge did not arise from public duty)
- LeLeaux v. Hamshire-Fannett Indep. Sch. Dist., 835 S.W.2d 49 (Tex. 1992) ("arising from" requires a legal nexus between act and duty)
- Tex. Mun. League Intergov'l Risk Pool v. Tex. Workers' Comp. Comm'n, 74 S.W.3d 377 (Tex. 2002) (statutes must be read in light of constitutional limits)
- City of Pasadena v. Smith, 292 S.W.3d 14 (Tex. 2009) (statutory construction must account for constitutional limitations)
- Tex. & Pac. Ry. Co. v. Hagenloh, 247 S.W.2d 236 (Tex. 1952) (assaults typically outside scope of servant’s authority)