Untitled Texas Attorney General Opinion, KP-0016

Waller County commissioners were the subject of a criminal investigation alleging Open Meetings Act violations; special prosecutors presented the matter to a grand jury, which returned no indictments.
The county criminal district attorney recused from the matter; the commissioners court voted to retain private counsel to defend county officials.
The commissioners court later approved payment of the defense attorneys’ invoices, finding the allegations arose from performance of public duties, the public interest required a vigorous defense, and the district/county attorneys had a conflict.
Requestor asked whether Local Government Code §157.901 authorizes payment of attorney’s fees where no criminal charges were filed and whether commissioners under investigation may vote to approve payment of their own or co-members’ fees.
The opinion analyzes §157.901, prior Texas cases on county authority to hire counsel, and public‑policy restraints on conflicted votes by officials under investigation.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether a county may pay attorney's fees for a commissioner’s criminal defense when the investigation did not result in filed charges	County may pay under commissioners court general authority and §157.901(b) supports employing private counsel when criminal charges might follow	§157.901 addresses representation in civil suits; it does not expressly authorize payment for criminal defense, and payment must not be merely a private benefit	A county may pay fees for representation in a criminal investigation that did not result in charges, provided the commissioners court determines the payment serves a public interest (subject to judicial review)
Whether commissioners who are under criminal investigation may vote to approve county payment of their own or co-members’ defense fees	Commissioners voted to retain and pay counsel; they argue the court’s finding and vote authorized payment	Public policy bars an official from casting the deciding vote on matters where the official has a direct, personal interest	Public policy likely precludes a commissioner under criminal investigation from voting to approve payment of that commissioner’s or other similarly situated commissioners’ defense fees

White v. Eastland Cnty., 12 S.W.3d 97 (Tex. App.-Eastland 1999) (county may employ private counsel; §157.901(b) interpreted in context of civil representation)
Guynes v. Galveston Cnty., 861 S.W.2d 861 (Tex. 1993) (commissioners court may employ attorneys so long as it does not usurp statutory duties of other officials)
Hager v. State ex rel. Te Vault, 446 S.W.2d 43 (Tex. Civ. App.-Beaumont 1969) (public official may not cast deciding vote on matters of direct personal interest)
Smith Cnty. v. Thornton, 726 S.W.2d 2 (Tex. 1986) (Open Meetings Act consequences; actions in violation are voidable)
Comm'rs Ct. of Limestone Cnty. v. Garrett, 236 S.W. 970 (Tex. Comm'n App. 1922) (general rule on enactment by majority of legal votes)