Case Information
*1 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 sheriff and
for a 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 federally civil rights, malicious of protected prosecution, libel, and slander, seeks damages of $500,000. The suit also names as a defendant, in both an the Falls County individual and official capacity, Your questions are: sheriff. provisions section
(1) Under the 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 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?
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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 sued stake, even though an officer is individually, it is permissible for the body employ attorneys to defend 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' Public Services in Defending Action Brought Against 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 -- require the assertion of a officers or employees 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 The question be a question fact. that commissioners must decide is whether or not the suit
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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 official or employee, the official employee is entitled have 2: *4 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 counsel required accept the legal provided in this section. this section, 'nonpolitical (4 In
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 common-law rule. At the least, the provisions strengthen public servant to a defense the rule by entitling a As provided by the county in a certain class of cases. to harmonize with the existing
such, it can be construed 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 specified employee must be afforded the legal assistance in section 157.061.
As an express condition for the application 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 county or district attorney, or both, to defend the public in section servant, except in certain cases specified Prior to the adoption of section three of the statute. attorneys had no such duty. 157.061, county and district See Attorney General Letter Advisory No. 24 (1973).
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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 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-- v. Shivers 103 S.W.2d 363, 366 (Tex. 1937); see StOVall &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, arm, I . writ rek'd n.r.e.); Hill F 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.)
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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 on prudential grounds, or otherwise, be expected, 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 from participating in meetings sued and (b) disqualified about the lawsuit which might be conducted between --_ 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 of this, and other, duties. Local faithful performance Government Code, section 81.002. The provision does not, on its face, forbid a commissioner with a prohibited But if such a vote is cast, and ,it interest from voting.
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) . *7 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 and only the public officials he will from the county, 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 engage a lawyer is commissioner's to defeat 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 will come to naught and that his cause will prevail. P
In fact, it is clear that Section 81.002 of the Local in application to those cases Government Code is limited where action by a county commissioner will prompt the flow benefits from the county to him, whether of pecuniary In other words, money paid directly or indirectly.
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 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 The
brought within the prohibitions of section 81.002. 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
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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 subject to the strictures non-monetarv sense would be section 81.002.2
Nevertheless, public policy in Te;tseforbids a public from casting a decldznq matter official 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 commissioners court that it is in the public interest 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 a resolution to authorize legal for 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, That provision governs potential v-',;;i~t; o;PPIY. 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.
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and pay counsel to defend a public official or employee at county expense is a county quasi-judicial act. A commissioner acts in a quasi-judicial capacity "when, in the exercise of his functions, he is required to pass upon by the facts found." facts and determine . . . action[s] 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- are held between the sioners court where discussions they employ to defend the commissioners and the attorney being sued. The analysis your public officials question is best approached by considering the nature of the relationship established by the use of public funds to /- The defend suits against public officials and employees.
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 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, lawyer or employee must retain representing the public official in confidence of the all of the privileged aspects representation of the public official or employee who is the client. See. e a . Supreme Court of Texas, Rules of Texas, art. XII, g8 (Code of Governing the State Bar' Professional Responsibility), DR 4-101 (1973); Texas Rule 503. & Attorney General Opinion JM-100 of Evidence (1984) . The attorney defending the public servant may not,
r by law, discuss privileged aspects except as provided 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
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Honorable Thomas B. Sehon - Page 10 (.w%!4) The commissioners court may
lawyer-client relationship. 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 employee's scope of the official's or public authority in the performance of duties and if the county commissioners in good faith that the public believe interest is at stake. Whether or not the county may properly expend public funds to defend the official or employee is always a In the class of cases matter of fact. 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 case covered by attorney-client privilege anyone, court, so long including the commissioners as the privilege is properly asserted. Very truly Ll you A MATTOX JIM Attorney General of Texas MARYRELLER
Executive Assistant Attorney General
JUUGE ZOLLIE STEAKLEY
Special Assistant Attorney General
Honorable Thomas B. Sehon - Page 11 (.Iw=f+)
RICK GILPIN
Chairman, Opinion Committee
Prepared by Don Bustion
Assistant Attorney General