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The Attormy General of Texas .iugust 31. 1984 JIM MATTOX

Attorney General Opinion No. JM-197 Supreme Court Bulldlng Honorable Thomas H. Fowler P. 0. Box 12548 District and Count], Attorney Austin, TX. 78711. 2548 Red River County Re: Application of article 512/475.2501 P. 0. Box 822 6252-26. V.T.C.S., to county Telex 9101874-1387 attorneys with felony responsi- Clarksville, Texas 75426 Telecopier 51214750266 bility 714 Jackson, Suite 700 Dear Mr. Fowler: Dallas. TX. 752024503

[21417428944] You have askecl whether county attorneys having responsibility for felony prosecutionr: are "officers or employees of any agency, 4824 Alberta Ave., Suite 160 institution, or depr.rtment of the state" within the meaning of article El Paso, TX. 799052793 6252-26, V.T.C.S. 915/533-3484

Article 6252-:!t~ reads in pertinent part: ,c,Wl Texas, Suite 700 muston, TX. 77002.3111 1. (a) The State of Texas is liable Sectiw 713223.5886 for and &all pay actual damages, court costs, and

attorney fees adjudged against officers or employee0 of any agency, institution, or 606 Broadway, Suite 312 department: of the state . . . where the damages Lubbock, TX. 79401.3479 ao8/747-5238 are based on an act or omission by the person in

the tours? and scope of his office, contractual performanc:e, or employment for the institution, 4309 N. Tenth, Suite B department:, or agency and: McAllen, TX. 78501.1685 512/882-4547 the damages arise out of a cause of (1: action for negligence, except a willful or

200 Main Plaza. Suite 400 wronglit act or an act of gross negligence; or San Antonio, TX. 782052797 512/2254191 the damages arise out of a cause of (2: action for deprivation of a right, privilege, An Equal Opportunity/ or immunity secured by the constitution or laws Affirmative Action Employer of th::rl state or the United States, except when the c>xt in its judgment or the jury in its verdict: finds that the officer, contractor, or employee acted in bad faith.

(b) ::hls Act shall not be construed as a waiver oji any defense, immunity, or jurisdictional *2 Honorable Thomas H. Fowler '- Page 2 (JM-197)

bar available 'c.3 the state or its officers, contractors, or erqloyees . . . .

. . . . Sec. 5. A member of the commission, board, or other governing bDiy of an agency, institution, or department is iul officer of the agency, institution, or department for purposes of this Act.

The provision of sectim five that members of governing bodies are officers of their respective agencies, institutions, or departments for purposes of the act is not intended as an exclusion of other persons from the "of1'icer" category, in our opinion. See Educ. Code $65.42. But we do n#x think county attorneys, whetherr not they have responsibility Jior prosecuting felonies, are officers or employees of a state agency, institution or department of the state within the meaning of artic1.e 6252-26, V.T.C.S. See Attorney General - Opinion B-1160 (1978).

This office found it unnecessary in Attorney General Opinion MW-252 (1980) to decide whe:ther article 6252-26 would apply to a suit against a district attorne, 1) because required procedural steps had not been taken. But In Attoxey General Opinion H-1160 (1978), after reviewing the history of the! provision, it was noted that the caption of the act, as amended ir. 1977, stated that the act related to "defense of claims based on certain conduct of state officers or employees." See Acts 1977: 65th Leg., ch. 273 at 730. Consequently, federal technicians, even t:lough supervised by an officer of a state agency, were concluded not to be within the statute.

The term "state offic'?c" can be used in both a popular sense to mean an officer whose jurisdiction is coextensive with the state or, in a more enlarged sense. tc mean one who receives his authority under the laws of the state. Er parte Preston, 161 S.W. 115 (Tex; Crim. App. 1913). Cf. Harris C&&y Commissioners Court v. Moore, 420 U.S. 77, 82 n.6 (lx). In our Opinion, article 6252-26 was meant to apply only to officers and emploiees of state agencies, institutions and departments having statewide jurisdiction. We do not think it was meant to embrace everyone **ho might be considered to be within the legislative, executive or judicial departments of state government within the meaning of article II, section 1 of the Texas ConsHtution.

Travis County v. Jourdan, 4i S.W. 543 (Tex. 1897); Jernigan v. Finley, 38 S.W. 24 (Tex. 1896); Fears v. Nacogdoches County, 9 S.W. 265 (Tex. 1888); cf. State v. Moore.!7 Tex. 307 (1882). In Travis County v. J,rlrdan, supra, the state supreme court held --

that although county office!rs are state officers in a certain sense, a

Honorable Thomas H. Fowler -. Page 3 (JM-197)

statute that expressly appl.j.ed to "any district judge or officer of the state government" did not apply to a county treasurer because the mention of district judges would have been unnecessary had the legislature meant for the statute to apply to all "state officers" in the broad sense. The mentirr of the district judge showed, the court said, that the statute did not mean to embrace any other officers on a district or county level. We believe the enactment of article 6252-19b. V.T.C.S., in 197!),. coupled with the amendment and virtual reenactment of article 6252..:!6 in 1981, leads to a similar conclusion. See Acts 1979, 66th Leg., c,t,. 744 at 1830; Acts 1981, 67th Leg., ch.

553 at 2274.

Article 6252-19b, enacixd four years after the original enactment of article 6252-26, exprescly applies only to current and former officers and employees of "a county, city, town, special purpose district, or any other palitical subdivision of this state," and provides that such governanrtal units "may pay actual damages, court costs and attorney's fees" adjudged against their servants if damages are based on acts or omiss::ons by them in the course and scope of their employment and arise out of a cause of action for negligence (other than one arising from gross negligence, a willful or wrongful act, or official misconduct:). The pattern and effect of article 6252-19b closely resembles that of article 6252-26. See Attorney General Opinion hW-276 (13,30) (purpose of article 62-26). Cf. V.T.C.S. art. 332~; Attorney General Opinion MW-157 (1980).

Statutes dealing with the same general subject and having the same general purpose are considered to be in pari materia though they contain no reference to out another and were enacted at different times; they will be read and construed together as though they were parts of one law. See 53 l'ex. Jur. 2d Statutes 4186 at 280. When article 6252-19b and6252-26 are read together, It seems apparent that article 6252-19b was inteucled to provide a means of indemnifying officers and employees not already protected by article 6252-26. Otherwise little reason for the enactment of article 6252-19b can be discerned, since article 6X2-26 already provided that the state was "liable for and shall pay" damages, costs and fees adjudged against officers and employees of "any agency, institution or department of the state."

Article 6252-19b, it should be noted, unlike article 6252-26, does not say that a political subdivision shall be liable for and pay my damages, costs or fees; it says the political subdivision w do so. Article 6252-19b is also more restricted in its scope. See Attorney General Opinion MW-158 (1980). Article 6252-26 = subsequently amended in 1911:. without any suggestion that it covered those persons subject to prxection under article 6252-19b. Also, the legislature in 1983 was ce,reful to provide that "the provisions of [article 6252-26, V.T.C.S.11 do not apply to article 4399," Revised *4 Honorable Thomas H. Fowler . . Page 4 (m-197)

Statutes (relating to the i!t.ty of the attorney general to respond to requests for legal opinions), but it made no such provision for article 6252-19b. We are Lrd to conclude that the two statutes are not Intended to, and do not, cover the same officers and employees. See Acts 1983, 68th Leg., ch 735 at 4516. -

We are aware that language in the federal case of Loftin V. Thomas, 681 F.2d 364 (5th C::r. 1982) could be read to mean that in the opinion of the court a suit against a county sheriff would be embraced by article 6252-26, V.T.C.S., as well as article 6252-19b. But we think the Loftin v. Thomig; court meant to show merely that the plaintiff there had a state remedy under at least one of the existing Texas statutes.

Although federal courts have concluded that prosecuting attorneys act as agents for the stat:e rather than for the county in their prosecutorial functions, SE? Crane V. Texas, 534 F. Supp. 1237 (N.D. Tex. 1982). cf. V.T.C.S,%t. 332b-4, the statutory language and history do notevince an intent that article 6252-26, V.T.C.S., apply to county officers acting fcr the state. On the contrary, the 64th. 65th, 66th and 68th Legislatures have all dealt with the statute in a manner suggesting that its scope is determined not by the function of an officer or employee, but: by the relationship of the officer or employee to the various levels bf state government. Cf. Bexar County v. Linden, 220 S.W. 761 (Tex, 1920).

It is our opinion, therefore, that county attorneys having responsibility for felony prosecutions are not "officers or employees of any agency, institution, or department of the state" within the meaning of article 6252-26, 'I.T.C.S.

SUMMARY County attorneys having responsibility for felony prosecutions are not officers or employees of any agency, institution. or department of the state within th,r meaning of article 6252-26, V.T.C.S.

Very truly yours J-h L JIM MATTOX Attorney General of Texas TOM GREEN

First Assistant Attorney Ge~lrral

Honorable Thomas H. Fowler - :?age 5 (m-197)

DAVID R. RICHARDS

Executive Assistant Attorney (Zenera

Prepared by Bruce Youngblood

Assistant Attorney General

APPROVED:

OPINION COMMITTEE

Rick Gilpin. Chairman

David Brooks

Colin Carl

Susan Garrison

Jim Moellinger

Nancy Sutton

Bruce Youngblood