Untitled Texas Attorney General Opinion ( 2015 )

KEN PAXTON
ATTORNEY GENERAL OF TEXAS
September 28, 2015
The Texas Constitution and sections 402.042 and 402.043 of the Government Code grant the
attorney general authority to issue attorney general opinions. An attorney general opinion is a
written interpretation of existing law. The development of an attorney general opinion is an
involved and thorough process involving many layers of comprehensive review. Attorney general
opinions do not necessarily reflect the attorney general's personal views, nor does the attorney
general in any way "rule" on what the law should say. As have those that have come before it,
this administration strives to craft opinions with the greatest level of legal accuracy and without
any hint of impropriety.
By its very nature, the. attorney general opinion process invites a variety of legal issues to be
brought before our office for analysis and review. The questions asked are outside the scope of
this office's control, and some of the questions to be addressed may raise actual or perceived
conflicts of interest" for the Attorney General and his staff. Consistent with applicable statutes and
rules, staff members involved in the opinion process must recuse themselves from matters in which
there may exist an actual or perceived conflict of interest. Accordingly, pursuant to section
402.001 of the Government Code, I delegate my signature authority in the attorney general opinion
process to the First Assistant Attorney General, Charles E. Roy, for those opinions in which I may
have an actual or perceived conflict of interest or in which my involvement gives even the
appearance of impropriety. Any such opinion signed by the First Assistant under this delegation
carries the full force of an attorney general opinion.
Very truly yours,
~?~
KEN PAXTON
Attorney General of Texas
September 28, 2015
The Honorable Shane Britton
Brown County Attorney
200 South Broadway
Brownwood, Texas 76801
Dear Mr. Britton:
In the process of reviewing this matter, this office concludes there could be an actual or
perceived conflict of interest such that the Attorney General has recused himself from any
participation in the matter. Accordingly, pursuant to Government Code section 402.001
and the authority delegation issued by the Attorney General on September 28, 2015, the
First Assistant Attorney General will sign this opinion. Any such recusal is intended to go
beyond the letter and spirit of the governing law and rules in order to avoid even the
appearance of impropriety and to demonstrate our ongoing commitment to the highest
ethical standards.
Very truly yours,
c``
First Assistant Attorney General
CER:ac
KEN PAXTON
ATTORNEY GENERAL OF TEXAS
September 28, 2015
The Honorable Shane Britton Opinion No. KP-0037
Brown County Attorney
200 South Broadway Re: Authority of a county to reimburse a
Brownwood, Texas 76801 county commissioner for legal costs related to
defending against criminal allegations for
which the commissioner was found not guilty
(RQ-0018-KP)
Dear Mr. Britton:
You tell us that a Brown County commissioner was indicted for a criminal offense but was
found not guilty after a jury trial. 1 The commissioner is now asking the county for reimbursement
of his legal costs. See Request Letter at 1. On behalf of the county auditor, you inquire whether,
under section 157.901 of the Local Government Code or the common law, Brown County (the
"County") may reimburse the commissioner for the legal expenses he incurred in his defense. See
id. We consider section 157.901 and the common law in turn.
Section 157.901 of the Local Government Code provides that
(a) A county official or employee sued by an entity, other than the
county with which the official or employee serves, for an action
arising 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 neGessary or proper in the case of an official
or employee provided legal counsel under Subsection (a) or if it
reasonably appears that the act complained of may form the basis
for the filing of a criminal charge against the official or employee,
the official or employee is entitled to have the commissioners court
of the county employ and pay private counsel.
TEX. Loe. Gov'T ~ODE ANN. § 157.901(a)-(b) (West 2008). A Texas court of appeals has
determined that "[s]ection 157.901 does not impose a duty on counties to provide counsel to county
officials and employees charged with criminal offenses." White v. Eastland Cnty., 12 S.W.3d 97,
1
See Letter from Honorable Shane Britton, Brown Cnty. Att'y, to Honorable Ken Paxton, Tex. Att'y Gen. at
1 (Mar. 16, 2015), https://www.texasattomeygeneral.gov/opinion/requests-for-opinion-rqs ("Request Letter").
The Honorable Shane Britton - Page 2 (KP-0037)
102 (Tex. App.-Eastland 1999, no pet.) (construing section 157.901 's statutory predecessors).
The White court determined that subsection (b)' s phrase, "if it reasonably appears that the act
complained of may form the basis for the filing of a criminal charge against the official or
employee," referred back to the instituted civil "suit" mentioned in subsection (a). Id. at 102 &
n.4. The court explained that the phrase did not "create an independent basis of authority to furnish
legal assistance at public expense," and to construe it otherwise would be contrary to the purpose
of the statute. Id. at 102 (quoting Tex. Att'y Gen. Op. No. JM-755 (1987) at 4). The court held
that section 157.901 imposes no duty on a county to provide or pay for costs that an officer or·
employee incurs in defense of criminal charges. Id.; see also Tex. Att'y Gen. Op. Nos. GA-0523
(2007) at 2-3, JC-0294 (2000) at 4, JM-755 (1987) at 3-5.
While the statute imposes no duty on a county to provide or pay for criminal representation
of its officers or employees, this office has consistently recognized that the common law may allow
a county discretion to do so in certain instances. See Tex. Att'y Gen. Op. Nos. GA-0523 (2007)
at 3--4, JC-0047 (1999) at 3. Prior attorney general opinions have concluded that a public
expenditure for an officer's or employee's legal expenses, incurred to defend against an action
premised upon an on-the-job act or omission, does not as a matter of law contravene the spending
of public funds limitations in the Texas Constitution. See Tex. Att'y Gen. Op. No. JM-755 (1987)
at 4 (describing section 157.901 's predecessor statute and common-law rule as belonging to a
"narrow class of the laws which permits public funds to be spent for the indirect private benefit of
certain persons because an important public interest predominates"); see also Tex. Att'y Gen. Op.
No. LA-24 (1973) at 2-3. Such a public expenditure, however, is limited to
situations where the legitimate interests of the [political
subdivisions]-and not just the personal interests of the officers or
employees-require the assertion of a vigorous legal defense on
behalf of the public interest. [A political subdivision] may not use
public funds when the principal interest to be defended is a purely
private one.
Tex. Att'y Gen. Op. No. JC-0047 (1999) at 2-3. A two-part test requires a political subdivision
to "determine that the suit involved a public interest requiring a vigorous defense, or, conversely,
that paying [the] legal fees serves a public, not merely the officer's or employee's private, interest."
Tex. Att'y Gen. Op. Nos. JC-0047 (1999) at 3, DM-488 (1998) at 2. The politic.al subdivision
must also determine that the "officer or employee committed the alleged act or omission that was
the basis of the lawsuit while acting in good faith and within the scope of official duties." Tex.
Att'y Gen. Op. No. JC-0047 (1999) at 3; see also Tex. Att'y Gen. Op. Nos. GA-0104 (2003) at 4,
DM-488 (1998) at 3, L0-98-103, at 3. Such a determination is a fact question for the County to
decide in the first instance, subject to judicial review. Tex. Att'y Gen. Op. No. GA-0104 (2003)
at 4; see Tex. Att'y Gen. Op. No. GA-0380 (2005) at 3--4 (citing Comm 'rs Ct. of Titus Cnty. v.
Agan, 940 S.W.2d 77, 80 (Tex. 1977) (noting standard by which to invoke a district court's
supervisory jurisdiction over a commissioners court)).
Previous attorney general opinions considering the payment of an officer's or employee's
legal expenses applied the same standard whether the matter was civil or criminal. See Tex. Att'y
Gen. Op. No. JC-0294 (2000) at 4 ("When questions about paying attorney's fees in criminalcases
The Honorable Shane Britton - Page 3 (KP-0037)
have arisen, this office has in the past assumed that the standards applicable in civil lawsuits are
equally relevant to criminal cases."). Early recitations of the common-law rule included the idea
that the propriety of such an expense "is not made dependent upon the outcome of the litigation,
but upon the bona tides of the governing body's motives." Tex. Att'y Gen. Op. Nos. JC-0047
(1999) at 2, L0-98-103, at 2, JM-755 (1987) at 2. But in Opinion JC-0294, this office determined
it was likely that a "Texas court would hold ... that there is no public interest in defending a guilty
official from prosecution." Tex. Att'y Gen. Op. No. JC-0294 (2000) at 9; see also City of Del Rio
v. Lowe, 111 S.W.2d 1208, 1219-20 (Tex. Civ. App.-San Antonio 1937) (recognizing there is
no public purpose in city commission paying legal fees for city officers charged with crimes), rev'd
on other grounds, 122 S.W.2d 191 (Tex. 1938). Opinion JC-0294 advised that a political
subdivision must defer its decision to pay an official or employee's legal expenses "until after
disposition of the charges."2 Tex. Att'y Gen. Op. No. JC-0294 (2000) at 9 (overruling DM-488's
statement that the outcome of the criminal case is not relevant to the decision to reimburse the
of~cer for his attorney's fees in defending against a criminal charge).
As the commissioner has been found not guilty on the criminal charges, the County may
reimburse his legal expenses upon finding that the payment is primarily for a county purpose and
not merely for the commissioner's personal interest and the prosecution was for actions taken by
the commissioner that were within the scope of his official duties. See generally Tex. Att'y Gen.
Op. No. JC-004 7 (1999) at 3 (stating that "the common-law rule is permissive-it does not require
the political subdivision to provide counsel").
2
Early attorney general opinions determined that a political subdivision had no authority to reimburse an
officer or employee for legal expenses the officer or employee incurred, but more recent opinions have concluded that
the "common law permits the [political subdivision] to reimburse the [officer's] legal expenses" upon finding the
expenditure satisfied the two-part standard discussed above. Tex. Att'y Gen. Op. No. DM-488 (1998) at 2--4
(overruling Opinion DM-107 (1992) and several letter opinions to the extent of their inconsistency, and affirming
Opinions MW-252 (1980) and M-736 (1970)).
The Honorable Shane Britton - Page 4 (KP-0037)
SUMMARY
Under the common law, the Brown County Commissioners
Court has discretion to reimburse the legal expenses incurred by a
county commissioner in the defense of a criminal matter for which
he was found not guilty. The County must find that the expenditure
is primarily for a . county purpose and not merely for the
commissioner's personal interest and that the prosecution was for
actions taken by the commissioner that were within the scope of his
official duties.
Very truly yours,
CHARLES E. ROY
First Assistant Attorney General
BRANTLEY STARR
Deputy Attorney General for Legal Counsel
VIRGINIA K. HOELSCHER
Chair, Opinion Committee
CHARLOTTE M. HARPER
Assistant Attorney General, Opinion Committee