Untitled Texas Attorney General Opinion ( 2000 )

OPPlCE OF THE ATTORNEY GENER.4L STATE 06 TEXAS
JOHN CORNYN
April 12,200O
The Honorable Sonya Letson Opinion No. K-0209
Potter County Attorney
500 South Fillmore, Room 303 Re: Whether the Potter County Juvenile Board is
Amarillo, Texas 79101 authorized to contract with an attorney to represent
the Board in an action brought against it by Potter
County and related questions (RQ-0147-X)
Dear Ms. Letson:
You ask whether the Potter County Juvenile Board (the “Juvenile Board” or “Board”) is
authorized to contract with an attorney to represent the Board in a mandamus action brought against
it by Potter County through the Potter County Commissioners Court (the “Commissioners Court”).
You also ask what funds may be used to pay the attorney’s fees and whether the Commissioners
Court has any authority over the funding source. We conclude that the Juvenile Board is authorized
to contract with an attorney to represent it in litigation. We also conclude that the Juvenile Board
may pay its attorney’s fees with funds in the juvenile probation department account in the county
treasury without the approval of the Commissioners Court.
Your request stems from a dispute between the Juvenile Board and the Commissioners Court
regarding the Board members’ compensation for fiscal year 1998-99. See Brief from Honorable
Sonya Letson, Potter County Attorney, to Honorable John Comyn, Texas Attorney General (Nov.
12, 1999) at 1 (on file with Opinion Committee) [hereinafter “Brief’]. Members of the Juvenile
Board, judges of various courts in the county, receive additional compensation for their service on
the Board under section 152.0053 of the Human Resources Code. See TEX. HUM. RES. CODE ANN.
5 152.1941 (Vernon 1990). That statute provides that “[t]he commissioners court may compensate
each juvenile board member for the member’s duties performed on the juvenile board.” Id.
5 152.0053. In August 1998, the Juvenile Board adopted a 1998-99 budget that included $4,700 in
annual compensation for each of the Board members. The Juvenile Board submitted the budget to
the Commissioners Court in accordance with section 140.004 of the Local Government Code. In
adopting the final budget for Potter County, the Commissioners Court voted to decrease the annual
compensation for the Board members from $4,700 to $2,100, apparently in reliance on section
152.0053 of the Human Resources Code. See Brief, supra, at l-2.
Thereafter, the chairman of the Juvenile Board sent a letter to the county treasurer and county
auditor directing them to disburse funds according to the budget adopted by the Board, which they
did. See id. at 2. During the months of negotiation that followed, both the Commissioners Court
The Honorable Sonya Letson - Page 2 (JC-0209)
and the Juvenile Board retained private counsel. See id. at 2-3. In March 1999, Potter County
through the Potter County Commissioners Court tiled an action for mandamus and declaratory relief
against the Juvenile Board. The parties agreed to settle the litigation in May 1999. See id. at 3. The
final order granting the parties’ motion for non-suit provided that “Potter County’s costs and
attorney’s fees shall be paid by Potter County and the Potter County Juvenile Board’s costs of court
and attorney’s fees shall be paid by the Potter County Juvenile Board, but not by Potter County.”
Potter County Y. Potter County Juvenile Board, No. 85929-C (251st Dist. Ct., Potter County, Tex.
July 2, 1999) (modified agreed order granting parties’ motion for non-suit) [hereinafter “Order”].
Apparently, further controversy arose in August 1999 when vouchers for payment of the
Juvenile Board’s counsel were submitted at a commissioners court meeting for approval. You
inform us that “[dlisagreement between the two entities ensued concerning the appropriate
mechanism and source for payment of the Juvenile Board’s legal fees. The Juvenile Board
maintained that its discretionary control over its funds permitted it to direct payment of its counsel
out of funds held by the county treasurer for the Juvenile Board. Conversely, the Commissioners
Court argued that all such funds were county funds, and the terms of the agreed dismissal order
precluded those funds from being applied to payment ofthe Juvenile Board’s attorney’s fees.” Brief,
supra, at 4. The two entities finally agreed that the legal fees would be paid and that you would
submit this query to the Attorney General. See id.
Before answering your specific questions, we generally review the legal nature of the
Juvenile Board, its funding, and its relationship with the Commissioners Court. The Potter County
Juvenile Board is established and governed by section 152.1941 of the Human Resources Code and,
with certain exceptions, the general provisions in the Human Resources Code applicable to
all juvenile boards. See TEX. HUM. RES. CODE ANN. 5 152.1941 (Vernon 1990); see also id.
5 152.1941(g) (“Sections 152.0002, 152.0003, 152.0004, 152.0005, 152.0006, 152.0007, and
152.0008(a) do not apply to the juvenile board of Potter County.“). As a general rule, juvenile
boards of this state are statutorily created entities comprised of members designated by statute and
are entities with an existence separate and apart from their counties and commissioners courts. See
Tex. Att’y Gen. Op. Nos. JC-0085 (1999) at 2; DM-460 (1997) at 4-5. Furthermore, in the absence
of a statute to the contrary, a juvenile board may enter into contracts without commissioners court
approval. See Tex. Att’y Gen. Op. No. DM-460 (1997) at 6. The statute establishing the Potter
County Juvenile Board does not alter this relationship or provide the Commissioners Court with
special authority to approve the Board’s contracts. See TEX. HUM. RES. CODE ANN. 5 152.1941
(Vernon 1990).
Juvenile boards are authorized to establishjuvenileprobation departments to provide juvenile
probation services, see id. ch. 142 (Vernon 1990 & Supp. 2000), which are funded with both county
and state funds, id. $5 141.081, .084, 152.0012, .1941(c), (f) (Vernon 1990 & Supp. 2000); TEX.
Lot. GOV’T CODE ANN. $111.094 (Vernon 1999). State funds are allocated by the Texas Juvenile
Probation Commission. See TEX. HUM. RES. CODE ANN. ch. 141, subch. E (Vernon 1990 & Supp.
2000). State funding is dependent upon sufficient funding fiomthe county. See id. $5 141.082, .085
(Vernon Supp. 2000). Each county commissioners court in preparing the county budget is required
The Honorable Sonya Letson - Page 3 (JC-0209)
to determine the amount of county funds to be spent for the juvenile probation department in the
county budget. See TEX. LOC. GOV’T CODE ANN. 5 111.094 (Vernon 1999). Although a juvenile
board is required to submit the department’s budget to the commissioners court, see id. @140.004(c),
the latter’s authority over the budget is limited. A commissioners court has no authority to consider
or review the portion of the department budget funded with state funds but may review the portion
ofthe budget fundedwithcounty funds. SeeT~x. HUM. RES. CODE ANN. 5 152.0012 (Vernon Supp.
2000). Thus, a commissioners court’s role in the budgeting of the juvenile probation department is
limited to setting the dollar amount of county funds in the department’s budget and reviewing that
portion of the budget. See Tex. Att’y Gen. Op. Nos. JC-0085 (1999) at 2; DM-460 (1997) at 2-4.
This office has twice concluded that this statutory framework does not permit a
commissioners court to review expenditures from the funds of a juvenile probation department. See
Tex. Att’y Gen. Op. Nos. JC-0085 (1999) at 2-3; DM-460 (1997) at 2-4. Furthermore, because a
commissioners court has no supervisory authority over the juvenile board, this office has also
concluded that the court has no approval authority with respect to juvenile board expenditures: “‘[A]
requirement that the commissioners court review and approve juvenile board or department
expenditures is contrary to the board’s budgetary and financial independence.“’ Tex. Att’y Gen. Op.
No. JC-0085 (1999) at 3 (citing Tex. Att’y Gen. Op. No. DM-460 (1997) at 10). The Potter County
Commissioners Court has no special authority with respect to the Juvenile Board’s expenditures, see
TEX. HUM. RES. CODE ANN. $152.1941 (Vernon 1990), and the conclusions ofthese opinions apply
with equal force to the relationship between the Commissioners Court and the Juvenile Board.
With this background, we turn to your specific questions. First, you ask whether the Potter
County Juvenile Board “possess[es] legal authority to directly contract with private counsel for
representation of the juvenile board in a mandamus action brought against the board by Potter
County through the Potter County Commissioners Court.” Letter from Honorable Sonya Letson,
Potter County Attorney, to Honorable John Comyn, Texas Attorney General at 1 (Nov. 12, 1999)
(on file with Opinion Committee) [hereinafter “Request Letter”]. We conclude that the Juvenile
Board is authorized to retain private legal counsel to defend the Board in litigation filed against it
by the Commissioners Court.
Courts ofthis state have repeatedly recognized the implied authority ofpolitical subdivisions
to obtain legal counsel in the absence of constitutional and statutory limitations. See, e.g., Guynes
v. Galveston County, 861 S.W.2d 861, 863 (Tex. 1993) (”a commissioners court also possesses
broad implied powers to accomplish its legitimate directives. These powers include the authority
to contract with experts when necessary, including attorneys.“) (citations omitted); McCZintock &
Robertson v. Cottle County, 127 S.W.2d 319,321-22 (Tex. Civ. App.-Amarillo 1939, writ dism’d
judgmt car.). Furthermore, courts and this office have long recognized that political subdivisions
have common-law authority to employ counsel to provide legal representation for their officers and
employees in the absence of statutory limitations. See City of Corsicana v. Babb, 290 S.W. 736,737
(Tex. Comm’n App. 1927, holding approved); City Nat ‘1Bankv. Presidio County, 26 S.W. 775,777
(Tex. Civ. App. 1894, no writ); Tex. Att’y Gen. Op. No. JC-0047 (1999) at 2-3 (citing attorney
general opinions). The governing body of a political subdivision may employ counsel to defend its
The Honorable Sonya Letson - Page 4 (X-0209)
officers and employees if it believes in good faith that interests of the entity are at stake, even if an
officer or employee of the entity is sued individually. See Tex. Att’y Gen. Op. No. JC-0047 (1999)
at 2-3. Here, the Juvenile Board retained counsel to represent the Board in a dispute with the
Commissioners Court regarding control over the Board’s funding and in subsequent litigation filed
by the Commissioners Court against the Board in its officialcapacity. Given that the Juvenile Board
is a separate entity with the authority to contract independent of the Commissioners Court and no
statute precludes it from retaining private counsel, we conclude that the Juvenile Board possesses
the implied authority to contract with private counsel to represent the Board in litigation filed against
it by the Commissioners Court.
We answer your remaining questions together. You ask “what is the appropriate source of
funds for payment of the juvenile board’s counsel” and “[wlhat control, if any, does the
commissioners court possess over that funding source.” Request Letter, supra, at 1. We conclude
that the Juvenile Board has the authority to pay for its legal expenses from available juvenile
probation department funds without the approval of the Commissioners Court.
Again, each juvenile probation department in the state is funded with both state and county
funds. The commissioners court determines the amount of county funds that will be budgeted to the
juvenile probation department in each budget year. See TEX. LOC. GOV’T CODE ANN. 3 111.094
(Vernon 1999). The juvenile board prepares a budget for the juvenile probation department. See
id. 5 140.004(b)(2). The commissioners court may review only those portions of the juvenile
board’s budget funded with county funds. See TEX. HUM. RES. CODE ANN. 5 152.0012 (Vernon
Supp. 2000). After the juvenile probation department budget is finalized, a juvenile board must
expend funds according to the budget. Any budget amendments must be considered and approved
in a public meeting. See Tex. Att’y Gen. Op. No. JC-0085 (1999) at 3-4.
A commissioners court’s control over a juvenile probation department’s expenditures is
confined to this limited budget review before the commencement ofthe fiscal year. Ajuvenile board
or juvenile probation department is a “specialized local entity” under section 140.003 of the Local
Government Code. Pursuant to section 140.003, once the county funds budgeted for the juvenile
probation department are transferred to the department, they are deposited in a special account in the
county treasury, along with state funds allocated to the department. At this point, the funds become
funds of the juvenile probation department to be disbursed as directed by the juvenile board and lose
their character as county funds. See TEX. LOC. GOV’T CODE ANN. 5 140.003(f) (Vernon 1999)
(“Each specialized local entity shall deposit in the county treasury of the county in which the entity
has jurisdiction the funds the entity receives. The county shall hold, deposit, disburse, invest, and
otherwise care for the funds on behalf of the specialized entity as the entity directs.“). Although
disbursements from the account are subject to review and the approval of the county auditor, see
TEX. Lot. GOV’TCODEANN. 5 140.003(g)(Vemon 1999);Tex.Att’yGen. Op.No. DM-257 (1993)
(concluding that section 140.003(f) of the Local Government Code incorporates requirements of
county auditor budgetary oversight and countersignature), the commissioners court lacks authority
to review juvenile probation department expenditures, see Tex. Att’y Gen. Op. Nos. JC-0085 (1999)
at 3; DM-460 (1997) at 8.
The Honorable Sonya Letson - Page 5 (JC-0209)
You point out that the final settlement order in the litigation between the Potter County
Commissioners Court and the Juvenile Board provides that the Juvenile Board’s attorney’s fees shall
be paid by the Potter County Juvenile Board, but not by Potter County. See Order, sup-a, at 1. As
we have explained, funds on deposit in the juvenile probation department’s account in the county
treasury are not county funds. The Juvenile Board may pay its legal fees from available funds in this
account. Furthermore, it may do so without the approval of the Commissioners Court. If an
amendment to the juvenile probation department budget is required in order for the Juvenile Board
to disburse funds to pay its attorney’s fees, the Juvenile Board must amend the budget as provided
in section 140.004 ofthe Local Government Code. See Tex. Att’y Gen. Op. No. JC-0085 (1999) at
3-4.
The Honorable Sonya Letson - Page 6 (X-0209)
SUMMARY
The Potter County Juvenile Board is authorized to contract
with an attorney to represent it in litigation. The Juvenile Board may
pay its attorney’s fees with funds in the juvenile probation department
account in the county treasury without the approval of the Potter
County Commissioners Court.
Attorney General of Texas
ANDY TAYLOR
First Assistant Attorney General
CLARK RENT ERVIN
Deputy Attorney General - General Counsel
ELIZABETH ROBINSON
Chair, Opinion Committee
Mary R. Crouter
Assistant Attorney General - Opinion Committee