Untitled Texas Attorney General Opinion

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The Attormy General of Texas
.iugust31. 1984
JIM MATTOX
Attorney General
Supreme Court Bulldlng Honorable Thomas H. Fowler Opinion No. JM-197
P. 0. Box 12548
Austin, TX. 78711. 2548
District and Count],Attorney
512/475.2501 Red River County Re: Application of article
Telex 9101874-1387 P. 0. Box 822 6252-26. V.T.C.S., to county
Telecopier 51214750266 Clarksville, Texas 75426 attorneys with felony responsi-
bility
714 Jackson, Suite 700
Dallas. TX. 752024503 Dear Mr. Fowler:
21417428944
You have askeclwhether county attorneys having responsibility for
felony prosecutionr: are "officers or employees of any agency,
4824 Alberta Ave., Suite 160
El Paso, TX. 799052793
institution, or depr.rtmentof the state" within the meaning of article
915/533-3484 6252-26, V.T.C.S.
Article 6252-:!t~
reads in pertinent part:
,c,Wl Texas, Suite 700
muston, TX. 77002.3111
Sectiw 1. (a) The State of Texas is liable
713223.5886
for and &all pay actual damages, court costs, and
attorney fees adjudged against officers or
606 Broadway, Suite 312 employee0 of any agency, institution, or
Lubbock, TX. 79401.3479 department: of the state . . . where the damages
ao8/747-5238
are based on an act or omission by the person in
the tours? and scope of his office, contractual
4309 N. Tenth, Suite B performanc:e, or employment for the institution,
McAllen, TX. 78501.1685 department:,or agency and:
512/882-4547
(1: the damages arise out of a cause of
200 Main Plaza. Suite 400 action for negligence, except a willful or
San Antonio, TX. 782052797 wronglit act or an act of gross negligence; or
512/2254191
(2: the damages arise out of a cause of
An Equal Opportunity/
action for deprivation of a right, privilege,
Affirmative Action Employer or immunity secured by the constitution or laws
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 ojiany defense, immunity, or jurisdictional
p. 866
Honorable Thomas H. Fowler '-Page 2 (JM-197)
bar available 'c.3the 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.e6252-26, 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:therarticle 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:loughsupervised 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!rsare state officers in a certain sense, a
p. 867
Honorable Thomas H. Fowler -.Page 3 (JM-197)
statute that expressly appl.j.edto "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..:!6in 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::onsby 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
p. 868
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.
J-h
Very truly yours
JIM
L
MATTOX
Attorney General of Texas
TOM GREEN
First Assistant Attorney Ge~lrral
p. 869
Honorable Thomas H. Fowler - :?age5 (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
p. 870