Judges: JIM MATTOX, Attorney General of Texas
Filed Date: 8/31/1984
Status: Precedential
Modified Date: 7/6/2016
Honorable Thomas H. Fowler District and County Attorney Red River County P.O. Box 822 Clarksville, Texas 75426
Re: Application of article 6252-26, V.T.C.S., to county attorneys with felony responsibility
Dear Mr. Fowler:
You have asked whether county attorneys having responsibility for felony prosecutions are "officers or employees of any agency, institution, or department of the state" within the meaning of article 6252-26, V.T.C.S.
Article 6252-26 reads in pertinent part:
Section 1. (a) The State of Texas is liable for and shall pay actual damages, court costs, and attorney fees adjudged against officers or employees of any agency, institution, or department of the state . . . where the damages are based on an act or omission by the person in the course and scope of his office, contractual performance, or employment for the institution, department, or agency and:
(1) the damages arise out of a cause of action for negligence, except a willful or wrongful act or an act of gross negligence; or
(2) the damages arise out of a cause of action for deprivation of a right, privilege, or immunity secured by the constitution or laws of this state or the United States, except when the court in its judgment or the jury in its verdict finds that the officer, contractor, or employee acted in bad faith.
(b) This Act shall not be construed as a waiver of any defense, immunity, or jurisdictional bar available to the state or its officers, contractors, or employees. . . .
. . . .
Sec. 5. A member of the commission, board, or other governing body of an agency, institution, or department is an officer of the agency, institution, or department for purposes of this Act.
The provision of section 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 "officer" category, in our opinion. See Educ. Code §
This office found it unnecessary in Attorney General Opinion
The term "state officer" 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, to mean one who receives his authority under the laws of the state. Ex parte Preston,
In Travis County v. Jourdan, supra, the state supreme court held that although county officers are state officers in a certain sense, a statute that expressly applied 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 mention 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 1979, coupled with the amendment and virtual reenactment of article 6252-26 in 1981, leads to a similar conclusion. See Acts 1979, 66th Leg., ch. 744 at 1830; Acts 1981, 67th Leg., ch. 553 at 2274.
Article 6252-19b, enacted four years after the original enactment of article 6252-26, expressly applies only to current and former officers and employees of "a county, city, town, special purpose district, or any other political subdivision of this state," and provides that such governmental units "may pay actual damages, court costs and attorney's fees" adjudged against their servants if damages are based on acts or omissions 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
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 one another and were enacted at different times; they will be read and construed together as though they were parts of one law. See 53 Tex.Jur.2d Statutes § 186 at 280. When article 6252-19b and 6252-26 are read together, it seems apparent that article 6252-19b was intended 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 6252-26 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 any damages, costs or fees; it says the political subdivision may do so. Article 6252-19b is also more restricted in its scope. See Attorney General Opinion
We are aware that language in the federal case of Loftin v. Thomas,
Although federal courts have concluded that prosecuting attorneys act as agents for the state rather than for the county in their prosecutorial functions, see Crane v. Texas,
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, V.T.C.S.
Very truly yours,
Jim Mattox Attorney General of Texas
Tom Green First Assistant Attorney General
David R. Richards Executive Assistant Attorney General
Prepared by Bruce Youngblood Assistant Attorney General
Buddy J. Loftin v. Carl Thomas, Sheriff , 681 F.2d 364 ( 1982 )
Harris County Commissioners Court v. Moore , 95 S. Ct. 870 ( 1975 )
Bexar County v. Linden , 110 Tex. 339 ( 1920 )
Ex Parte Preston , 72 Tex. Crim. 77 ( 1913 )
Travis County v. Jourdan , 91 Tex. 217 ( 1897 )
Jernigan v. Finley , 90 Tex. 205 ( 1896 )