Judges: JIM MATTOX, Attorney General of Texas
Filed Date: 11/23/1987
Status: Precedential
Modified Date: 7/6/2016
Honorable Thomas B. Sehon Falls County District Attorney Falls County Courthouse Marlin, Texas 76661
Re: Authority of a county to provide legal counsel for a sheriff and district attorney sued in their official capacities (RQ-1024)
Dear Mr. Sehon:
You ask two questions prompted by a federal lawsuit brought by a member of the Falls County Commissioners Court against you, both individually and in your capacity as district attorney. The suit, which alleges violations of federally protected civil rights, malicious prosecution, libel, and slander, seeks damages of $500,000. The suit also names as a defendant, in both an individual and official capacity, the Falls County sheriff. Your questions are:
(1) Under the provisions of section
157.061 of the Local Government Code, formerly article 332c, V.T.C.S., is Falls County required to provide legal counsel for the sheriff and the district attorney to defend them against a lawsuit filed by a member of the commissioner's court?(2) By virtue of section
81.002 of the Local Government Code, formerly article 2340, V.T.C.S., is the county commissioner who brought the suit disqualified from (a) voting on the hiring of an attorney to defend the officials he has sued and (b) from participating in meetings about the lawsuit conducted between the commissioner's court and the attorney hired to defend the county officials?
Falls County is obligated to provide legal counsel to the county attorney and sheriff if the commissioners court decides that the suit involves the public interest. Local Gov't Code §
Where a Texas governing body believes in good faith that the public interest is at stake, even though an officer is sued individually, it is permissible for the body to employ attorneys to defend the action. . . . The propriety of such a step is not made dependent upon the outcome of the litigation, but upon the bona fides of the governing body's motive.
Attorney General Opinions
We emphasize that the authority of the county to employ attorneys to defend county officers and employees is limited to situations where the legitimate interests of the county — 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. Attorney General Opinions
Thus, the question of the lawfulness of expending public funds to protect the public interest in a suit brought against a public official or employee will always be a question of fact. The question that the commissioners must decide is whether or not the suit really is one that concerns the interests of the county or whether the benefits provided by public funds accrue only to the personal benefit of the public official or employee represented at taxpayers' expense. We do not make determinations of fact in the process of issuing an opinion; that responsibility in this kind of question must rest with the judgment of the county commissioners who must vote whether to expend public funds in a particular case.
Such a decision does not have to conclude that the county officer must have been right, or that the suit ultimately must be defeated. The county need only determine that the public servant of the county acted in good faith within the scope of an official duty. City National Bank of Austin v. Presidio County,
You suggest that section
LEGAL DEFENSE OF EMPLOYEES. (a). A county official or employee sued by a nonpolitical entity 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 necessary 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.
(c) A county official or employee is not required to accept the legal counsel provided in this section.
(d) In this section, `nonpolitical entity' means an individual, firm, corporation, association, or other private entity. It does not include the state, a political subdivision of the state, a city, a special district, or other public entity.
This statute, adopted by the legislature in 1973 and placed in the Local Government Code by a nonsubstantive revision in 1987, is declaratory of at least a part of the common-law rule referred to above.1 See generally Attorney General Letter Advisory No. 24 (1973). We do not understand the statute to repeal or supplant the common-law rule. At the least, the provisions strengthen the rule by entitling a public servant to a defense provided by the county in a certain class of cases. As such, it can be construed to harmonize with the existing common-law rule, Freels v. Walker,
As an express condition for the application of section 157.061, the suit against the public servant must be instituted by a "non-political entity," meaning an individual, firm, corporation, association, or other private entity. It does not include the state, a political subdivision of the state, a city, a special district, or other public entity.
Local Gov't Code §
A single county commissioner has no authority to bring suit in the name of the county. A county is
manifestly a unit, and is the agency of the whole county. The respective members of the commissioners court are therefore primarily representatives of the whole county, and not merely representatives of their respective precincts. The duty of the commissioners court is to transact the business, protect the interest, and promote the welfare of the county as a whole.
Stovall v. Shivers,
We also note that subsection (b) of section 157.061 may apply in this case. That provision provides, in part, that:
If additional counsel is necessary or proper in the case of an official or employee provided legal counsel . . . the official or employee is entitled to have the commissioners court of the county employ and pay private counsel. (Emphasis added.)
Local Gov't Code, § 157.061(b). In the usual case under section 157.061, the defense of a public servant is to be undertaken by the county attorney, the district attorney, or both. Obviously, you, as the district attorney, cannot be expected, on prudential grounds, or otherwise, to defend yourself. Nor may you, as a formal matter of legal ethics, represent your co-defendant, something that would otherwise be your duty under section
You also ask whether the county commissioner bringing the suit is (a) disqualified from voting on questions concerning the hiring and payment by the commissioners court of an attorney to defend the public officials he has sued and (b) disqualified from participating in meetings about the lawsuit which might be conducted between the commissioners court and the private attorney hired to handle the suit. You suggest that section
Section 81.002 requires, in part, that a county commissioner take an oath to abjure certain actions likely to promote so-called "conflicts of interest." The precise purpose of the provision is to eliminate the possibility of any pecuniary gain from the county by those who manage its affairs — in the case of "contracts with" or "claims against" the county. See generally Bexar County v. Wentworth,
Members of the commissioners court must avoid acquiring or furthering an interest in any contract with the county. Attorney General Opinions H-624 (1975); H-329 (1974).
In the instant case, one member of the commissioners court, acting solely as a private citizen, is suing the county attorney and the sheriff. The commissioners court must decide whether or not to enter into a contract with a private attorney to provide for the legal defense of the two county officials. Such a contract will not result in the possibility of any direct pecuniary gain by the commissioner bringing the suit, because he will not be either a party or a beneficiary of its execution. Only the lawyer engaged pursuant to the contract will receive money from the county, and only the public officials he will defend will be beneficiaries of the contract.
Nor, logically, can the contract result in the possibility of an indirect gain by the commissioner bringing the suit. The only purpose of the contract to engage a lawyer is to defeat the commissioner's expectations of winning a lawsuit and receiving a consequent award of damages from the public officials he is suing. The commissioner bringing the suit has only a non-pecuniary interest in the contract; he hopes the efforts of the attorney hired pursuant to the agreement will come to naught and that his cause will prevail.
In fact, it is clear that Section
In no previous case has the prohibition against a county commissioner having an interest in a contract been applied to a situation where funds expended by the county pursuant to the contract could not go to a commissioner, either directly or indirectly. Thus, here, while it is correct to say that the county commissioner bringing suit is "interested" in a contract between the county and attorney engaged to defend the public officials he is suing, his interest is not specifically of the kind brought within the prohibitions of section 81.002. The letting of the contract to hire a lawyer cannot possibly influence the way the commissioner deals with the official business of the county, and will not later give rise to a possibility that the commissioner will be influenced by a personal pecuniary interest should the contract go awry. See Polk v. Roebuck,
Nevertheless, public policy in Texas forbids a public official from casting a deciding vote in a matter concerning an issue in which he has a direct, adverse interest. If, by such a single vote, a public official can prevent an otherwise proper decision by the commissioners court that it is in the public interest to employ and pay for counsel to defend a public official in a legal action, then the official is barred from voting. In Hager v. State ex. rel TeVault,
Thus, this rule is bottomed on principles different from those concerning the common law conflict-of-interest doctrine. A decision by a county commissioner to employ and pay counsel to defend a public official or employee at county expense is a quasi-judicial act. A county commissioner acts in a quasi-judicial capacity "when, in the exercise of his functions, he is required to pass upon facts and determine . . . action[s] by the facts found." Kirby Lumber Co. v. Adams,
You also ask whether the county commissioner bringing the suit may be excluded from meetings of the commissioners court where discussions are held between the commissioners and the attorney they employ to defend the public officials being sued. The analysis of your question is best approached by considering the nature of the relationship established by the use of public funds to defend suits against public officials and employees. The attorney representing a public official or employee has as a client the official or employee named as a defendant, not the county. In other words, the county is not a client and, as such, it may not be privy to the confidences shielded by the attorney-client privilege recognized in the law. For if the county and the public servant are both clients of the same lawyers, then conflicts of interest may arise. In such an instance, the public servant provided with representation may suffer serious adverse consequences. Thus, the lawyer representing the public official or employee must retain in confidence all of the privileged aspects of the representation of the public official or employee who is the client. See, e.g., Supreme Court of Texas, Rules Governing the State Bar of Texas, art. XII, § 8 (Code of Professional Responsibility), DR 4-101 (1973); Texas Rule of Evidence 503. Cf. Attorney General Opinion
The attorney defending the public servant may not, except as provided by law, discuss privileged aspects arising out of the representation provided with anyone other than the client. The county, per se, is not a client; consequently, there should be no occasion for the county commissioner bringing suit to attend any discussion of the aspects of the case subsumed by the privileged lawyer-client relationship. The commissioners court may not hold such discussions so long as a proper assertion of the attorney-client privilege is before them.
Very truly yours,
Jim Mattox Attorney General of Texas
Mary Keller Executive Assistant Attorney General
Judge Zollie Steakly Special Assistant Attorney General
Rick Gilpin Chairman Opinion Committee
Prepared by Don Bustion Assistant Attorney General
Freels v. Walker , 120 Tex. 291 ( 1930 )
Hager v. State Ex Rel. TeVault , 446 S.W.2d 43 ( 1969 )
Hill Farm, Inc. v. Hill County , 425 S.W.2d 414 ( 1968 )
State v. Averill , 110 S.W.2d 1173 ( 1937 )
City of Del Rio v. Lowe , 111 S.W.2d 1208 ( 1937 )