# The Attorney General of Texas

October 0. 1080, MARK WHITE AttorneyGeneral

Honorable Tom Curtis District Attorney 47th Judicial District Amarillo, Texas 79101 Opinion No. ~+252
Re: Authority of county to pay court costs incurred by a district attorney Dear Mr.Curtis:
You ask whether Potter County has authority to pay court costs for the transcript, statement of facts, and filiq fee adjudged against the district attorney of the 47th Judicial District in Southwestern Newspapers Corporation v. Curtis, 584 S.W. 2d 362 (Tex. Civ. App. -Amarillo 1979,no writ), and filing fees advanced by him inthe related case, Curtis 588 S.W. 2d 687 (Tex. Civ. App.-Amarillo 1979,no writ). The suit srose out ofthe district attorney’s decision to deny aparticular newspaper access to official news sources in his office without an appointment. See Attorney General Opinion MW-158(1980). -
Several opinions of this office have considered whether a governing body has authority to hire attorneys to defend public officials or employees against suits arising out of their public duties. See Attorney General Opinions H-887 (1976);H-544 (1975);H-70 (1973). Wexlieve the standards articulated inthese opinions also govern whether court costs and filing fees may bepaid Attorney General Opinion H-70 (1973)concerned the purchase at public expense ofliability ilrrurance to protect school trustees against the costs of litigation growing out of the discharge oftheir official duties. The opinion stated asfollows:

Where a Texas governing body believes in good faith that the public interest is at stake, even though an officer is sued indivi&ally, it is permissible for the body to employ attorneys to defend the action..

.. The propriety ofsuch a step is not made dependent upon the outcome of the litigation, but r.g~on

the bona fide6 of the governing body’s motive.

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This rationale was followed in Attorney General Opinion H-544 (1975) which determined that the commissioners court may pay the legal expenses of ajudge in defending alawsuit which arose out ofhis conducting acourt ofinquiry. Although the county wasnot obligated to pay such expenses, it could dosoifit determined it wasin the county’s interest to pay them. Attorney General Opinion H-887 (1976)stated that a general law city could hire an attorney to defend a city official or employee against lawsuits arising out ofactions taken within the scope ofhispublic duties.
In Letter Advisory No. 24 (19731,this office considered the constitutionality of article 332c, V.T.C.S., then pending legislation. This statute provides for the defense of county officials and employees by district or county attorneys or by county-paid private counsel, incertain lawsuits brought against them bynon-political entities. The letter advisory found the statute constitutional if limited “to those circumstances where the interest of the county, not in confiict with those of the state, are at stake, and where there isa good faith showing that the individual sued was acting within the scope ofhis authority inthe performance ofpublic duties.”
We believe the county may pay the costs you inquire about if it reasonably believes its interest is at stake, and ifthe district attorney sued wasacting within the scope of his authority in the performance ofpublic duties. If this showing ismade, we believe the county would have implied authority to pay these expenses under article 332a, V.T.C.S., which authorizes the county to pay the expenses incident to the operation of the district attorney’s office. Whether the action giving rise to the lawsuits was within the scope of the district attorney’s authority is a fact question which cannot beresolved inthe opinion process. See Attorney General Opinion H-887 (1976). The county must resolve this inaccordancewith the guidelines set forth inthis opinion. Of course, it is possible that some or all of these fact questions may be addressed bythe trial court when it considers the case onremand.
You also ask whether the county is required bylaw to pay these court costs or filing fees. We find no statute which requires the county to pay these expenses. Although article 332c, V.T.C.S., requires that legal representation be provided for county officials or employees sued byanon-political entity, this statute &es not apply to district offices. See Attorney General Opinion H-656 (1975)(district attorney is district, not county, o??%er).
You finally ask whether the State ofTexas is required by law to pay the court costs and filing fees incurred by the district attorney. Article 6252-26, V.T.C.S., makes the state liable for actual damages, court costs and attorney fees adjudged against officers or employees of any agency, institution or department of the state. It isunnecessary to determine ifarticle 6252-26 wouldapply inthe case ofasuit against a district attorney, since the state has no liability unless the Attorney General has been given an opportunity to &fend the suit asrequired bysection 3thereof. Nosuch request was made here. Consequently, article 6252-26 does not entitle him to court costs.

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SU MMAR’Y
Potter County has the authority to pay court costs adjudged against the district attorney and filing fees advanced by him in connection with a lawsuit against him if the county reasonably believes its interest is at stake and if the lawsuit arose out of actions taken by the district attorney in the performance ofhis public duties. Neither the county nor the state is required by law to pay the district attorney’s court costs and filing fees.

MARK WHITE Attorney General ofTexas
JOHN W.FAINTER, JR. First Assistant Attorney General
RICHARD E.GRAYIII Executive Assistant Attorney General Prepared bySusan Garrison Assistant Attorney General
APPROVED: OPINION COMMlTTEE
Susan Garrison, Acting Chairman Jon Bible Walter Davis Risk Gilpin Bruce Youngblood

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