The Attorney General of Texas 

October 0. 1080, 

MARK WHITE 

Attorney General 

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 in the related case, Curtis 

588 S.W. 2d 687 (Tex. Civ. App. - Amarillo 1979, no writ). The suit srose 

out of the district attorney’s decision to deny a particular 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 in these opinions also govern whether court costs and filing fees 

may be paid 

Attorney General Opinion H-70 (1973) concerned the purchase at public 

expense of liability ilrrurance to protect school trustees against the costs of 

litigation growing out of the discharge of their official duties. The opinion 

stated as follows: 

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 of such 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. 

p. 793 
Honorable Tom Curtis - Page Two @M-252) 

This rationale was followed in Attorney General Opinion H-544 (1975) which 

determined that the commissioners court may pay the legal expenses of a judge in 

defending a lawsuit which arose out of his conducting a court of inquiry. Although the 

county was not obligated to pay such expenses, it could do so if it determined it was in 

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 of actions taken within the scope of his public 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, in certain lawsuits brought against them by non-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 is a good faith showing that the individual sued was acting within the 

scope of his authority in the performance of public duties.” 

We believe the county may pay the costs you inquire about if it reasonably 

believes its interest is at stake, and if the district attorney sued was acting within the 

scope of his authority in the performance of public duties. If this showing is made, 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 be resolved in the opinion process. See Attorney General Opinion H-887 

(1976). The county must resolve this in accordancewith the guidelines set forth in this 

opinion. Of course, it is possible that some or all of these fact questions may be 

addressed by the trial court when it considers the case on remand. 

You also ask whether the county is required by law 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 by a non-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 of Texas 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 

is unnecessary to determine if article 6252-26 would apply in the case of a suit against 

a district attorney, since the state has no liability unless the Attorney General has 

been given an opportunity to &fend the suit as required by section 3 thereof. No such 

request was made here. Consequently, article 6252-26 does not entitle him to court 

costs. 

p. 794 
. . 

-. . 

Honorable Tom Curtis - Page Three (MI-2521 

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 of his 

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 of Texas 

JOHN W. FAINTER, JR. 

First Assistant Attorney General 

RICHARD E. GRAY III 

Executive Assistant Attorney General 

Prepared by Susan Garrison 

Assistant Attorney General 

APPROVED: 

OPINION COMMlTTEE 

Susan Garrison, Acting Chairman 

Jon Bible 

Walter Davis 

Risk Gilpin 

Bruce Y oungblood 

p. 795