July 15, 1987 

ax .3Lm”rox 

xlTo~NEY GSZSERAI. 

r‘ 

Honorable Rex N. Leach 

District Attorney 

Limestone County Courthouse 

200 West state street 

Groesbeck, Texas 76642 

Opi~+ No. JM-755 

Re: Authority of a county to 

provide legal counsel for a 

sheriff in certain legal proceedings 

Dear Mr. Leach: 

You ask about the duty of a county to pay for a private attorney 

representing a sheriff in certain legal proceedings. You state the 

facts which prompt your request as follows: 

The district judge issued’ a subpoena to the 

sheriff for certain documents related to a Court 

of Inquiry called by the court. Some. questions 

developed as to whether the proper procedure had 

been followed by the district judge in issuing the 

subpoena. The district judge then found the 

sheriff in contempt for failing to comply with the 

subpoena and issued a writ of attachment for the 

sheriff ordering him jailed. The Court of Appeals 

then granted a vrit of habeas corpus. The 

district judge then issued a new subpoena for the 

same documents which was finally complied with by 

the sheriff. 

You relate, without providing details, that the Court of Inquiry 

concerned “an incident at, and the operation of, the county jail.” 

You note that “[dluring the scenario, the sheriff was represented by 

outside legal counsel.” 

A sheriff is an officer of the county. Tex. Const. art. V, §23; 

cf. Tex. Const . art. V, 824; Attorney General Opinion M-726 (1970). 

We have on several occasions considered whether a public body, such as 

* county, may provide for legal counsel to defend public officers and 

employees subjected to litigation in the course of their public 

duties. A general rule can be distilled from our diverse opinions: 

Where a Texas governing body believes in good 

faith that the public interest is at stake, even 

p. 3518 
Honorable Rex N. Leech - Page 2 (~~-755) 

though en 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 bone fides of the governing body's motive., 

Attorney General Opinion Nos. MW-252 (1980); H-70 (1973); see also 

Attorney General Opinion Nos. H-887 (1976); H-544 (1975); M-726 

(1970); Attorney General Letter Advisory No. 24 (1973), and the many 

ceses cited in those opinions. See also City of Corsicena V. Babb, 

290 S.W. 736 judgm't adopted (Tex. Corn''' App. 1927); see generally 

Annot. 130 A.L.R. 736 (1941). 

The authority of the county to employ attorneys to defend county 

officers end 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 county. Attorney General Opinion H-887 

(1976). The county may not use public funds when the principal 

interest to be defended is a purely private one. Attorney General 

Opinion M-726 (1970); cf. City of Del Rio V. Lowe, 111 S.W.2d 1208, 

1219 (Tex. Civ. App. -G Antonio 1937). rev'd on other grounds, 122 

S.W.2d 191 (Tex. 1938); State V. Averill, 110 S.W.2d 1173 (Tex. Civ. 

APP. - San Antonio 1937, writ ref'd). 

Thus. the question of the lawfulness of expending public funds 

for en attorney to defend the interests of a county in a suit brought 

against e public official will always be a question of fact. The 

question to be decided is whether or not the suit really is one that 

concerns the interests of the county, or whether the benefits provided 

by public funds eccrue only to the personal interest of the public 

official or employee represented et taxpayers' expense. We do not 

make determinations of fact in the process of issuing en opinion; that 

responsibility in this kind of question must rest with the seasoned 

judgment of the county commissioners who must vote whether to expend 

public funds in a particular case. The nature of the proceedings 

must, of course, be considered carefully in determining the existence 

of a county's legitimate interest. 

This does not mean that the county officer must have been right, 

or that the suit must be defeated. The county only need determine 

that the nublic servant of the countv acted in nood faith within the 

scope of an official duty. City Na&onal Bank if Austin V. Presidio 

County, 26 S.W. 775 (Tex. Civ. App. 1894); Attorney General Opinion 

M-726 (1970). 

You suggest that article 332~. V.T.C.S., requires the county to 

pay for private counsel for the sheriff. Article 332~ provides: 

p. 3519 
Honorable Rex N. Leach - Page 3 (JM-755) 

Sec. 1. In this Act, 'nonpolitical entity' 

means. any person, firm, corporation, association. 

or other private entity, end does not include the 

state, a political subdivision of the state, e 

city, a special district, or other public entity. 

Sec.. 2. In any suit instituted by a nonpolitical entity against an official or employee 

of a county, the district attorney of the district 

in which the county is situated or the county 

attorney, or both, shell, subject to the provisions contained in Section 3, represent the 

official or employee of the county if the suit 

involves any act of the official or employee while 

in the performance of public duties. 

Sec. 3.. If additional counsel is necessary or 

proper for an official or employee provided legal 

counsel by Section 2 of this Act 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 county 

connnissioners court shall employ end pay private 

counsel. 

Sec. 4. Nothing in this Act requires a county 

official or employee to accept the legal counsel 

provided for him in this Act. 

This statute. adopted by the legislature in 1973, is declafatory 

of et least a part of the common-law rule referred to above. 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. it strengthens the rule by requiring e county to defend a 

public servant in a certain class of cases. As such, it can be 

construed to harmonize with the existing common-law rule, Freels v. 

Walker, 26 S.W.2d 627, opinion adopted (Tex. Comm'n App. 1930), even 

though the statute does not occupy the whole of the ground embraced by 

the common-law rule. The statute does not -- and cannot -- repeal the 

implied condition that a legitimate interest of the county must be 

involved. Attorney General Letter Advisory No. 24 (1973). 

1. Section 2 of article 332~ requires the county or district 

attorney, or both to defend the public servant, except in certain 

cases specified in section .three of the statute. Prior to the 

adoption of article 332c, county end district attorneys had no such 

duty. 

p. 9520 
Honorable Rex N. Leech - Page 4 (JM-755) 

Article 332~ simply does not apply to the facts presented in your 

request. The imbroglio in which the sheriff became entangled was 

rooted in the proceedings of a court of inquiry celled by a district 

court judge pursuant to article 51.02 of the Code of Criminal 

Procedure. Assuming, solely for the sake of argument, that the 

proceedings of a court of inquiry constitute a "suit" within the 

meaning of that term as employed in article 332c, it is clear that 

such a "suit"'is not within the purview of article 332~. By its plain 

terms, the article applies 9 to suits instituted by non-political 

entities. A district court manifestly is a political entity, for the 

court is an agency of the sovereign, the ultimate political entity. 

Isbill V. Stovall. 92 S.W.2d 1067 (Tex. Civ. App. - Eastland 1936, no 

writ). A district court judge discharging the duties lawfully 

assigned to court is acting for the "political entity." See Ex pate 

Lowery, 518 S.W.2d 897 (Tex. Civ. App. - Beaumont 1975, nowrit). 

You suggest that article 332~ nevertheless applies because of 

certain language in section 3 of the statute. There, the county is 

commended to provide private counsel to an officer or employee "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. . . .II You note that in the situation et hand the sheriff 

was the subject of a writ of attachment end thus was threatened with 

imprisonment for a contempt of the court of inquiry. You ponder 

whether the contempt citation end consequent writ of' attachment ? 

constituted a criminal charge. You also suggest that the court of 

inquiry constituted a criminal investigation of the sheriff. 

We need not decide these points because the clear language of the 

statute places this entire episode outside of the embit of the 

legislature's command that counties furnish legal counsel to public 

servants in certain instances. All of the parts of article 332~ must 

be reed together, end the whole of the statute must be harmonized with 

the paramount purpose of the law. See 53 Tex. Jur. 2d 5160 (1964) end - 

cases cited thereunder. 

Applying this canon to article 332c, it is simply impossible to 

reed the phrase in section 3 -- "if it reasonably appears that the act 

complained of may form the basis for the filing of a criminal char2 

-- to refer to "ects" other then those specified in a suit instituted 

by a non-political entity, es referenced in section 2 of the statute. 

To read the language in section 2 to create an independent basis of 

authority ~to furnish legal assistance et public expense would be 

contrary to both the purpose and tenor of the statute. 

Article 332~. like the common-law rule it codifies in part, 

belongs to that narrow class of the laws which permits public funds to 

be spent for the indirect private benefit of certain persons because 

an important public interest predominates. See Tex. Const. art. III, 

§§51, 52. The evident policy of article 3%-c, like the connnon-law ? 

p. 3521 
Honorable Rex N. Leech - Page 5 UM-755) 

rule which we discussed above, is to provide a modicum of repose for 

the public servents of the county in the case of suits brought by 

private parties. The suits must concern events occurring during the 

course of the public servant's performance of public duties within the 

scope of the authority of the public office or position. Attorney 

General Letter Advisory No. 24 (1973). We suppose that it is not 

unknown for such suits, on some occasions, merely to be vexatious, and 

perhaps even wholly mischievious. The suits are initiated by persons 

whose judgment end motive are sometimes unfathomable. The purely 

private decision to sue a public servant is not subject to the 

checks-end-balances so much a pert of the nature and functioning of a 

political entity in its day-to-day operations. Public servants 

subject to suits by private parties for official acts are apt to be 

distracted from their duties by the litigation, end concommitant 

worries about meeting the costs of a le~gal defense. Fear of boundless 

litigation, especially if it proves to be frivolous after e lengthy 

end expensive process, may make public servants timid in,the discharge 

of their duties. Article 332~ obviously re-enforces the common-law 

rule to deal with these problems, to the extent specified by the 

legislature end permitted by the constitution. 

Accordingly, all of this statute must be reed in light of its 

principal, if limited, purpose. 

SUMMARY 

A county may expend public funds for the 

employment of private attorneys to represent 

county officials and employees who have been sued 

in their official end individual capacities if the 

suit involves en action of the official or 

employee within the scope of the official's or 

employee's authority in the performance of public 

duties, and if the county commissioners believe in 

good faith that the public interest is et stake. 

Whether or not expending public funds to defend 

the county official or employee is proper is 

always a matter of fact. Article 332c, V.T.C.S., 

which is merely declaratory of a pert of the 

common law, end which provides that in suits 

initiated by non-political entities county officials end employees are due legal representation 

at public expense does not apply to any of the 

incidents of a legal proceeding instituted by a 

political entity, including a district court judge 

conducting e court of inquiry pursuant to article 

52.01 of the Court of Criminal Procedure. 

p. 3522 
Honorable Rex N. Leach - Page 6 (~~-755) 

Very I truly your 

JIM MATTOX 

Attorney General of Texas 

MARY KELLER 

Executive Assistant Attorney General 

JUDGE ZOLLIE STEAKLEY 

Special Assistant Attorney General 

RICK GILPIN 

Chairman, Opinion Comittee 

Prepared by Don Bustion 

Assistant Attorney General 

-, 

p. 3523