j . . 

P 

JIM MATTOX 

Attorney General 

The Attormy General of Texas 

.iugust 31. 1984 

Supreme Court Bulldlng 

P. 0. Box 12548 

Austin, TX. 78711. 2548 

512/475.2501 

Telex 9101874-1387 

Telecopier 51214750266 

Honorable Thomas H. Fowler 

District and Count], Attorney 

Red River County 

P. 0. Box 822 

Clarksville, Texas 75426 

Opinion No. JM-197 

Re: Application of article 

6252-26. V.T.C.S., to county 

attorneys with felony responsibility 

714 Jackson, Suite 700 

Dallas. TX. 752024503 Dear Mr. Fowler: 

21417428944 

You have askecl whether county attorneys having responsibility for 

4824 Alberta Ave., Suite 160 

felony prosecutionr: are "officers or employees of any agency, 

El Paso, TX. 799052793 institution, or depr.rtment of the state" within the meaning of article 

915/533-3484 6252-26, V.T.C.S. 

,c,Wl Texas, Suite 700 

Article 6252-:!t~ reads in pertinent part: 

muston, TX. 77002.3111 

713223.5886 

606 Broadway, Suite 312 

Lubbock, TX. 79401.3479 

ao8/747-5238 

4309 N. Tenth, Suite B 

McAllen, TX. 78501.1685 

512/882-4547 

Sectiw 1. (a) The State of Texas is liable 

for and &all pay actual damages, court costs, and 

attorney fees adjudged against officers or 

employee0 of any agency, institution, or 

department: of the state . . . where the damages 

are based on an act or omission by the person in 

the tours? and scope of his office, contractual 

performanc:e, or employment for the institution, 

department:, or agency and: 

200 Main Plaza. Suite 400 

San Antonio, TX. 782052797 

512/2254191 

An Equal Opportunity/ 

Affirmative Action Employer 

(1: the damages arise out of a cause of 

action for negligence, except a willful or 

wronglit 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 th::rl state or the United States, except when 

the c>xt in its judgment or the jury in its 

verdict: finds that the officer, contractor, or 

employee acted in bad faith. 

(b) ::hls Act shall not be construed as a 

waiver oji any defense, immunity, or jurisdictional 

p. 866 
Honorable Thomas H. Fowler '- Page 2 (JM-197) 

bar available 'c.3 the state or its officers, 

contractors, or erqloyees . . . . 

. . . . 

Sec. 5. A member of the commission, board, or 

other governing bDiy of an agency, institution, or 

department is iul officer of the agency, 

institution, or department for purposes of this 

Act. 

The provision of sectim 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 "of1'icer" category, in our opinion. See Educ. 

Code $65.42. But we do n#x think county attorneys, whetherr not 

they have responsibility Jior prosecuting felonies, are officers or 

employees of a state agency, institution or department of the state 

within the meaning of artic1.e 6252-26, V.T.C.S. See Attorney General - 

Opinion B-1160 (1978). 

This office found it unnecessary in Attorney General Opinion 

MW-252 (1980) to decide whe:ther article 6252-26 would apply to a suit 

against a district attorne, 1) because required procedural steps had not 

been taken. But In Attoxey General Opinion H-1160 (1978), after 

reviewing the history of the! provision, it was noted that the caption 

of the act, as amended ir. 1977, stated that the act related to 

"defense of claims based on certain conduct of state officers or 

employees." See Acts 1977: 65th Leg., ch. 273 at 730. Consequently, 

federal technicians, even t:lough supervised by an officer of a state 

agency, were concluded not to be within the statute. 

The term "state offic'?c" 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. tc mean one who receives his authority under 

the laws of the state. Er parte Preston, 161 S.W. 115 (Tex; Crim. 

App. 1913). Cf. Harris C&&y Commissioners Court v. Moore, 420 U.S. 

77, 82 n.6 (lx). In our Opinion, article 6252-26 was meant to apply 

only to officers and emploiees of state agencies, institutions and 

departments having statewide jurisdiction. We do not think it was 

meant to embrace everyone **ho might be considered to be within the 

legislative, executive or judicial departments of state government 

within the meaning of article II, section 1 of the Texas ConsHtution. 

Travis County v. Jourdan, 4i S.W. 543 (Tex. 1897); Jernigan v. Finley, 

38 S.W. 24 (Tex. 1896); Fears v. Nacogdoches County, 9 S.W. 265 (Tex. 

1888); cf. State v. Moore.!7 Tex. 307 (1882). - 

In Travis County v. J,rlrdan, supra, the state supreme court held -- 

that although county office!rs are state officers in a certain sense, a 

p. 867 
Honorable Thomas H. Fowler -. Page 3 (JM-197) 

statute that expressly appl.j.ed 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 mentirr 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 197!),. coupled with the amendment and virtual 

reenactment of article 6252..:!6 in 1981, leads to a similar conclusion. 

See Acts 1979, 66th Leg., c,t,. 

553 at 2274. 

744 at 1830; Acts 1981, 67th Leg., ch. 

Article 6252-19b, enacixd four years after the original enactment 

of article 6252-26, exprescly applies only to current and former 

officers and employees of "a county, city, town, special purpose 

district, or any other palitical subdivision of this state," and 

provides that such governanrtal units "may pay actual damages, court 

costs and attorney's fees" adjudged against their servants if damages 

are based on acts or omiss::ons 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 hW-276 (13,30) (purpose of article 62-26). Cf. 

V.T.C.S. art. 332~; Attorney General Opinion MW-157 (1980). - 

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 out another and were enacted at different 

times; they will be read and construed together as though they were 

parts of one law. See 53 l'ex. Jur. 2d Statutes 4186 at 280. When 

article 6252-19b and6252-26 are read together, It seems apparent that 

article 6252-19b was inteucled 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 6X2-26 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 

my damages, costs or fees; it says the political subdivision w do 

so. Article 6252-19b is also more restricted in its scope. See 

Attorney General Opinion MW-158 (1980). Article 6252-26 = 

subsequently amended in 1911:. without any suggestion that it covered 

those persons subject to prxection under article 6252-19b. Also, the 

legislature in 1983 was ce,reful to provide that "the provisions of 

[article 6252-26, V.T.C.S.11 do not apply to article 4399," Revised 

p. 868 
Honorable Thomas H. Fowler . . Page 4 (m-197) 

Statutes (relating to the i!t.ty of the attorney general to respond to 

requests for legal opinions), but it made no such provision for 

article 6252-19b. We are Lrd to conclude that the two statutes are 

not Intended to, and do not, cover the same officers and employees. 

- See Acts 1983, 68th Leg., ch 735 at 4516. 

We are aware that language in the federal case of Loftin V. 

Thomas, 681 F.2d 364 (5th C::r. 1982) could be read to mean that in the 

opinion of the court a suit against a county sheriff would be embraced 

by article 6252-26, V.T.C.S., as well as article 6252-19b. But we 

think the Loftin v. Thomig; court meant to show merely that the 

plaintiff there had a state remedy under at least one of the existing 

Texas statutes. 

Although federal courts have concluded that prosecuting attorneys 

act as agents for the stat:e rather than for the county in their 

prosecutorial functions, SE? Crane V. Texas, 534 F. Supp. 1237 (N.D. 

Tex. 1982). cf. V.T.C.S,%t. 332b-4, the statutory language and 

history do notevince an intent that article 6252-26, V.T.C.S., apply 

to county officers acting fcr the state. On the contrary, the 64th. 

65th, 66th and 68th Legislatures have all dealt with the statute in a 

manner suggesting that its scope is determined not by the function of 

an officer or employee, but: by the relationship of the officer or 

employee to the various levels bf state government. - Cf. Bexar County 

v. Linden, 220 S.W. 761 (Tex, 1920). 

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, 'I.T.C.S. 

SUMMARY 

County attorneys having responsibility for 

felony prosecutions are not officers or employees 

of any agency, institution. or department of the 

state within th,r meaning of article 6252-26, 

V.T.C.S. 

Very truly yours J-h L 

JIM MATTOX 

Attorney General of Texas 

TOM GREEN 

First Assistant Attorney Ge~lrral 

p. 869 
Honorable Thomas H. Fowler - :?age 5 (m-197) 

DAVID R. RICHARDS 

Executive Assistant Attorney (Zenera 

Prepared by Bruce Youngblood 

Assistant Attorney General 

APPROVED: 

OPINION COMMITTEE 

Rick Gilpin. Chairman 

David Brooks 

Colin Carl 

Susan Garrison 

Jim Moellinger 

Nancy Sutton 

Bruce Youngblood 

p. 870