July 15, 1987

ax .3Lm”rox xlTo~NEY GSZSERAI.

r‘ HonorableRexN. Leach

DistrictAttorney LimestoneCountyCourthouse 200West state street Groesbeck,Texas 76642 Opi~+ No. JM-755

Re: Authorityof a county to provide legal counsel for a sheriff in certain legalproceedings

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 factswhich promptyour 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 procedurehad been followedby the district judge in issuingthe subpoena. The district judge then found the sheriff in contempt for failing to complywith the subpoena and issued a writ of attachment for the sherifforderinghim jailed. The Court of Appeals then granted a vrit of habeas corpus. The district judge then issued a new subpoena for the same documentswhich was finally compliedwith 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 representedby 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 severaloccasionsconsideredwhether a publicbody, such as * county,may provide for legal counsel to defendpublic officers and employees subjected to litigation in the course of their public duties. A generalrule can be distilled from our diverse opinions:

Where a Texas governing body believes in good faith that the public interest is at stake, even

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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 notmade dependentupon the outcomeof the litigation,but upon thebone fides of the governing body'smotive.,
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. 130A.L.R. 736 (1941).

The authority of the county to employ attorneys to defend county officers end employees is limited to situationswhere the legitimate interests~ofthe county -- and not just thepersonal 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. - SanAntonio 1937,writ ref'd).

Thus. the question of the lawfulness of expending public funds for en attorney to defend the interestsof 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 interestsof the county,or whether thebenefitsprovided by public funds eccrue only to the personal interest of the public official or employee represented et taxpayers' expense. We do not make determinationsof fact in theprocess of issuingen opinion; that responsibility in this kind of question must rest with the seasoned judgment of the county commissionerswho 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 officermust 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 AustinV. 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 forprivate counsel for the sheriff. Article 332~provides:

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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 specialdistrict,or otherpublic entity.

Sec.. 2. In any suit instituted by a nonpolitical entity against an official or employee of a county, the districtattorneyof 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 involvesany act of the officialor employeewhile in theperformanceof public duties.

Sec. 3.. If additional counsel is necessary or proper for an official or employeeprovided legal counsel by Section 2 of this Act or if it reasonably appears that the act complainedof may form thebasis for the filing of a criminalcharge against the official or employee, the county connnissioners

court shall employ end pay private counsel.

Sec. 4. Nothing in thisAct requires a county official or employee to accept the legal counsel provided forhim in thisAct.
This statute. adoptedby 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-lawrule. 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 statutedoesnot occupy thewhole of the ground embracedby the common-lawrule. The statutedoes not -- and cannot -- repeal the implied condition that a legitimate interest of the county must be involved. AttorneyGeneralLetterAdvisoryNo. 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.

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Article 332~ simplydoes not apply to the factspresented 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"'isnotwithin thepurview of article 332~. By itsplain terms, the article applies 9 to suits instituted by non-political entities. A district courtmanifestly is a political entity, for the court is an agency of the sovereign, the ultimate political entity. IsbillV. 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 "politicalentity." 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.

. . .IIYou note that in the situation et hand the sheriff
was the subject of a writ of attachment end thuswas threatenedwith 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 inquiryconstituteda criminal investigationof the sheriff.

We need not decide thesepointsbecause the clear languageof 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 thewhole of the statutemust be harmonizedwith theparamountpurpose 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 thephrase in section 3 -- "if it reasonablyappears 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 toboth thepurpose and tenorof the statute.
Article 332~. like the common-law rule it codifies in part, belongs to thatnarrow class of the lawswhich permitspublic funds to be spent for the indirectprivate benefit of certain persons because
an importantpublic interestpredominates. See Tex. Const. art. III, §§51, 52. The evident policy of article 3%-c, like the connnon-law ?

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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
courseof thepublic servant'sperformanceof public dutieswithin 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 tobevexatious,and perhaps even wholly mischievious. The suits are initiatedby persons whose judgment end motive are sometimes unfathomable. The purely private decision to sue a public servant is not subject to the checks-end-balancessomuch a pert of the nature and functioningof 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 aboutmeeting the costs of a le~gal defense. Fear of boundless litigation, especially if it proves to be frivolous after e lengthy end expensiveprocess,may make public servants timid in,thedischarge of their duties. Article 332~ obviously re-enforces the common-law rule to deal with these problems, to the extent specified by the legislatureendpermittedby 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 employeeswho have been sued in their officialend individualcapacitiesif the suit involves en action of the official or employee within the scope of the official's or employee's authority in the performanceof public duties,and if the county commissionersbelieve 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 politicalentity, includinga district court judge conducting e court of inquiry pursuant to article 52.01 of the Court of CriminalProcedure.

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Very trulyyour I

JIM MATTOX AttorneyGeneral of Texas

MARYKELLER ExecutiveAssistantAttorneyGeneral

JUDGE ZOLLIE STEAKLEY SpecialAssistantAttorneyGeneral

RICK GILPIN Chairman,Opinion Comittee
Preparedby Don Bustion AssistantAttorneyGeneral

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