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JIM MATTOX Attorney General 

# The Attormy General of Texas
.iugust31. 1984

Supreme Court Bulldlng P. 0. Box 12548 Austin, TX. 78711. 2548 512/475.2501 Telex 9101874-1387 Telecopier 51214750266 HonorableThomas H. Fowler District and Count], Attorney Red River County P. 0. Box 822 Clarksville,Texas 75426 OpinionNo. JM-197
Re: Application of article 6252-26. V.T.C.S., to county attorneyswith felony responsibility 714 Jackson, Suite 700 Dallas. TX. 752024503 DearMr. Fowler: 21417428944 You have askecl whether countyattorneyshaving responsibilityfor
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 themeaning of article 915/533-3484 6252-26,V.T.C.S.

,c,Wl Texas, Suite 700 Article 6252-:!t~ reads in pertinentpart: 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 securedby the constitutionor laws of th::rl

stateor theUnited States, exceptwhen the c>xt in its judgment or the jury in its verdict:finds that the officer, contractor, or employeeacted inbad faith. (b) ::hlsAct shall not be construed as a waiver oji

any defense, immunity,or jurisdictional

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

. . . . Sec. 5. A member of the commission, board, or other governingbDiy 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 forpurposes of theact is not intendedas an exclusionof 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 Jiorprosecuting felonies, are officers or employees of a state agency, institution or department of the state within the meaning of artic1.e6252-26,V.T.C.S. See Attorney General - OpinionB-1160 (1978). This office found it unnecessary in Attorney General Opinion MW-252 (1980)to decidewhe:therarticle 6252-26would apply to a suit against a district attorne, 1)because requiredprocedural stepshad not been taken. But In Attoxey General Opinion H-1160 (1978), after reviewing the history of the! provision, itwas 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 supervisedby an officer of a state agency,were concludednot tobe within the statute. The term "state offic'?c"can be used in both a popular sense to mean an officerwhose jurisdiction is coextensivewith the state or, in a more enlarged sense. tcmean one who receiveshis authorityunder the laws of the state. Er parte Preston, 161 S.W. 115 (Tex; Crim. App. 1913). Cf. Harris C&&y CommissionersCourtv. Moore, 420 U.S. 77, 82 n.6 (lx). In ourOpinion, article 6252-26was 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 **homight be considered to be within the legislative, executive or judicial departments of state government within themeaning of article II, section 1 of the Texas ConsHtution. Travis Countyv. Jourdan, 4i S.W. 543 (Tex. 1897);Jerniganv. Finley, 38 S.W. 24 (Tex. 1896); Fears v. Nacogdoches County, 9 S.W. 265 (Tex. 1888);cf. Statev. Moore.!7 Tex. 307 (1882). - In Travis Countyv. J,rlrdan, supra, the state supreme courtheld -- that althoughcounty office!rs are state officers in a certain sense, a

p. 867HonorableThomas 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 treasurerbecause the mention of district judges would have been unnecessary had the legislaturemeant 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 statutedid not mean to embraceany other officerson 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 reenactmentof 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 fouryears after the originalenactment 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 governanrtalunits "may pay actual damages, court costs and attorney's fees" adjudgedagainst 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 GeneralOpinionMW-157 (1980).
Statutes dealing with the same general subject and having the same generalpurpose 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 6252-19band6252-26 are read together, It seems apparent that article 6252-19b was inteucledto 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 shallbe liable for and pay my damages, costs or fees; it says the political subdivisionw do so. Article 6252-19b is also more restricted in its scope. See Attorney General Opinion MW-158 (1980). Article 6252-26 = subsequentlyamended in 1911:. without any suggestion that it covered thosepersons subject to prxection under article 6252-19b. Also, the legislature in 1983 was ce,refulto provide that "the provisions of [article 6252-26, V.T.C.S.11do not apply to article 4399," Revised

p. 868HonorableThomas H. Fowler
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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. SeeActs 1983, 68th Leg., ch 735 at 4516. - We are aware that language in the federal case of Loftin V. Thomas, 681 F.2d 364 (5thC::r.1982)couldbe read tomean that in the opinion of the court a suit againsta county sheriffwould 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 therehad a state remedyunder at least one of the existing Texas statutes. Although federal courtshave concludedthat prosecutingattorneys act as agents for the stat:erather than for the county in their prosecutorial functions, SE? CraneV. 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 Legislatureshave all dealtwith the statute in a manner suggesting that its scope is determinednot by the function of an officer or employee, but:by the relationship of the officer or employee to the various levelsbf state government. Cf. Bexar County - v. Linden, 220 S.W. 761 (Tex, 1920).
It is our opinion, therefore, that county attorneys having responsibilityfor felony prosecutionsare 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,rmeaning of article 6252-26, V.T.C.S.

Very trulyyours 

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JIM MATTOX Attorney General of Texas TOM GREEN FirstAssistantAttorney Ge~lrral

p. 869HonorableThomas H. Fowler - :?age5 (m-197)

DAVID R. RICHARDS ExecutiveAssistantAttorney (Zenera Preparedby Bruce Youngblood AssistantAttorney General
APPROVED: OPINION COMMITTEE Rick Gilpin. Chairman David Brooks Colin Carl Susan Garrison JimMoellinger Nancy Sutton BruceYoungblood

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