DAN MORALES 

ATTORNEY GENERAL 

QBffice of tfie 2lttornep Qhneral 

Bbtate of Qexae 

April20.1992 

Honorable Mike Driscoll 

Harris County Attorney 

1001 Preston, Suite 634 

Houston, Texas 77002-1891 

Opinion No. DM-107 

Re: Whether the Harris County. 

Attorney is--authorized to represent a 

~Harris county Hospital District employee 

accused of criminal acts committed within 

the course of his duties, and whether the 

hospital diitrict is authorized to hire an 

attorney to represent such an employee 

or to reimburse the employee’s legal 

expenses following the conclusion of the 

litigation (RQ-291) 

Dear Mr. Driscoll: 

You have asked whether the Harris County Attorney (the “county attorney”) 

is authorized to represent a Harris County Hospital District employee accused of 

criminal acts committed during the course of his duties. You also ask whether the 

Harris County Hospital District. (the .%ospitaLdistrict”.) isauthorized to hire an 

attorney to represent such an employee or to reimburse,.the -employee’s legal 

expenses following the conclusion of the litigation. By way of background, you 

explain that an employee of the hospital district was charged with a misdemeanor 

for the alleged sexual touching of a hospital district patient. The county attorney 

denied the employee’s request for representation. The employee hired his own 

attorney and was eventually acquitted of the charges. The employee is now 

requesting that the hospital district reimburse him for his legal expenses. 

You contend that the county attorney’s office is prohibited from representing 

a hospital district employee under these circumstances by article 2.08 of the Code of 

Criminal Procedure. We agree. Article 2.88 provides as follows: 

District and county attorneys shall not be of counsel 

adversely to the State in any case, in any court, nor shall they, 

after they cease to be such officers, be of counsel adversely to 

p. 535 
Honorable Mike Driscoll - Page 2 (DM-107) 

the State in any case in which they have been of counse.1 for the 

State. 

This provision generally prohibits district and county attorneys from representing 

defendants in &m.inaJ cases. See, eg., Attorney General Opinions V-247 (1947); O5735 (1944); see &o Ethics Opinion 419, 47 Tex. B.J. 1370 (1984); @ Ex pmte 

Ramsqr, 642 S.W.2d 483 (Tex. Grim. App. 1982) (county attorney not disqualified 

from representing petitioner in application for writ of habeas corpus because case’~ 

did not fall within general provisions of chapter 2, Code. of Crhnimd Procedure). 

Clearly, article 2.08 would prohibit a county attorney from representing any person, 

including a hospital district employee, in a misdemeanor case such as the one you 

describe. 

You also ask whether the hospital district is authorized to hire an attorney to 

represent an employee against misdemeanor charges which arise from conduct 

allegedly committed by the employee during the course of his duties, or to 

reimburse the employee’s legal expenses following the conclusion of litigation. 

Generally, a special-purpose district, such as a hospital district, “may exercise only 

such powers as have been expressly delegated to it by the Legislature, or which exist 

by clear and unquestioned implication.” TnXiry Fresh Water Supply Dirt. No. 2 v. 

Munn, 142 S.W.2d 945, 946 (Tex. 1940). Implied powers are those that are 

“indispensable to.. . the accomplishment of the purposes of [the district’s] creation.” 

Id at 947; see ah Attorney General Opinion JM-258 (1984). 

The Harris County Hospital District was created pursuant to chapter 281 of 

the Health and Safety Code. Section 281.056 of that chapter provides: 

(a) The board may sue and be sued. 

(3) The county attorney, district attorney, or criminal 

district attorney, as appropriate, with the duty to represent the 

county in civil matters shall represent the district in all legal 

matters. 

(c) The board may employ additional legal counsel when 

the board determines that additional counsel is advisable. 

(d) The district shall contribute sufficient funds to the 

general fund of the county for the account of the budget of the 

county attorney, district attorney, or criminal district attorney, as 

p. 536 
Honorable Mike Driscoll - Page 3 (DM-107) 

appropriate, to pay all additional salaries and expenses incurred 

by that officer in performing the duties required by the district. 

Subsection (c) of section 281.056 is broadly written. We believe that in limited 

circumstances it authorizes the hospital district to employ legal counsel to represent 

both the district and its officers or employees in civil and criminal matters.’ See 

Attorney General Opinions JM-968 (1988); JM-824, JM-755, JM-685 (1987) 

(recognizing that Texas governing bodies are generally authorized to employ 

attorneys to defend their officers and employees in certain circumstances); see also 

C& of Corskenrr v. Bubb, 290 S.W. 736 (Tex. Comm’n App. 1927, judgm’t adopted); 

Attorney General opinion JM-968 at 3; Letter opinion No. 90-93 (1990) 

(recognizing that Texas governing bodies’ authority to employ attorneys exists not 

only when an officer is alleged to have committed an act of mere negligence, but 

also when an officer or employee is alleged to have committed an intentional tort or 

crimhal act). 

This office has repeatedly recognized that the statutory authority of Texas 

governing bodies to employ counsel is limited by the Texas Constitution, article JJJ, 

sections SO, 51, and 52. See, eg., Attorney General Opinions JM-824 at 4 

(interpreting predecessor provision to Local Government Code section 157.901); 

JM-755 at 3 (same); see u.ko Attorney General Opinion JM-685 at 2 (authority of 

school district to employ counsel). Thus, the authority of a hospital district under 

section 281.056(c) to employ attorneys to defend officers and employees is not 

boundless. Specifically,. this ~-authority is. limited ,-to ~situations where legitimate 

interests of the govermnental entity to employ counsel;-nofjiisf thi5personal 

interests of the officers or employees - require the assertion of a vigorous legal 

defense on behalf of the public interest. Attorney General Opinion JM-824 at 2. 

Public funds may not be used when the interest to be defended is a purely private 

one. Id. The governing body need not conclude, however, that the officer or 

employee must have been correct in his course of action; the governing body need 

only determine that the officer or employee acted in good faith within the scope of 

an official duty. Id. at 3. 

‘Your brief suggests that because subsection (h) refers to ‘civil matte*. the scope of 

subscclioa (c) is limited to ciGl matters. We disagrw. Subsection (b) merely identities the officials 

who arc rqked to represent hospital distrku. It dots not preclude hospital districts from obtaining 

counsel in aimhal matters. As noted above, district aad county attorneys arc prohiicd from 

reprc-seatiag clients ia Riminal matlcrs. 

p. 537 
Honorable Mike Driscoll - Page 4 (DM-107) 

Prior opinions of this office also establish that the question of the 

constitutionality of expending public funds in the defense of an officer or employee 

in a particular instance depends upon the nature of the interest at stake and, 

therefore, involves questions of fact which cannot be resolved in the opinion 

process. Id. at 2. Thus, it is for the board of the hospital district to determine 

whether the matter at issue in a particular lawsuit concerns the interest of the 

hospital district or whether the expenditure of public funds would only personahy 

benefit the officer or employee. Id at 3. 

While we conclude that section 281.056(c) of the Health and Safety Code 

authorizes the hospital district to hire attorneys to represent officers or employees 

within the constitutional limitations described above, we conclude that the hospital 

district is not authorized to reimburse an employee following the conclusion of the 

litigation for legal expenses he incurred in defending himself. First, section 

281.056(c) merely authorizes the hospital district to employ counsel; it does not 

authorize the reimbursement of an employee’s legal expenses. Second, we are not 

aware of any other authority for the proposition that a governmental entity may 

reimburse a public official or employee a&r the person has incurred legal expenses. 

See Letter opinion No. 90-93. 

SUMMARY 

Article 2.08 of the Code of Criminal Procedure prohibits the 

Harris County Attorney from representing, a Harris ‘County 

Hospital District employee in a crimmal case. Section 

281.056(c) of the Health and Safety Code authorizes the Harris 

County Hospital District to hire an attorney to represent an 

employee. Whether the Texas Constitution permits the Harris 

County Hospital District to do so in a particular case involves 

questions of fact and must be determined by its board. .The 

Harris County Hospital District is not authorized to reimburse 

an employee’s legal expenses following the conclusion of the 

litigZltiOIL 

DAN MORALES 

Attorney General of Texas 

p. 538 
Honorable Mike Driscoll - Page 5 (DM-107) 

WILL. PRYOR 

First Assistant Attorney General 

MARY KELLER 

Deputy Assistant Attorney General 

RmEAHIcKs 

Special Assistant Attorney General 

MADELEINE B. JOHNSON 

Chair, Opinion Committee 

Prepared by Mary R. Grouter 

Assistant Attorney General 

p. 539