# The Attorney General of Texas April 3, 1980 MARKWHITE AttorneyGeneral

Honorable Billy Red Lacy Potter County Auditor Potter County Courthouse Amarillo, Texas 79101 Opinion No. MW-157 Re: Article 332c, V.T.C.S., and the expenditure of county funds as reimbursement for attorneys’ fees incurred in defending an ouster suit. Dear **Mr.**Lacy: You have requested our opinion regarding the authority of Potter County under article 332c, V.T.C.S., to reimburse the Sheriff and County Attorney for the attorneys’ fees these two officers incurred while defending an ouster suit brought against them by the District Attorney. The District Attorney brought the action for removal under the terms of article 5970, V.T.C.S., and yourquestion iswhether the costs of defending this suit can be borne by the county in accordance with the provisions of article 332c, V.T.C.S. It is our opinion that the employment 

### of private counsel that is provided for in section 3

### ofthe latter article wasnot intended to include the hiring of suchcounsel when the action involved is an ouster suit seeking the removal ofcounty officials. Article 5970, V.T.C.S., and article V, section 24 of the Texas Constitution have been held to require a suit for removal to be brought in the name of the state. As the Texas Supreme Court noted in Garcia v. Laughlint 295 S.W.2d 191, 194 (Tex. 19551, “lilndividuel citizens have no private interest distinguishable from the public as awhole and have no right to maintain an ouster suit without being joined byaproper state official” These suits must follow the procedures set out by the Texas Legislature in articles 5970-5997, V.T.C.S., and must be sworn to and conducted in the name of the State of Texas. Childress County v. Sachse, 310S.W.Sd 414, 419 (Tex. Civ. App. - Amarillo), writ ref’d nr.e. by per curiam, 312S.W.d380 fl959). See V.T.C.S. art. 5977 (proceedings conducted inname ofstate). - Article 332c, V.T.C.S., was enacted to provide legal representation to county officials and employees who are sued while in the performance of public duties and are the subject of an action brought by a “nonpoliticalHonorable Billy Fred Lacy - Page Two @IN-157 )

entity.” Section 1of this act states that a “nonpolitical entity” does not include “the state, apolitical subdivision of the state, acity, a special district, or other public entity.” It is clear that the State ofTexas isapolitical entity, and therefore article 332~ &es not authorize the payment ofattorneys’ fees. See Letter Advisory No. 24(1973). - For an analysis of those instances inwhich the case law permits a city or county to pay the legal fees of officials who have acted within the scope of their official duties see Attorney General Opinions H-997 (1976) and WW-1464 (1962). See-gene Letter Advisory No. 24(l973). SUMMARY

Acounty cannot rely on the provisions of article 332c, V.T.C.S., as authority to pay the attorneys’ fees of officials who are subjected to an ouster suit brought under the provisions of article 5970, V.T.C.S. w!m

MARK WHITE Attorney General ofTexas JOHN W.FAINTER, JR. First Assistant Attorney General TED L. HARTLEY Executive Assistant Attorney General Prepared by Walter Davis Assistant Attorney General APPROVED: OPINION COMMITTEE C. Robert Heath, Chairman David B.Brooks Walter Davis BobGammage Susan Garrison Rick Gilpin William GReid Bruce Youngblood

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