The Attorney General of Texas 

April 3, 1980 

MARK WHITE 

Attorney General 

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 your question is whether 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 of the latter article was not intended to include the 

hiring of such counsel when the action involved is an ouster suit seeking the 

removal of county 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 a whole and have no right 

to maintain an ouster suit without being joined by a proper 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, 

310 S.W.Sd 414, 419 (Tex. Civ. App. - Amarillo), writ ref’d nr.e. by per 

curiam, 312 S. W.d 380 fl959). See V.T.C.S. art. 5977 (proceedings conducted 

in name of state). 

- 

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 “nonpolitical 
Honorable Billy Fred Lacy - Page Two @IN-157 ) 

entity.” Section 1 of this act states that a “nonpolitical entity” does not include “the 

state, a political subdivision of the state, a city, a special district, or other public entity.” 

It is clear that the State of Texas is a political entity, and therefore article 332~ &es not 

authorize the payment of attorneys’ fees. See Letter Advisory No. 24 (1973). 

- 

For an analysis of those instances in which 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 

A county 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 of Texas 

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 

Bob Gam mage 

Susan Garrison 

Rick Gilpin 

William G Reid 

Bruce Youngblood 

P. 307