Honorable Thomas B. Sehon Opinion No. m-824 Falls County District Attorney Falls County Courthouse Re: Authority of acounty Marlin, Texas 76661 toprovide legal counsel for a sheriff and district attorney sued in their official capacities (RQ-1024)

Honorable Thomas B. Sehon:

YOU ask two questions prompted by afederal lawsuit brought by amember of the Falls County Commissioners Court against you, both individually and inyour capacity
asdistrict attorney. The suit, which alleges violations of federally protected civil rights, malicious prosecution, libel, and slander, seeks damages of $500,000. The suit also names as adefendant, inboth an individual and official capacity, the Falls County sheriff. Your questions are:

(1)Under the provisions of section 157.061 of the Local Government Code, formerly article 332c, V.T.C.S., is Falls County required toprovide legal counsel for the sheriff and the district attorney to defend them against a lawsuit filed by a member of the commissioner's court?
(2)Byvirtue of section 81.002 ;ztiEpz Local Government Code, formerly 2340, V.T.C.S., is the county COmmiSSiaIz-, who brought the suit disqualified (a) voting on the hiring of anattorney to defend the officials he has sued and (b) from participating inmeetings about the lawsuit conducted between the commissioner's court and the attorney hired todefend the county officials?

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Falls County isobligated toprovide legal counsel to the county attorney and sheriff ifthe commissioners court decides that the suit involves the public interest. Local Gov't Code 5157.061; Attorney General Opinion JM-755 (1987). Wehave on several occasions considered whether a public body, such as a county, may provide for legal counsel todefend public officers and employees subjected to litigation in the course oftheir public duties. A general rule can bedistilled from our diverse opinions:

Where a Texas governing body believes in good faith that the public interest is at stake, even though an officer is sued individually, it ispermissible for the body to employ attorneys to defend the action.
. . . The propriety of such a step isnot made dependent upon the outcome of the litigation, but upon the bona fides of the governing body's motive.

Attorney General Opinions JW-755 (1987); MW-252 (1980); H-70 (1973); see also Attorney General Opinions H-887 (1976); H-544 (1975); M-726 (1970); AttorirIy General Letter Advisory No. 24 (1973). See also Cltv Corsicana

v Babb, 290 S.W. 736, judgment adopted (Tex. Comm'n 1927); see aenerau APP. Annot., Payment of Attorneys' Services in Defending Action Brought Against Public Officials, 130A.L.R. 736 (1941).

We emphasize that the authority ofthe county to employ attorneys todefend county officers and employees is limited to situations where the legitimate interests of the county --and not just the personal interests of the officers or employees -- require the assertion of a vigorous legal defense on behalf ofthe public interest. Attorney General Opinions 374-755 (1987); H-887 (1976). The county may not use public funds when the principal interest tobe defended isapurely private one. Attorney General Opinion W-726 (1970); & Citv ofDel Rio v. LOWe, 111 S.W.Zd 1208, 1219 (Tex. Civ. App. -San Antonio 1937), rev'd on other arounds, 122 S.W.2d 191 (Tex. 1938): State
v.Averill 110 S.W.Zd 1173 (Tex. Civ. App. -San Antonio 1937, writ'ref'd).

Thus, the question of the lawfulness of expending public funds toprotect the public interest in a suit brought against apublic official oremployee will always be a question of fact. The question that the commissioners must decide is whether or not the suit ?

p. 3922Honorable Thomas B. Sehon -Page 3 m-824)

really isone that concerns the interests of the county or whether the benefits provided bypublic funds accrue only to the personal benefit of the public official or employee represented at taxpayers' expense. We do not make determinations of fact in the process of issuing an opinion: that responsibility inthis kind ofquestion must rest with the judgment ofthe county commissioners who must vote whether toexpend public funds ina particular
case.

Such adecision does not have to conclude that the county officer must have been right, orthat the suit ultimately must be defeated, The county need only determine that the public servant of the county acted in

National Bank of Au&in v Presidio County, 26 S:W. % good faith within the scope ofan official duty

. (Tex. Civ. App. 1894, nowrit): Attorney General Opinion M-726 (1970). Bven ifthe suit contains allegations that
acounty official or employee has acted outside his authority, the expenditure ofpublic funds in defense would still beproper. Such an issue can only be decided at the trial of the case;standing alone, the allegation itself cannot be the basis for arefusal to find that the defense of the public officials interest, isoutside ofthe public

except inthe most extreme ofcases. See. e.a CitV Of Del Rio, sunra; see also Attorney General Opinion$ JM-755 (1987); H-887 (1980); H-544 (1978); Attorney General Letter Advisory No. 24 (1973).

You suggest that section 157.061 of the Local Government Code recuires the county topay private counsel todefend yourself and the sheriff.

LEGAL DEFENSE OF EMPLOYEES. (a). A county official or employee sued by nonpolitical entity for an action arisin: from the performance of public duty is entitled tobe represented by the district attorney of the district inwhich the county is located, the county attorney, orboth.

(b)Ifadditional counsel isnecessary or proper in the case of an official or employee provided legal counsel under Subsection (a)or if itreasonably appears that the act complained ofmay form the basis for the filing ofacriminal charge against the official or employee, the official employee is entitled to have 2:

p.3923Honorable Thomas B. Sehon -Page 4 (m-824)

commissioners court of the county employ and pay private counsel.

(c)Acounty official or employee is not required to accept the legal counsel provided inthis section.

(4 In this section, 'nonpolitical entity' means an individual, firm, corporation, association, orother private entity. Itdoes not include the state, a political subdivision of the state, acity, a special district, orother public entity.

This statute, adopted by the legislature in 1973 and placed inthe Local Government Code bya nonsubstantive revision in 1987, isdeclaratory of at least apart ofthe common-law rule referred to above.1 See aenerally Attorney General Letter Advisory No. 24 (1973). We do not understand the statute to repeal or supplant the common-law rule. At the least, the provisions strengthen the rule by entitling a public servant to a defense provided by the county inacertain class of cases. As such, itcan be construed toharmonize with the existing common-law rule, Preels v.Walker, 26 S.W.2d 627, opinion adopted (Tex. Comm'n App. 1930), even though the statute does not occupy the whole ofthe ground embraced by the common-law rule. The statute does not --and cannot -- repeal the implied condition imposed by the constitution that alegitimate interest ofthe county must be involved. Attorney General better Advisory No. 24 (1973). But when the commissioners make a bona-fide decision that the public interest is involved, then the public official or employee must be afforded the legal assistance specified in section 157.061.

As an express condition for the application of section 157.061, the suit against the public servant must be instituted by a "non-political entity," meaning

1. Subsection (a) of section 157.061 requires the county or district attorney, orboth, todefend the public servant, except in certain cases specified in section three of the statute. Prior to the adoption of section 157.061, county and district attorneys had no such duty. See Attorney General Letter Advisory No. 24 (1973).

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- Honorable Thomas B. Sehon -Page 5 (m-824)

an individual, firm, association, orother corporation, private entity. does not include the state, a politic:: subdivision ofthe state, acity, aspecial district, or other public entity.

Local Gov*t Code 5157.061(d). It isapparent tous that the litigation athand has not been instituted by apublic entity.

Asingle county commissioner has 119 authority to bring suit inthe name ofthe county. Acounty is

manifestly aunit, and isthe agency of the whole county. The respective members ofthe commissioners court are therefore primarily representatives ofthewhole county, and not merely representatives oftheir precincts. respective

The duty of the commissioners court isto transact the business, protect the interest, and promote thewelfare of the county as awhole.

**StOVall** v. Shivers 103 S.W.2d 363, 366 (Tex. 1937); &j&j Tex. Const. 'art. V, see 518; Local Government Code 081.001. Only action taken by the governing body of the county --the commissioner's minutes -- court speaking through its

can bind the county. Stratton v. Countv of Liberty 582 .S.W.Zd252 (Tex. Civ. App. -Beaumont, writ rek'd n.r.e.); Hill F 1979, arm, I . S.W.Zd 414.(Tex. Civ. App. -Wacony968y* 111 c

,:ff'd ;.W"::

::? V

230 (1968). The information furnished to us clearly demonstrates that the litigation prompting this request
was filed by a %onpolitical entity" --aprivate person who happens tobe acounty official, but who is seeking redress for alleged wrongs merely personal tohim even though they may involve public officials acting against him intheir official capacities.

We also note that subsection (b)of'section 157.061 may apply inthis case. That provision provides, inpart, that:

Ifadditional counsel is Becessarv or

prooer in the case of an official employee provided legal counsel . . . t:: official oremployee isentitled tohave the commissioners court of the county employ and pay private counsel. (Emphasis added.)

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Honorable Thomas B. Sehon -Page 6 (JM-824)

Local Gov't Code, 5157.061(b). Inthe usual case under section 157.061, the defense of apublic servant isto be undertaken by the county attorney, the district attorney,
orboth. Obviously, you, as the district attorney, cannot be expected, on prudential grounds, or otherwise, to defend yourself. Nor may you, asa formal matter of legal ethics, represent your co-defendant, something that would otherwise beyour duty under section 157.061 of the Local Government Code. See. e.a. Supreme Court ofTexas, Rules Governing The State Bar oftTexas, art. XII, 58 (Code of Professional Responsibility), Canon 5 (1971). Thus, this
seems to be precisely the class of case where section 157.061 mandates that the county hire and pay for private counsel for both yourself and the sheriff. Of course, the commissioners must determine formally that it isnecessary and proper forprivate counsel tobe employed and paid.

You also askwhether the county commissioner bringing the suit is (a)disqualified from voting on questions concerning the hiring and payment by the commissioners court ofanattorney todefend the public officials hehas sued and (b)disqualified from participating in meetings about the lawsuit which might be conducted between the commissioners court and the private attorney hired to handle the suit. You suggest that section 81.002 of the Local Government Code, formerly article 2340, V.T.C.S., provides affirmative answers to these questions. --_

Section 81.002 requires, in part, that a county commissioner take anoath to abjure certain actions likely topromote so-called %onflicts of interest." The precise purpose of the provision isto eliminate the possibility of any pecuniary gain from the county by those who manage its affairs--in the case of %ontracts with" or wclaims against" the county. See aenerally Hexar Countv V Wentworth, 378 S.W.2d 126 (Tex. Civ. APP. -San Antonio 1964, writ ref*d n.r.e.); Attorney General Opinion M-1140 (1972). A commissioner must post a bond to insure the faithful performance of this, and other, duties. Local Government Code, section 81.002. The provision does not,
on its face, forbid acommissioner with a prohibited interest from voting. But ifsuch avote iscast, and ,it isa deciding one, then the contract is void. Bexar Countv v.Wentworth, m. ?
Members of the commissioners court must avoid acquiring or furthering an interest inany contract with the county. Attorney General Opinions H-624 (1975): H-329 (1974). ?

p.3926Honorable Thomas B. Sehon -Page 7 (J&82.!,)

P

- In the instant case, onemember ofthe commissioners

court, acting solely asaprivate citizen, is suing the county attorney and the sheriff. The commissioners court must decide whether ornot to enter into acontract with a private attorney toprovide for the legal defense of the the two county officials. Such acontract will not result inthe possibility ofany direct pecuniary gain by the commissioner bringing the suit, because he will not be either aparty orabeneficiary of its execution. Only the lawyer engaged pursuant to the contract will receive money from the county, and only the public officials he will defend will bebeneficiaries of the contract.

Nor, logically, can the contract result in the possibility of an indirect gain by the commissioner bringing the suit., The only purpose of the contract to engage a lawyer is to defeat the commissioner's expectations of winning a lawsuit and receiving consequent award ofdamages from the public officials ht is suing. The commissioner bringing the suit has only a non-pecuniary interest in the contract: he hopes the efforts of the attorney hired pursuant to the agreement will come to naught and that his cause will prevail.

In fact, it isclear that Section 81.002 of the Local Government Code islimited inapplication to those cases where action by acounty commissioner will prompt the flow ofpecuniary benefits from the county to him, whether directly or indirectly. In other words, money paid because of acontract entered into by the county must find itsway to the benefit of the commissioner. The statute should not be read to cover those circumstances where the interest of the commissioner does not encompass the possibility ofa gain from the county, and, ultimately, its taxpayers, through the execution ofacontract.

Inno previous case has the prohibition against a county commissioner having an interest inacontract been applied to asituation where funds expended by the county pursuant to the contract could not ao toa commissioner, either directly or indirectly. Thus, here, while it is correct to say that the county commissioner bringing suit is "interested*' in a contract between the county and attorney engaged todefend the public officials he is suing, his interest is not specifically of the kind brought within the prohibitions of section 81.002. The letting of the contract to hire alawyer cannot possibly influence the way the commissioner deals with the official business of the county, andwill not later give rise to a

p.3927Honorable Thomas B. Sehon -Page 8 (m-8243 ,

possibility that the commissioner will be influenced by a personal pecuniary interest should the contract go awry. &g &lk v. Roe-, 184 S.W. 513 (Tex. Civ. App.- Seaumont 1916, nowrit).' To say otherwise would subject county commissioners to an impossible dilemma: any contract which might redound to their benefit in a non-monetarv sense would be section 81.002.2 subject to the strictures of

Nevertheless, public policy inTe;tseforbids apublic official from casting a decldznq matter concerning an issue in which he has a di:ict: adverse interest. If, by such asingle vote, apublic official
can prevent an otherwise proper decision by the commissioners court that it is inthe public interest to employ and pay for counsel todefend apublic official in
alegal action, then the official isbarred from voting. 

### In&g,ezv. Stateex. rel TeVu, 446 S.W.2d 43 (Tex. Civ. App. - Beaumont 1969, writ ref'd n.r.e.) the court
was confronted with a situation involving acity council member who **voted for**  aresolution to authorize legal action to thwart arecall election aimed solely at him. The court noted that while his vote was adecisive one in securing a particular course of action, which was otherwise unremarkable, hewas disqualified gs amatter of &8~ from voting because hehad 'Iadirect personal and pecuniiary interest in the matter under consideration." & at 48 (emphasis added). The decision inRaaer goes to some length to analogize the situation before itto cases involving judicial and quasi-judicial functions, citing inter alia Tex. Const. art. V, 511 (judges may not sit in
cases inwhich they are interested).

Thus, this rule is bottomed onprinciples different from those concerning the common law conflict-of-interest doctrine. Adecision by acounty commissioner to employ

2. Neither does section 171.003 of the Local Government Code, formerly section 3 of article 98813, v-',;;i~t; o;PPIY. That provision governs potential

interest involving local public officials, including county commissioners, and "business entities" in which they have aspecified interest. The prohibitions in section 171.003 do

### notapply here; a lawsuit brought by a commissioner isnot a "business entity" asdefined inthat section.

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- Honorable Thomas B. Sehon -Page 9 (JM-824)

and pay counsel todefend apublic official or employee at county expense is a quasi-judicial act. A commissioner acts ina county quasi-judicial capacity "when, in the exercise ofhis functions, he isrequired topass upon facts and determine
. . .action[s] by the facts found." 62S.W.2d 366, 370 (Tex. Civ. 'dinDart onother arounds, 93 S.W.2d 382 (Tex. 1926). Such ajudgment isat the very heart of the decision which must bemade in deciding whether toprovide legal assistance to apublic servant pursuant to section 157.061 of the Local Government Code. Thus, the commissioner bringing the action isbarred from casting a deciding vote on any aspect of the matter, including whether to employ and pay defense counsel because ofhis obviously adverse interest. !i?a!zLzsYJxs.

You also askwhether the county commissioner bringing the suit may be excluded from meetings of the commissioners court where discussions are held between the commissioners and the attorney they employ todefend the public officials being sued. The analysis of question isbest approached your by considering the nature of the relationship established by the use ofpublic funds to defend suits against public officials and employees. The attorney representing apublic official oremployee has as aclient the official or employee named asa defendant, not the county. In other words, the county is not a client and, as such, it may not be privy to the confidences shielded by the attorney-client privilege recognized inthe law. For ifthe county and the public servant are both clients of the same lawyers, then conflicts of interest may arise. In such an instance, the public servant provided with representation may suffer serious adverse consequences. Thus, the lawyer representing the public official oremployee must retain in confidence all of the privileged aspects of the representation of the public the client. official oremployee who is

See. ea

. Governing the State Bar' Supreme Court of Texas, Rules ofTexas, art. XII, g8 (Code of Professional Responsibility), DR 4-101 (1973); Texas Rule of Evidence 503. & Attorney General Opinion JM-100 (1984).
The attorney defending the public servant may not, except as provided by law, discuss privileged aspects arising out ofthe representation provided with anyone other than the client. The county, per se, is not a client; consequently, there should beno occasion for the county commissioner bringing suit toattend any discussion of the aspects of the case subsumed by the privileged

p.3929Honorable Thomas B. Sehon -Page 10 (.w%!4)

lawyer-client relationship. The commissioners court may not hold such discussions so long asaproper assertion of the attorney-client privilege isbefore them.

SUMMARY



### Acountymayexpend public funds for the employment ofa private attorney to represent county officials and employees who have been sued in their official and individual capacities ifthe suit involves an action of the official oremployee arguably within the scope of the official's or employee's authority in the performance of public duties and if the county commissioners believe in good faith that the public interest isat stake. Whether ornot the county may properly expend public funds to defend the official or employee isalways a matter of fact. In the class of cases covered by section 157.061 of the Local Government Code, the county must provide for the legal defense ofa public official or employee inany ofthe ways specified inthe section ifthe commissioners decide that the public interest is involved. An attorney employed by the county to defend a public official oremployee has as aclient only the public official or employee being defended: the attorney may not reveal aspects of the case covered by the attorney-client privilege to anyone, including the commissioners court, so long
asthe privilege isproperly asserted.

Very truly 

# Ll you

A JIM MATTOX Attorney General ofTexas

MARYRELLER Executive Assistant Attorney General

JUUGE ZOLLIE STEAKLEY Special Assistant Attorney General

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RICK GILPIN Chairman, Opinion Committee
Prepared by Don Bustion Assistant Attorney General

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