Honorable Thomas B. Sehon Opinion No. m-824 

Falls County District Attorney 

Falls County Courthouse Re: Authority of a county 

Marlin, Texas 76661 to provide 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 a federal lawsuit 

brought by a member of the Falls County Commissioners 

Court against you, both individually and in your capacity 

as district 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 a defendant, in both 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 to provide 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) By virtue 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 an attorney to 

defend the officials he has sued and 

(b) from participating in meetings about the 

lawsuit conducted between the commissioner's 

court and the attorney hired to defend the 

county officials? 

p. 3921 
Honorable Thomas B. Sehon - Page 2 (m-824) 

1 

7 

Falls County is obligated to provide legal counsel to the 

county attorney and sheriff if the commissioners court 

decides that the suit involves the public interest. Local 

Gov't Code 5157.061; Attorney General Opinion JM-755 

(1987). We have on several occasions considered whether a 

public body, such as a county, may provide for legal 

counsel to defend public officers and employees subjected 

to litigation in the course of their public duties. A 

general rule can be distilled 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 is permissible for the body 

to employ attorneys to defend the 

action. . . . The propriety of such a step 

is not 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, 130 A.L.R. 736 (1941). 

We emphasize that the authority of the county to 

employ attorneys to defend 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 of the public interest. 

Attorney General Opinions 374-755 (1987); H-887 (1976). 

The county may not use public funds when the principal 

interest to be defended is a purely private one. Attorney 

General Opinion W-726 (1970); & Citv of Del 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 to protect the public interest in a suit 

brought against a public official or employee will always 

be a question of fact. The question that the 

commissioners must decide is whether or not the suit 

? 

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

really is one that concerns the interests of the county or 

whether the benefits provided by public 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 in this kind of question must 

rest with the judgment of the county commissioners who 

must vote whether to expend public funds in a particular 

case. 

Such a decision does not have to conclude that the 

county officer must have been right, or that 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 of an official duty 

(Tex. Civ. App. 1894, no writ): . Attorney General Opinion 

M-726 (1970). Bven if the suit contains allegations that 

a county official or employee has acted outside his 

authority, the expenditure of public funds in defense 

would still be proper. Such an issue can only be decided 

at the trial of the case ; standing alone, the allegation 

itself cannot be the basis for a refusal to find that the 

defense of the public officials 

interest, 

is outside of the public 

except in the most extreme of cases. 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 to pay private counsel 

to defend 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 to be represented by the district 

attorney of the district in which the county 

is located, the county attorney, or both. 

(b) If additional counsel is necessary or 

proper in the case of an official or 

employee provided legal counsel under Subsection (a) or if it reasonably appears that 

the act complained of may form the basis for 

the filing of a criminal charge against the 

official or employee, the official 

employee is entitled to have 2: 

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

commissioners court of the county employ and 

pay private counsel. 

(c) A county official or employee is not 

required to accept the legal counsel 

provided in this section. 

(4 In this section, 'nonpolitical 

entity' means an individual, firm, corporation, association, or other private entity. 

It does not include the state, a political 

subdivision of the state, a city, a special 

district, or other public entity. 

This statute, adopted by the legislature in 1973 and 

placed in the Local Government Code by a nonsubstantive 

revision in 1987, is declaratory of at least a part of the 

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 in a certain class of cases. As 

such, it can be construed to harmonize 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 of the ground embraced by the 

common-law rule. The statute does not -- and cannot -- 

repeal the implied condition imposed by the constitution 

that a legitimate interest of the 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, or both, to defend 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). 

p. 3924 
I-- 

- 

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

an individual, firm, 

association, or other 

corporation, 

private entity. 

does not include the state, a politic:: 

subdivision of the state, a city, a special 

district, or other public entity. 

Local Gov*t Code 5157.061(d). It is apparent to us that 

the litigation at hand has not been instituted by a public 

entity. 

A single county commissioner has 119 authority to 

bring suit in the name of the county. A county is 

manifestly a unit, and is the agency of the 

whole county. The respective members of the 

commissioners court are therefore primarily 

representatives of the whole county, and not 

merely representatives of their 

precincts. 

respective 

The duty of the commissioners 

court is to transact the business, protect 

the interest, and promote the welfare of the 

county as a whole. 

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.Zd 252 (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" -- a private person 

who happens to be a county official, but who is seeking 

redress for alleged wrongs merely personal to him even 

though they may involve public officials acting against 

him in their official capacities. 

We also note that subsection (b) of'section 157.061 

may apply in this case. That provision provides, in part, 

that: 

If additional counsel is Becessarv or 

prooer in the case of an official 

employee provided legal counsel . . . t:: 

official or employee is entitled to have the 

commissioners court of the county employ and 

pay private counsel. (Emphasis added.) 

p. 3925 
I 

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

Local Gov't Code, 5157.061(b). In the usual case under 

section 157.061, the defense of a public servant is to be 

undertaken by the county attorney, the district attorney, 

or both. Obviously, you, as the district attorney, cannot 

be expected, on prudential grounds, or otherwise, to 

defend yourself. Nor may you, as a formal matter of legal 

ethics, represent your co-defendant, something that would 

otherwise be your duty under section 157.061 of the Local 

Government Code. See. e.a. Supreme Court of Texas, 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 is necessary 

and proper for private counsel to be employed and paid. 

You also ask whether the county commissioner bringing 

the suit is (a) disqualified from voting on questions 

concerning the hiring and payment by the commissioners 

court of an attorney to defend the public officials he has 

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 an oath to abjure certain actions likely 

to promote so-called %onflicts of interest." The precise 

purpose of the provision is to 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. S ee 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 a commissioner with a prohibited 

interest from voting. But if such a vote is cast, and ,it 

is a deciding one, then the contract is void. Bexar 

Countv v. Wentworth, m. ? 

Members of the commissioners court must avoid 

acquiring or furthering an interest in any contract with 

the county. Attorney General Opinions H-624 (1975): H-329 

(1974) . ? 

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

P 

- 

In the instant case, one member of the commissioners 

court, acting solely as a private citizen, is suing the 

county attorney and the sheriff. The commissioners court 

must decide whether or not to enter into a contract with a 

private attorney to provide for the legal defense of the 

the two county officials. Such a contract will not result 

in the possibility of any direct pecuniary gain by the 

commissioner bringing the suit, because he will not be 

either a party or a beneficiary 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 be beneficiaries 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 of damages 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 is clear that Section 81.002 of the Local 

Government Code is limited in application to those cases 

where action by a county commissioner will prompt the flow 

of pecuniary benefits from the county to him, whether 

directly or indirectly. In other words, money paid 

because of a contract entered into by the county must find 

its way 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 of a gain from the county, and, ultimately, 

its taxpayers, through the execution of a contract. 

In no previous case has the prohibition against a 

county commissioner having an interest in a contract been 

applied to a situation where funds expended by the county 

pursuant to the contract could not ao to a 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 to defend 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 a lawyer cannot possibly 

influence the way the commissioner deals with the official 

business of the county, and will not later give rise to a 

p. 3927 
Honorable 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, no writ).' 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 in Te;tseforbids a public 

official from casting a decldznq matter 

concerning an issue in which he has a di:ict: adverse 

interest. If, by such a single vote, a public official 

can prevent an otherwise proper decision by the 

commissioners court that it is in the public interest to 

employ and pay for counsel to defend a public official in 

a legal action, then the official is barred from voting. 

In &g,ez v. State ex. 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 a city council 

member who voted for a resolution to authorize legal 

action to thwart a recall election aimed solely at him. 

The court noted that while his vote was a decisive one in 

securing a particular course of action, which was 

otherwise unremarkable, he was disqualified gs a matter of 

&8~ from voting because he had 'Ia direct personal and 

pecuniiary interest in the matter under consideration." 

& at 48 (emphasis added). The decision in Raaer goes to 

some length to analogize the situation before it to cases 

involving judicial and quasi-judicial functions, citing 

inter alia Tex. Const. art. V, 511 (judges may not sit in 

cases in which they are interested). 

Thus, this rule is bottomed on principles different 

from those concerning the common law conflict-of-interest 

doctrine. A decision by a county 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 a specified interest. The prohibitions in 

section 171.003 do not apply here; a lawsuit brought by a 

commissioner is not a "business entity" as defined in that 

section. 

p. 3928 
/- 

r 

- 

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

and pay counsel to defend a public official or employee at 

county expense is a quasi-judicial act. A 

commissioner acts in a 

county 

quasi-judicial capacity "when, in 

the exercise of his functions, he is required to pass upon 

facts and determine . . . action[s] by the facts found." 

62 S.W.2d 366, 370 (Tex. Civ. 

'd in Dart on other aro unds, 93 

S.W.2d 382 (Tex. 1926). Such a judgment is at the very 

heart of the decision which must be made in deciding 

whether to provide legal assistance to a public servant 

pursuant to section 157.061 of the Local Government Code. 

Thus, the commissioner bringing the action is barred from 

casting a deciding vote on any aspect of the matter, 

including whether to employ and pay defense counsel 

because of his obviously adverse interest. !i?a!zL zsYJxs. 

You also ask whether 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 to defend the 

public officials being sued. The analysis of 

question is best approached 

your 

by considering the nature of 

the relationship established by the use of public funds to 

defend suits against public officials and employees. The 

attorney representing a public official or employee has as 

a client the official or employee named as a 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 in the law. For if the 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 or employee must retain 

in confidence all of the privileged aspects of the 

representation of the public 

the client. 

official or employee who is 

See. e . a 

Governing the State Bar' 

Supreme Court of Texas, Rules 

of Texas, 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 of the representation provided with anyone 

other than the client. The county, per se, is not a 

client; consequently, there should be no occasion for the 

county commissioner bringing suit to attend any discussion 

of the aspects of the case subsumed by the privileged 

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

lawyer-client relationship. The commissioners court may 

not hold such discussions so long as a proper assertion of 

the attorney-client privilege is before them. 

SUMMARY 

A county may expend public funds for the 

employment of a private attorney to represent county officials and employees who have 

been sued in their official and individual 

capacities if the suit involves an action of 

the official or employee 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 is at stake. Whether or not the 

county may properly expend public funds to 

defend the official or employee is always 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 of a public official or 

employee in any of the ways specified in the 

section if the commissioners decide that the 

public interest is involved. An attorney 

employed by the county to defend a public 

official or employee has as a client 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 

as the privilege is properly asserted. 

Very truly Ll you 

A 

JIM MATTOX 

Attorney General of Texas 

MARYRELLER 

Executive Assistant Attorney General 

JUUGE ZOLLIE STEAKLEY 

Special Assistant Attorney General 

p. 3930 
Honorable Thomas B. Sehon - Page 11 (.Iw=f+) 

RICK GILPIN 

Chairman, Opinion Committee 

Prepared by Don Bustion 

Assistant Attorney General 

p. 3931