, -



### THE ATTORNEY GENERAL OF TEXAS

'October21, 1988

_

Honorable CarlA. Parker opinionNo. JM-968 Chairman Education Committee Re: Authority of a school disTexas State Senate trict to expend funds to defend P. 0. Box 12068 a trustee in an action alleging Austin, Texas 78711 an intentionaltort (RQ-1542)

Dear Senator Parker:

You ask our opinion on the followingquestion:
May an independent school district lawfully expend funds for attorney's fees for defense of a trustee in a civil suit alleging
an intentionaltort against the trustee?

You furnish the following statement of facts in support of your question:

Circumstances exist in the Huffman I.S.D. whereby a trustee became embroiled in a difference of opinionwith a teacher. The teacher has alleged sexualharassment and in retaliationof the complaintsone trustee has voted against renewal of her contract. Two lawsuitshave been filed,one against the school district allegingvarious civil rights violations, and a private lawsuit by the former teacher against a trustee alleging an intentionaltort taking place in the parking lot of the schooldistrict followinga school board meeting.
Apparently, the school board of trustees has undertaken to provide legal counsel for the trustee in defense of the civil suit alleging the intentionaltort. The trustee has signed a letter of agreement agreeing to reimburse the district in the event it is determined that payments for attorney's fees inhis behalf are not proper.

P. 4925Honorable Carl A. Parker - Page 2 (JM-968)

An independent school district may retain and pay attorneys to protect its interests in a lawsuit, even though the suit is brought against an individual officer or employee of the district. Educ. Code 5 23.26: Attorney General OpinionJM-685 (1987);Attorney General Opinion. H-70 (1973);see Stewartv. Newton IndenendentSchool District, 134 S.W.Zd 429 (Tex. Civ. App. - Beaumont 1939, no 'writ); c, 51 a d'n v v' e S.W.2d 826 .(Tex. Civ. App. - San Antonio 1932, writ dism'd):Arrinaton v. Jones, 191 S.W. 361 (Tex.Civ. App. - Texarkana 1917,no writ).

The authority of the district to employ attorneys is limited to those situations where the legitimate interests of the district, and not merely the personal interests of the officer, require the assertion of a vigorous legal defense on behalf of the public interest. Attorney General Opinions JM-824, Const. art. III, JM-685 (1987); H-70 (1973); M Tex. 59 50, 51, 52; Statev. Aver111 110 S.W.2d 1173 (Tex.Civ.App. - SanAntonio 1937,writ re;'d);Graves 8 Ho&hens v. DiamondHill I denendent School District, 243 S.W. 638 (Tex.Civ. ADD. - F&t Worth 1922. no writ). See ah9’ Citv of C rsicana--v. Babb 290 S.W. 736 (Tex. -Co-% App. 1927, jud&ent adopted):Citv 

### f Del Rio

. Lowe, 111 S.W.2d 1208 (Tex.Civ. APP. - San ktonio 1937),m'd on other arounds, 122 S.W.Zd 191 (Tex. 1938); Citv National Da k n of Austin v. Presidio County, 26 S.W. 775 (Tex. Civ. APP. 1894, no writ); Attorney General Opinions NW-252, NW-157 (1980);H-887 (1976); H-544 (1975);WW-1464 (1962); Letter Advisory No. 24 (1973).
Thus, the question of the lawfulness of expending public funds to protect the public interest in a suit brought against the officer of a schooldistrictwill always be a question of fact. Attorney General Opinion JM-824 (1987). The questionwhich the trustees of the district must decide iswhether or not the suit really involves the interestsof the school **district** orwhether the expenditure of taxpayer fundswill accrue solely to the personal benefit of the officer. This officedoes notmake determinations of fact in the process of issuing legal opinions: that responsibility in this kind of questionmust rest with the judgment of a majority of the disinterestedmembers of the schoolboard. &&

We emphasize that in making such a decision, the trustees do not have to conclude absolutely in advance that the officer sued is blameless, or that the suit ultimately will be defeated. && The trustees need only use their

P- 4926Honorable Carl A. Parker - Page 3 (JM-968)

best judgment to determine based on the information before them that the actions of the officerwere undertaken in good faithwithin the scope of an officialduty. L See al Q Attorney General Opinion **M-726** (1970). Even when a lawsu:t contains allegations that seem to place the actions of, .the officer outside the scope of official-du~ties, a defense at public expensemay stillbe proper. Such an issue can only be decided at the trial of the case: standing alone, an allegationdoes not prevent the schoolboard from.providing for the defense of an officer. Attorney General Opinion **JM-824** (1987); See. e.a., Citv of Del Rio, sunra; see also Attorney General OpinionsJR-755 (1987);H-887 (1976);H-544 (1975).

Your request letter indicatesthat you are concerned particularly about the application of these general principles to.a situation involvingthe defense with public funds of an officer alleged to have committed an intentional tort. The general principlesdiscussed. above have been appliedby the courts to permit the defense of a public officer or employee at taxpayer expense in criminal prosecutions. Citv f C rsicana aenerallyAnnot., 130 :.L.R: 736 (194;;.Babb, suora; Es

SUMMARY

A schooldistrictmay expendpublic funds for the defense of a school trustee in a private lawsuit alleging an intentional tort if a majority of the disinterestedmembers of the school board make a good faith determinationthat a defense of the action is in the public interest. A school district may not expendpublic funds to represent the purelypersonal interestsof an individual trustee. 

# ~$g$+h

Attorney General of Texas i¶ARYKELLER FirstAssistantAttorney General

p. 4927,

Honorable CarlA. Parker - Page 4 (JM-968)



### mu MCCRBARY ExecutiveAssistant Attorney General

JUDGE ZOLLIE STEAXLBY SpecialAssistantAttorney General -. ".

RICK GILPIN Chairman, Opinion Committee
Preparedby D. R. Bustion, II Assistant Attorney General

p. 4928