, - 

THE ATTORNEY GENERAL 

OF TEXAS 

'October 21, 1988 

_ 

Honorable Carl A. Parker opinion No. 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 intentional tort (RQ-1542) 

Dear Senator Parker: 

You ask our opinion on the following question: 

May an independent school district 

lawfully expend funds for attorney's fees for 

defense of a trustee in a civil suit alleging 

an intentional tort 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 opinion with a teacher. The 

teacher has alleged sexual harassment and in 

retaliation of the complaints one trustee has 

voted against renewal of her contract. Two 

lawsuits have been filed, one against the 

school district alleging various civil rights 

violations, and a private lawsuit by the 

former teacher against a trustee alleging an 

intentional tort taking place in the parking 

lot of the school district following a 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 intentional tort. 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 

in his behalf are not proper. 

P. 4925 
Honorable 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 Opinion JM-685 (1987); Attorney General Opinion. H-70 

(1973); see Stewart v. Newton Indenendent School District, 

134 S.W.Zd 429 (Tex. Civ. App. - Beaumont 1939, no 'writ); 

c, ad'n v v' e 51 

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; State v. Aver111 110 S.W.2d 

1173 (Tex. Civ. App. - San Antonio 1937, writ re;'d) ; Graves 

8 Ho&hens v. Diamond Hill 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 n k 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 school district will always 

be a question of fact. Attorney General Opinion JM-824 

(1987). The question which the trustees of the district 

must decide is whether or not the suit really involves the 

interests of the school district or whether the expenditure 

of taxpayer funds will accrue solely to the personal benefit 

of the officer. This office does not make determinations of 

fact in the process of issuing legal opinions: that 

responsibility in this kind of question must rest with the 

judgment of a majority of the disinterested members of the 

school board. && 

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

best judgment to determine based on the information before 

them that the actions of the officer were undertaken in good 

faith within the scope of an official duty. 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, adefense at 

public expense may still be proper. Such an issue can only 

be decided at the trial of the case: standing alone, an 

allegation does not prevent the school board 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 Opinions JR-755 (1987); H-887 (1976); H-544 

(1975). 

Your request letter indicates that you are concerned 

particularly about the application of these general 

principles to.a situation involving the defense with public 

funds of an officer alleged to have committed an intentional 

tort. The general principles discussed. above have been 

applied by the courts to permit the defense of a public 

officer or employee at taxpayer expense in criminal 

prosecutions. Citv f C rsicana 

aenerally Annot., 130 :.L.R: 736 (194;;. 

Babb, suora; Es 

SUMMARY 

A school district may expend public funds 

for the defense of a school trustee in a 

private lawsuit alleging an intentional tort 

if a majority of the disinterested members of 

the school board make a good faith 

determination that a defense of the action is 

in the public interest. A school district 

may not expend public funds to represent the 

purely personal interests of an individual 

trustee. 

~$g$+h 

Attorney General of Texas 

i¶ARY KELLER 

First Assistant Attorney General 

p. 4927 
, 

Honorable Carl A. Parker - Page 4 (JM-968) 

mu MCCRBARY 

Executive Assistant Attorney General 

JUDGE ZOLLIE STEAXLBY 

Special Assistant Attorney General -. ". 

RICK GILPIN 

Chairman, Opinion Committee 

Prepared by D. R. Bustion, II 

Assistant Attorney General 

p. 4928