DAN MORALES

ATTORNEY GENERAL 

### QBffice of the 9lttornep QBeneral &ate of QtZexae htnlaty 29,1997

The Honorable James Warren Smith, Jr. Frio County Attorney 500 East San Antonio, Box 1 Pear& Texas 78061-3100 Opinion No. DM-43 1
Be: wttethex a county is authorized to reimburse attorney’s fees incuo-ed in defending an election contest suit to a candidate for a political party’s nomination for sheriff (RQ-9 14)

Dear Mr. smith
You ask whether Frio County (the “county”) is authorized to reimburse the sheriff for attorney’s foes he incurred in defending an election contest suit. You explain that the incumbent .&uWhad aeverd opponents inthe March 1996Democratic Party primary election and “was forced into a [r]un-[o]ff [e]lection in April, 1996.” The victor ofthe runoff election was to run unopposed inthe November 1996general election. The incumbent she.ritFprevailed over his opponent by 168 votes. The opponent 6led an election contest against the sheriff. The sherifFwas represented by private counsel and you represented the county clerk as an %nnamed defbndant/contestee.” The lawsuit was resolved in favor of the incumbent sheri& but the court explicitly retused to award attorne$s&estotheprev&igparty. Theshaitfsattomeyhasnowprwentedaclaimtothecounty
on behalf of the sheriff seeking reimbursement for his attorney’s fees in the election contest suit.
We agree with your analysis tbat none of the statutes you mention requires the county to reimburse the sheriff for his attorney’s fees in the election contest1 Moreover, we believe that the county isprohibii from doii sobythe Texas Constitution, see Tar Const. art. III, $8 50,51,52, which limitsthe suthotity of a govemmental entity to employ counsel to situations where kz@mate interests ofthegovenrmental entity, notjust the personal interests of an officer or employee, require assertionofaiegafdefbnse. AttomeyGeneralOpinionDM-107(1992)at3. Asageneralrnatter, the nature of the interests at stake involves questions of fad and therefore this o&e usually defers tothegovernmentalentitytodecideinthefintinstance~~the~atisrrueinaparticular lawsuit concum the interests of the governmental entity or whether the expenditure ofpublic fimds would only benefit the officer or employee. Id. at 4. For the reasons stated below, however, weThe Honorable James Warren Smith, Jr. - Page 2 (un-43 1)

believe eMion contea&involve persod intea& ofthe candidate, not interests of the govemmentsl entity or the publicinterest. and that a governmental entity will always be precluded tlom paying for the attorney’s fees of an official in an election contest, or reimbursing an official for such attorney’s fees, as a matter of law.

In Attorney General Opiion JA4-685,this office considered whether a school district was autbonzedto~publicfiudstodefadaschwlboardmemberinanelectionwntestsuit. This office cowluded that the election contest against the succemful school board member candidate did not involve the k&mate inter& ofthe schoolboard. First,the opinion noted, a succes&l candidate whoisthesubjedofanelectioncontesttakesoffi~andis~ltledtooccu~theoffi~pendiogtbe resolution of the suit. See Attorney General opinion JM-685 (1987) at 2-3 (citing Elec. Code 8221.015). Thu&re, the election contest did not atEct the abiity of the school board to convene aquorum or otherwise conduct itsbusiness. Second, and more importantly, this office opined that

“[t]heeledioncontestin~caseistbelaststepoftheprocessbywhichanindividualestablishesthat hehasbeenelectedtntstee. Itisdiflicuhtojustayonamlgrolmdsaschooldistrict’sfihancialsupport of one contender in an election contest. The courts of other states have held that an individual oIIicer’slegal ~cpenscs in an election contest may not be paid gem public funds.” Id. at4;see aho id. at4-5 (citing cam from other jurisdictions). AlthoughwehavefbundnoTerrascasedire#lyonpoint,Chundlerv. Saenr, 315 S.W.2d87 (Ten. Civ. App.-San Antonio 1958,writ re.fd n.r.e.), also recognizes this principle. In allowing the caycounciltousecityfundstopayattomey’s~inthedefiaseofasuitdigputingtheproperstatute governing the election of city 05ceq the court stat& “This is not an election contest between parties as individuals, but a suit for injunction against the governing body of said city, the e-t&t of which would be to disqualify and remove t?om 05ce a majority of the city aldermsn and thereby disrupt the lawtbl functions of the city council.” Id. at 89-90.
Here, asin&tomey General OpinionJh4-685,tlx argwats for the position that the eIection colltest~~legitimatcinterestsofthecouotya9oppoaedtotbesheriffspasoaalintaestsasa csnd&tetiJro5cesrenot persuasive andthus tdthtdy support our conclusion that re&bumement of 05cials for attorney’s fees incurred in election contests from public funds is impermGile as a matteroflaw. Inhisletterrequestingreimb t flom the county, the sheritTs attorney suggests thatthesheriff,asanioarmbentwhohadbeen”reeleded”bythevotersinthenmoff,was”obIiged” to defend hisposition. AsAttorney Oened Opiion JM-685 suggests, however, an election contest of a primary election or runoff is the last step of the process by which an individusl rum for party nomination and establishes that he isthe party nominee. The sheriffwas no more legally obliged to defendthe election contest than he was to run for election or reelection, and the election contest did not involve interests of the sheriffas a county 05cial but rather as a candidate for 05ce.
The sherifTsattomey also arguestbat the election contest involved legitimate interests ofthe county because the contestant attacked the county clerk, election supervisor, and other county officials. These individuals were not parties to the suit and there was no possibility of ajudgment againstthem or the wunty. Furthermore, we note that you tiled an answer on behalf of the county

p. 2407The Honorable James Warren Smith, Jr. - Page 3 (DM-43 1)

clerk as an “utmamed defendant/wnte&ee” and there-fore appear to have represented any interests ofthewuntyinthesuit. Finally, the argument that the sh&s sucwssfbl defense of the suit saved the wunty the expense of holding a new runoff election must fail. In any election contest, it is the interest of the authotity holding the election thatjustice be served, not that one candidate prevail over another. In this case, asin allothers, it would have served the electorate’s interests, and thus county’s interests, to hold a new runoff election ifthe wurt had found a basis to void the contested election.2

A wunty isprohibited lkxn reimbursing a candidate for apolitical party’s nomination for sherifFfor attorney’s fees iwurred in defending sn election contest suit. See Tex. Const. art. III, $8 50.51.52.

DAN MORALES Attorney General of Texas
JORGE VEGA First Assistant Attorney General
SARAH I. SHIRLEY Chair, Opiion Committee Prepared by Mary R Crouter Asaktant Attorney General

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