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 in the March 1996 Democratic Party primary election and “was forced 

into a [r]un-[o]ff [e]lection in April, 1996.” The victor of the runoff election was to run unopposed 

in the November 1996 general election. The incumbent she.ritFprevailed over his opponent by 168 

votes. The opponent 6led an election contest against the sheriff. The sherifF was 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 is prohibii from doii so by the Texas Constitution, see Tar Const. art. III, $8 50,51,52, 

which limits the suthotity of a govemmental entity to employ counsel to situations where kz@mate 

interests ofthegovenrmental entity, not just 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 of public fimds 

would only benefit the officer or employee. Id. at 4. For the reasons stated below, however, we 
The Honorable James Warren Smith, Jr. - Page 2 (un-43 1) 

believe eMion contea& involve persod intea& of the candidate, not interests of the govemmentsl 

entity or the public interest. 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 school board. 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 

8 221.015). Thu&re, the election contest did not atEct the abiity of the school board to convene 

a quorum or otherwise conduct its business. 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’s legal ~cpenscs in an election contest may not be paid gem public funds.” Id. at 4; see aho 

id. at 4-5 (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, as in &tomey General Opinion Jh4-685, tlx argwats for the position that the eIection 

colltest~~legitimatcinterestsofthecouotya9oppoaedtotbesheriffspasoaalintaestsasa 

csnd&tetiJro5cesrenot persuasive and thus 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 his position. As Attorney 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 is the party nominee. The sheriffwas no more legally obliged to 

defend the 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 sherifTs attomey also argues tbat the election contest involved legitimate interests of the 

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 a judgment 

against them or the wunty. Furthermore, we note that you tiled an answer on behalf of the county 

p. 2407 
The 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 that justice be served, not that one candidate prevail over another. In 

this case, as in all others, 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 is prohibited lkxn reimbursing a candidate for a political party’s 

nomination for sherifF for 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 

p. 2408