KEN PAXTON 

ATTORNEY GENERAL OF TEXAS 

May 11, 2015 

The Honorable Elton R. Mathis Opinion No. KP-0016 

Waller County Criminal District Attorney 

645 12th Street Re: Payment of attorney's fees for members 

of a county commissioners court under 

criminal investigation for potential violations 

of the Open Meetings Act (RQ-1228-GA) 

Hempstead, Texas 77445 

Dear Mr. Mathis: 

You ask two questions about the payment of attorney's fees for current and former 

members of the Waller County Commissioners Court who were under criminal investigation for 

potential violations of the Open Meetings Act. 1 You state that after a criminal complaint was filed 

alleging the violations, the county criminal district attorney's office2 recused itself from the matter. 

Request Letter at 1. The commissioners court "voted to retain counsel to defend county officials 

who may be subject to claims or litigation for actions arising from the performance of a public 

duty in which the public interest requires a defense of such matters." Id. at 2-3. Special 

prosecutors presented their investigation to the grand jury, which declined to return indictments 

against the commissioners. Id. at 2. Thereafter, the commissioners court voted to approve 

payment of legal fees for defending county officials who were the subject of the claims and the 

investigation. Id. In its order, the commissioners court found that: (1) the allegations implicated 

county officials in civil or criminal investigations concerning the performance of their public 

duties; (2) the public interest in the matter "required a vigorous defense"; (3) the district or county 

attorneys could not provide representation because of a conflict of interest; ( 4) the defense required 

outside representation; and (5) the criminal investigation "concluded with no findings of 

1

See Letter from Honorable Elton R. Mathis, Waller Cnty. Crim. Dist. Att'y, to Honorable Greg Abbott, Tex. 

Att'y Gen. at 1 (Nov. 6, 2014), https://www.texasattorneygeneral.gov/opinion/requests-for-opinion-rqs ("Request 

Letter"). 

2

The Waller County Criminal District Attorney has all of the duties that the law assigns to Texas county and 

district attorneys. TEX. Gov'T CODE ANN.§ 44.337(a}-(b) (West 2004). 
The Honorable Elton R. Mathis - Page 2 (KP-0016) 

misconduct." Id. Subsequently, the current and former commissioners submitted invoices they 

had received from the defense counsel for payment by the county. Id. 3 

You first ask whether section 157.901 of the Local Government Code authorizes the 

payment of attorney's fees for a criminal investigation that did not result in any criminal charges 

filed. Request Letter at 1. Under subsection 157.901(a), a "county official or employee sued by 

any entity ... for an action arising 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." 

TEX. Loe. Gov'T CODE ANN. § 157.901(a) (West 2008). Subsection 157.901(b) requires a 

commissioners court to employ and pay private counsel for a representation under subsection (a) 

when "additional counsel is necessary or proper," 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." Id. § 157.901(b). A court of appeals has determined that subsection 157.901(b)'s 

reference to criminal charges concerns circumstances that require a county to employ private 

counsel to represent its officials and employees in civil, not criminal, matters. White v. Eastland 

Cnty., 12 S.W.3d 97, 102 (Tex. App.-Eastland 1999, no pet.). Section 157.901 does not address 

county authority to provide legal representation to its officials and employees in criminal matters. 

See White, 12 S.W.3d at 102. 

As the court in White recognized, however, a commissioners court has general authority to 

employ private attorneys in the absence of constitutional or statutory limitations. Id. at 100 (stating 

that a county's "implied powers include the authority to contract with experts when necessary, 

including attorneys"); see also Guynes v. Galveston Cnty., 861 S.W.2d 861, 863-64 (Tex. 1993) 

(determining that a commissioners court may employ attorneys provided that doing so does not 

usurp other officials' statutory duties); Tex. Att'y Gen. Op. No. JM-1276 (1990) at 11 (stating that, 

with respect to counties, section 157.901 "does not supplant the common-law rule"). This office 

has summarized the standards that a court would likely utilize when reviewing the payment of 

criminal defense fees: 

Provided that the official or employee is not found guilty, the 

commissioners court may reimburse criminal defense costs upon its 

determination that the prosecution was for an act performed in the 

bona fide performance of official duties and that the expenditure will 

serve a public interest and not merely an officer's or employee's 

private interest. 

3

If a governmental body's actions are determined to violate the Open Meetings Act, they are voidable and 

subject to being set aside by judicial proceeding. See TEX. Gov'r CODE ANN. § 551.141 (West 2012); Smith Cnty. v. 

Thornton, 726 S.W.2d 2, 2-3 (Tex. 1986). 
The Honorable Elton R. Mathis - Page 3 (KP-0016) 

Tex. Att'y Gen. Op. No. GA-0523 (2007) at 4.4 Whether employing legal counsel in such 

circumstances "implicates a legitimate public interest is a question of fact to be resolved by the 

political subdivision's governing body in the first instance." Tex. Att'y Gen. Op. No. JC-0047 

(1999) at 3; White, 12 S.W.3d at 104 (determining that whether a county will provide criminal 

counsel to its officers or employees in appropriate circumstances is a matter "of governmental 

policy and discretion"). Accordingly, a county has the authority to pay attorney's fees for a 

member of a commissioners court who sought legal representation for a criminal investigation that 

did not result in any criminal charges filed, provided that the commissioners court determines, 

subject to judicial review, that the payment will serve a public interest and not merely the 

member's private interest. 

While a county may have the authority to pay for the criminal defense of county officials 

in principle, you also ask whether individual members of a commissioners court who were under 

criminal investigation may vote on the approval of county payment of their own attorney's fees 

and the fees of other commissioners subject to the investigation. Request Letter at 1. As a matter 

of public policy, a public official may not cast the deciding vote in a matter in which the official 

has a direct, personal interest. Hager v. State ex rel. Te Vault, 446 S.W.2d 43, 49-50 (Tex. Civ. 

App.-Beaumont 1969, writ refd n.r.e.). This office determined in a prior opinion that public 

policy precluded a city council member who had been indicted for violating the Open Meetings 

Act from voting not only on county payment of attorney's fees for the member's own defense but 

also on payment of attorney's fees for the defense of other council members indicted for the same 

offense. Tex. Att'y Gen. Op. No. JC-0294 (2000) at 1--4. The opinion observed that it would "be 

extremely difficult for any of the indicted council members to make a disinterested determination 

as to the other council members indicted for the same offense." Id. at 3. Following the same 

reasoning, a court would likely conclude that public policy precludes a member of a commissioners 

court under criminal investigation from voting on county payment of the member's criminal 

defense fees or the fees of other members subject to the same investigation.5 

4

Citing Attorney General Opinion JC-0294, you suggest that a county may not pay for counsel to provide 

criminal defense services to a county official unless charges are filed and the official is found not guilty. Request 

Letter at 3--4. In that opinion, city officials had been indicted, and because "[t]he city may not pay the expenses of an 

official who is found guilty of the charges [, the city council] must therefore defer its decision to pay the legal expenses 

until after disposition of the charges." Tex. Att'y Gen. Op. No. JC-0294 (2000) at 9. The opinion should not be read 

as precluding the payment of attorney's fees for services rendered in a criminal matter that concludes favorably at the 

grand jury stage. 

5

You do not ask and we do not address the authority of members of a governing body who are not subject to 

criminal investigation to approve payment of attorney's fees for other members who are under criminal investigation. 

Cf Tex. Att'y Gen. Op. No. GA-0554 (2007) at 2 (stating that generally a proposition is enacted if it receives "a 

majority vote of the members present and voting at a meeting where a quorum is present" (citation and quotation 

marks omitted)); Comm 'rs Ct. of Limestone Cnty. v. Garrett, 236 S.W. 970, 973 (Tex. Comm'n App. 1922, judgm't 

adopted) (stating that the "general rule is that, in the absence of an express [statutory] provision to the contrary, a 

proposition is carried in a deliberative body by a majority of the legal votes cast"). 
The Honorable Elton R. Mathis - Page 4 (KP-0016) 

SUMMARY 

A county has the authority to pay attorney's fees for a 

member of a commissioners court who sought legal representation 

for a criminal investigation that did not result in any criminal 

charges filed, provided that the commissioners court determines, 

subject to judicial review, that the payment will serve a public 

interest and not merely the member's private interest. 

A court would likely conclude that public policy precludes a 

member of a commissioners court under criminal investigation from 

voting on county payment of the member's criminal defense fees or 

the fees of other members subject to the same investigation. 

CHARLES E. ROY 

First Assistant Attorney General 

BRANTLEY STARR 

Deputy Attorney General for Legal Counsel 

VIRGINIA K. HOELSCHER 

Chair, Opinion Committee 

WILLIAM A. HILL 

Very truly yours, 

~?~ KEN PAXTON 

Attorney General of Texas 

Assistant Attorney General, Opinion Committee