### KEN PAXTON
ATTORNEY GENERAL OF TEXAS May 11, 2015

The Honorable Elton R. Mathis OpinionNo. KP-0016 Waller County Criminal District Attorney 645 12th Street Re: Payment ofattorney's fees for members of a county commissioners court under criminal investigation for potential violations ofthe 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 ofthe Waller County Commissioners Court who were under criminal investigation for potential violations ofthe OpenMeetings Act. 1 You statethat after a criminal complaintwas filed allegingthe violations,thecountycriminal district attorney's office2recuseditselffrom 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 ofa public duty in which the public interest requires a defense of such matters." 

### Id. at 2-3. Special prosecutors presented their investigation to the grandjury, which declined to return indictments against the commissioners. Id. at 2. Thereafter, the commissioners court voted to approve payment oflegal fees for defending county officials who were the subject ofthe 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 inthe matter "required a vigorous defense"; (3) the district or county attorneys couldnotproviderepresentationbecause ofa conflictofinterest; (4) the defenserequired outside representation; and (5) the criminal investigation "concluded with no findings of

1 See Letter from Honorable Elton R. Mathis, WallerCnty. Crim. Dist. Att'y, to Honorable GregAbbott, Tex. Att'y Gen. at 1 (Nov. 6, 2014), https://www.texasattorneygeneral.gov/opinion/requests-for-opinion-rqs ("Request Letter").

2The Waller County Criminal District Attorney has all ofthe duties thatthe 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 paymentby the county. Id. 3

You first ask whether section 157.901 of the Local Government Code authorizes the payment ofattorney'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 anyentity

...for an action arisingfrom the performance ofpublic duty is entitledto be represented by the district attorney ofthe district in which the county is located, the county attorney, orboth." 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 ofappeals 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 employprivate attorneys inthe absence ofconstitutional orstatutorylimitations. 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 otherofficials' statutory duties); Tex. Att'yGen. Op. No. JM-1276 (1990) at 11 (statingthat, with respect to counties, section 157.901 "does not supplant the common-lawrule"). 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 courtmay reimburse criminal defense costs upon its determination that the prosecution was for an act performed in the bonafide performance ofofficialduties andthatthe expenditurewill
serve a public interest and not merely an officer's or employee's private interest.

3Ifa governmental body's actions are determined to violate the Open Meetings Act, they are voidable and subjectto being set aside byjudicial proceeding. See TEX

.Gov'rCODE 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 offact 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 memberofa commissioners courtwho soughtlegalrepresentationfor acriminal investigationthat 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 ofcounty officials in principle, you also ask whether individual members ofa commissioners court who were under criminal investigation may vote on the approval ofcounty payment oftheir own attorney's fees and the fees ofother commissioners subjectto the investigation. Request Letter at 1. As a matter ofpublic 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 ofattorney's fees for the member's own defense but also onpayment ofattorney's fees for the defense ofother council members indicted for the same offense. Tex. Att'y Gen. Op. No. JC-0294 (2000) at 1--4. The opinion observed that itwould "be extremely difficult for any ofthe 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, acourtwouldlikelyconcludethatpublic policyprecludes amemberofacommissioners court under criminal investigation from voting on county payment of the member's criminal defense fees orthe fees ofother members subjectto the same investigation.5

4Citing 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 notpaythe expenses ofan official who is found guilty ofthe charges [, the city council] must therefore deferits decisionto paythe legal expenses until after disposition ofthe charges." Tex. Att'y Gen. Op. No. JC-0294 (2000) at 9. The opinion should not be read
as precludingthe payment ofattorney's fees for services rendered in a criminal matterthat concludes favorably at the grandjury stage.

5You do not ask and we do not address the authority ofmembers ofa governing body who are not subject to criminal investigation to approve payment ofattorney'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 ifit receives "a majority vote ofthe 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 ofthe 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 ofa 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 courtwould likely conclude thatpublic policyprecludes a memberofa commissioners courtundercriminal investigationfrom voting oncountypayment ofthe member's criminal defense fees or the fees ofothermembers subjectto the same investigation.

CHARLES E. ROY FirstAssistant 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 ofTexas

Assistant Attorney General, Opinion Committee