EAYTOIRNEUGENEBAI. 

### ~FTEXAS

Honorable Jack N. Fant CountyAttorney El Paso County El Paso, Texas OpinionNo. 

### ~~-1385
Re: Whether It is the offlcial duty of the county attorney to represent a county commissioner and county employees in a civil suit against such indlDear Mr. Fant: viduals.

You have requested our opinion on the following questions: "(1) Whether it Is the officialduty

of the County Attorney to represent certain County officialsand personnel in a civil suit in the State District Court under the facts stated?and (2) If it is not the CountyAttorney's officialduty,whether he then hae the right,power and/or authority as CountyAttorney-to represent saidpersons under the facts stated?"
Your request concerns a petition filed in the 65th District Court alleging a conspiracyas having been entered intobetween eightpersons so as to create a monopoly with regard to the use of the El Paso County Coliseum. The plaintiff sues for judgmentagainst defendants jointly and severally, seekingmonetary damages. Among the defendantsnamed in the suit are a duly elected county commissioner,a county employeeand manager of the Coliseum,and threemembers of the CountyRecreationBoard that acts in an advisory capacity to the commissionerscourt. The Countyhas not been named as a party defendantand judgment is aought against the defendants and not the County.

Section 21 of ArticleV of the Constitutionof Texas provides: "The CountyAttorney shall represent the

State in all cases in the District and inferior Courts in their respective counties;but if anyHon. Jack N. Fant, page 2 (~~-1385)

county shallbe included in a district in which there shallbe a district attorney, the respectiveduties of district attorneys and county attorneys shall in such counties be regulatedby the Legislature."'
In Davis v. Wildenthal, 214 S.W.2d 620 (Civ.App. 1951, error ref., n.r.e.), the Courtheld that the county has not been made a party to a suit simplybecause of the fact that some county officials are being sued. Based on this decision, in Attorney General's Opinionw-1036 (1961 this officeheld thatwhere a county is not a party to the suit, the county is neither authorizednor obligated to furnish an attorney for the officialswho are being sued, Attorney General'sOpinion ~~-1.036, it is stated: In

"It is not the duty of the County Attorney to represent either the Sheriff or a Justice of the Peace in FederalAppellate Court. Since the suit is a suit against the Sheriffand a Justice of the Peace individually, the County is not a party and the County is neither authorizednor obligated to furnish an attorney for those two officials. The action of the Grand Jury in refusing to return an indictmentand writing a memorandum about the casewas within the scope of its power and not improper."
In AttorneyGeneral's OpinionO-4955 (1942;, it was held that the commissionerscourtwas authorized to pay a private attorney for representing the court and the county in a suit against the county, county judge, commissioners, county auditor and county treasurer to enjoin them from paying out county funds. However, this suit named the county as a defendant and was viewed as one affecting the county as a whole. In Attorney General's OpinionW-662 (1959), it was held:
"In the present case neitherWichita

Countynor the Commissioners'Court of that countywere ever named as defendants. The Commissioners'Court did not employ or authorize the employment of the attorney. The design and effect of the suitwas not to obstruct or control the performance of official acts, but to recoverdamages from the Sheriff and his bonding company for his failure in the past to properlyperform his officialduties.Hon. Jack N. Fant, page 3 (~~-1385)

In view of the foregoing, it cannotbe said that the county as a whole was interested in or affected by such a suit. Hence, in our opinion, the Commissioners'Court Is not authorized to reimburse the Sheriff for his expenses in defending such suit."
In view of the foregoing, it is our opinion that, since damages are soughtagainst the named defendants and the county is not a named defendant, it cannotbe said that the county as a whole is interested in or affectedby such a suit. Therefore, it is our opinion that you are neither authorized nor required to representas county attorney the named defendants.

SUMMARY The county attorney is neither authorizednor required to represent as county attorney individualsnamed as defendants in a suit inwhich the county is not a party,whereinmonetary damages are sought against the named defendants.

Yours very truly,
WILL WILSON Attorney General of Texas

JR:ms
APPROVED:
OPINION COMMITTEE W. V. Geppert, Chairman Assistant

L. P. Lollar Sam Stone Grady Chandler REVIEWED FOR THE ATTORNEY GENERAL By: Leonard Passmore