EAYTOIRNEUGENEBAI. 

~FTEXAS 

Honorable Jack N. Fant 

County Attorney 

El Paso County 

El Paso, Texas 

Opinion No. ~~-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 official duty 

of the County Attorney to represent certain 

County officials and personnel in a civil 

suit in the State District Court under the 

facts stated? and (2) If it is not the 

County Attorney's official duty, whether he 

then hae the right, power and/or authority 

as County Attorney-to represent said persons 

under the facts stated?" 

Your request concerns a petition filed in the 65th 

District Court alleging a conspiracy as having been entered 

into between eight persons so as to create a monopoly with 

regard to the use of the El Paso County Coliseum. The plaintiff sues for judgment against defendants jointly and severally, seeking monetary damages. Among the defendants named 

in the suit are a duly elected county commissioner, a county 

employee and manager of the Coliseum, and three members of 

the County Recreation Board that acts in an advisory capacity 

to the commissioners court. The County has not been named as 

a party defendant and judgment is aought against the defendants 

and not the County. 

Section 21 of Article V of the Constitution of Texas 

provides: 

"The County Attorney shall represent the 

State in all cases in the District and inferior 

Courts in their respective counties; but if any 
Hon. Jack N. Fant, page 2 (~~-1385) 

county shall be included in a district in 

which there shall be a district attorney, the 

respective duties of district attorneys and 

county attorneys shall in such counties be 

regulated by the Legislature."' 

In Davis v. Wildenthal, 214 S.W.2d 620 (Civ.App. 

1951, error ref., n.r.e.), the Court held that the county 

has not been made a party to a suit simply because of the 

fact that some county officials are being sued. Based on 

this decision, in Attorney General's Opinion w-1036 (1961 

this office held that where a county is not a party to the 

suit, the county is neither authorized nor obligated to 

furnish an attorney for the officials who are being sued, 

Attorney General's Opinion ~~-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 Federal Appellate 

Court. Since the suit is a suit against 

the Sheriff and a Justice of the Peace individually, the County is not a party and the 

County is neither authorized nor obligated to 

furnish an attorney for those two officials. 

The action of the Grand Jury in refusing to 

return an indictment and writing a memorandum 

about the case was within the scope of its 

power and not improper." 

In Attorney General's Opinion O-4955 (1942;, it was 

held that the commissioners court was 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 Opinion W-662 (1959), it 

was held: 

"In the present case neither Wichita 

County nor the Commissioners' Court of that 

county were ever named as defendants. The 

Commissioners' Court did not employ or authorize the employment of the attorney. The design and effect of the suit was not to obstruct 

or control the performance of official acts, 

but to recover damages from the Sheriff and 

his bonding company for his failure in the 

past to properly perform his official duties. 
Hon. Jack N. Fant, page 3 (~~-1385) 

In view of the foregoing, it cannot be 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 sought against the named defendants and the county 

is not a named defendant, it cannot be said that the county 

as a whole is interested in or affected by such a suit. Therefore, it is our opinion that you are neither authorized nor 

required to represent as county attorney the named defendants. 

SUMMARY 

The county attorney is neither authorized nor required to represent 

as county attorney individuals named 

as defendants in a suit in which the 

county is not a party, wherein monetary 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