DAN MORALES 

ATTORNEY CENERAL 

@ffice of tip Elttornep c!Seneral 

.$&ate of Zlkxas 

The Honorable Judith Zaffirini 

Chair, Committee on Health 

and Human Services 

Texas State Senate 

P.O. Box 12068 

Austin, Texas 78711 

November 12,1998 

Opinion No. DM-488 

Re: Whether the board of directors of an appraisal 

district may reimburse attorney fees for the chief 

appratser who was a defendant in a criminal action, 

and related questions (RQ-1064) 

Dear Senator Zaffirini: 

You ask generally whether an appraisal district’s board of directors may reimburse attorney 

fees the district’s chief appraiser incurred in defending a criminal action for official misconduct. We 

conclude that the district may do so under the common law if the board makes certain preliminary 

determinations. Because a governmental body must determine its authority to reimburse an officer’s 

or employee’s attorney fees on a case-by-case basis, our conclusion is necessarily limited to the 

situation you describe. This conclusion overrules, to the extent of inconsistency, several attorney 

general opinions written since 1990. 

Yourninequestions arebasedupona situationin AtascosaCounty. Yourecountthatin 1993 

the chief appraiser ofthat county, Mr. Vernon Warren, was indicted for alleged official misconduct. 

The indictment centers upon a certain property that had been valued as qualified open-space land 

under Tax Code chapter 23, subchapter D. According to the indictment, Mr. Warren, as chief 

appraiser, determined in 1992 that a change in the use of the land had occurred and that the land 

could no longer be valued as qualified open-space land. ’ Again, according to the indictment, 

Mr. Warren failed to notify the landowners “as soon as possible after making the determination,” 

as Tax Code section 23.55(e) requires. Ultimately, in April 1996, the trial court granted 

Mr. Warren’s motion for a directed verdict upon the conclusion of the State’s evidence. 

According to your letter, the Atascosa County Appraisal District’s (“appraisal district”) 

Board of Directors voted on January 27, 1994, to pay Mr. Warren’s attorney fees contingent upon 

a determination that payment would be legal. The district attorney informed a board member that 

the payment might be illegal. Based upon that opinion, the board has not in fact paid any of 

Mr. Warren’s attorney fees. 

‘See Tax Code $j 23.55(e) (stating that chief appraiser is to make determination that change in use of land has 

occurred). 
The Honorable Judith Zaffuini - Page 2 (~~-488) 

You also describe a twist in the facts that you believe may affect our conclusion. 

Mr. Warren’s contract ofemployment with the appraisal district expired on December 3 1,1995, and 

was not renewed. Thus, you point out, some of Mr. Warren’s attorney fees were incurred a&r he 

left his post as Chief Appraiser of Atascosa County. 

Preliminarily, we suggest that the district attorney’s advice to the board in January 1994, that 

payment of Mr. Warren’s attorney fees as they accrued probably was illegal, may have been 

incorrect. A political subdivision of the state, such as an appraisal district, may provide legal 

representation for an officer or employee or pay the officer’s or employee’s attorney fees as they 

accrue if the political subdivision is authorized to do so either by statute or under the common law.* 

Numerous opinions of this office recognize a political subdivision’s common-law authority to 

provide legal representation to an officer or employee.’ 

In response to your first question, we conclude that the appraisal district board may now vote 

to reimburse all of Mr. Warren’s legal fees, incurred in the official misconduct prosecution, that it 

considers reasonable if the board is authorized, either by statute or under the common law, to do so. 

While we find no statute authorizing the appraisal district to pay the chief appraiser’s legal fees in 

this instance,4 neither do we find any statute preempting or limiting in any way the common law. 

Accordingly, we will consider the appraisal district’s common-law authority to reimburse the chief 

appraiser’s legal expenses. 

In our opinion, the common law permits the appraisal district to reimburse the chief 

appraiser’s legal expenses ifthe board makes two fact findings. First, the boardmust determine that 

the suit involved a public interest requiring a vigorous defense, or, conversely, that paying 

Mr. Warren’s legal fees serves a public, not merely Mr. Warren’s private, interest. This 

determination theoretically ensures that the board complies with article III, sections 50, 51, and 52 

of the Texas Constitution,5 which forbid the use of public funds for purely private purposes.6 

‘See Letter Opinion No. 97-049 (1997) at 1. 

‘See, e.g., Attorney General Opinions Jh4-824 (1987) at 2-3; JM-755 (1987) at 1-2; Letter OpinionNo. 97-065 

(1997) at 2. 

‘While Tax Code section 42.01( l)(A) authorizes a taxpayer to appeal an order of the appraisal review board 

determining the taxpayer’s protest that the chief appraiser failed properly to notify the taxpayer to the district court, see 

Tax Code $5 41.41 l(a), 42.21(a), we find no provision for payment of the chief appraiser’s legal fees should the 

taxpayer sue the chief appraiser for failure to notify. 

5See Attorney General Opinion DM-107 (1992) at 3 (and opinions cited therein). 

‘See id.; Attorney General Opinion m-824 (1987) at 2. You suggest that paying the attorney fees of an 

appraisal district’s employee who is the subject of what you call “nuisance litigation” may serve a public interest. You 

suggest that the threat of nuisance litigation, e.g., “‘liens’ and ‘court documents’ filed or issued by the ‘Republic of 

Texas’ people,” is “of palticular concern to persons employed by taxing authorities, who, because of the process itself, 

frequently find themselves in disputes arising from the performance of their official duties. These situations can 

occasionally lead to personal and political animosity or ‘spite’ litigation without any fault whatsoever of the public 

(continued...) 

p. 2767 
The Honorable Judith Zaftirini - Page 3 (DM-488) 

Second, the board must determine that Mr. Warren committed the alleged action or omission that 

was the basis of the lawsuit while acting in good faith and within the scope of offkial duties.’ The 

board need not determine, however, that the chiefappraiser’s course ofaction was correct.* Because 

these two determinations require the resolution of fact questions, they are beyond the scope ofthe 

opinion process. Resolution is more appropriately the board’s province. 

By concluding that a political subdivision may reimburse an officer’s or employee’s legal 

expenses in certain circumstances, we are overruling, to the extent they are inconsistent with this 

opinion, previous opinions of this office, including Attorney General Opinion DM-107 and Letter 

Opinion Nos. 97-065,97-049, and 90-93,” that conclude a governmental body may not reimburse 

“(...continued) 

employee or official.” This oftice previously has acknowledged that a governmental body’s interest in protecting 

employees from vexatious lawsuits may be sufficiently public to warrant paying employees’ attorney fees: 

We suppose that it is not unknown for. suits, on some occasions, merely to be vexatious, 

and perhaps even wholly mischievious [sic]. The suits are initiated by persons whose 

judgment and motive are sometimes unfathomable. The purely private decision to sue a 

public servant is not subject to the checks-and-balances so much a part of the nature and 

functioning of a political entity in its day-to-day operations. Public sewants subject to suits 

by private parties for official acts are apt to be distracted from their duties by the litigation, 

and concommitani [sic] worries about meeting the costs of a legal defense. Fear of 

boundless litigation, especially if it proves to be frivolous after a lengthy and expensive 

process, may make public servants timid in the discharge of their duties. 

Attorney General Opinion JM-755 (1987) at 5. 

‘See Attorney General Opinions DM-107 (1992) at 3; JM-824 (1987) at 3. 

?See Attorney General Opinions DM-107 (1992) at 3; JM-824 (1987) at 3. 

%ee Attorney General Opinion DM-107 (1992) at 4; Letter Opinion Nos. 97-065 (1997) at 3; 97-049 (1997) 

at 2; 90-93 (1990) at 2-3. 

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The Honorable Judith Zaffirini - Page 4 (DM-488) 

an officer or employee for legal expenses in any case. ‘O On the other hand, our conclusion today 

affirms two prior opinions of this office: Attorney General Opinions MW-252 and M-736.” 

Our statement in Letter Opinion No. 90-93 implying that the common law does not authorize 

a political subdivision to “reimburse a public official or employee” after that person has incurred 

legal expenses is, in truth, contrary to the common law. I2 The common law actually permits a 

political subdivision to reimburse an employee for legal bills. I3 Thus , unless expressly forbidden 

by charter, statute, or constitutional provision, a political subdivision has the implied power, 

exercisable upon discretion, to provide suitable means of protecting employees against litigation 

arising from job-related acts. I4 “Protecting” an employee may include hiring and paying an attorney 

to defend the employee if the political subdivision reasonably believes that providing a defense is 

in the public interest and the employee was acting within the scope of authority in the performance 

“Of course, there are policy arguments supporting the conclusion that reimbursement is not appropriate. First, 

a political subdivision should exercise some control over who the attorney is and what fees are charged. Then, too, the 

Texas Legislature has addressedreimbursementin at least three stahltes, eachrequiring apolitical subdivision’s pre-trial 

approvalofcounsel. Section 157.901(b) oftbe LocalGovemment Codestatesthat, under& appropriatecircumstances, 

“the official or employee is entitled to have the commissioners court of the county employ and pay private counsel.” 

(Emphasis added.) Moreover, other provisions permitting OT requiring reimbursement contemplate a political 

subdivision’s authorization of counsel prior to litigation. It is clear from these provisions the legislature is aware that 

public employees run the risk of being sued as a result of performing their public duties, and it has provided a remedy. 

But we are not persuaded by these policy arguments First, the authority of a poli&l subdivision to ratify and 

reimburse attorney fees is discretionary: a political subdivision is under no obligation to hire and pay an attorney OI to 

reimburse an employee for legal bills; it has discretion to do either or neither. If apolitical subdivision’s governing body 

disapproves the choice of attorney OT finds his fees unreasonable, it has discretion to do nothing. Additionally, the 

indemnification statutes have a single feature in common: each goes beyond the common law and requires, rather than 

permits, a political subdivision to provide legal counsel for an employee under the circumstances given. Nothing in the 

statutes repeals OI supplants common-law protections. To the contrary, this office has concludedthat Local Government 

Code section 157.90 1 “strengthens the rule by requiring a county to defend a public servant in a certain class of cases.” 

Attorney General Opinion JM-755 (1987) at 3. 

“See Attorney General Opinions MW-252 (1980) at 2; M-726 (1970) at 6 

‘“See Letter Opinion No. 90-93 (1990) at 2-3 

“See Attorney General Opinions MW-252 (1980) at l-2; M-726 (1970) at 6-9. 

“City of Corsicona v. Babb, 290 S.W. 736, 737 (Tex. Comm’n App. 1927, holding approved); Attorney 

General Opinion M-726 (1970) at 6; see Rodgers v. Counry ofTaylor, 368 S.W.2d 794,796 (Tex. Civ. App.--Eastland 

1963, writ ref d n.r.e.); Cbrestman v. Tompkins, 5 S.W.2d 257, 260 (Tex. Civ. App.--Dallas 1928, writ ref d). 

p. 2769 
The Honorable Judith Zaftirini - Page 5 (DM-488) 

of public duty. I5 A political subdivision authorized to contract for an attorney’s services prior to 

litigation subsequently may ratify such an agreement after litigation concludes.‘6 

While we find no Texas case involving reimbursement of a public employee’s legal bills, we 

believe it likely that the Texas Supreme Court would be persuaded by case law of jurisdictions 

applying the common-law rule to permit a political subdivision to ratify and reimburse an 

employee’s legal bills if he or she were sued for acts done in the discharge of official duties.” 

Whereas other jurisdictions have faced the issue of reimbursing a public employee for legal 

expenses, Texas courts have been required only to find a city’s authority to “employ an attorney [on 

behalf of a public employee], or to indemnify the [employee] for the payment of [attorney] fees.“ls 

Reimbursement has not been an issue in Texas indemnification cases, so there has been no reason 

for the courts to address it. However, in City of Corsicana v. Bnbb the Texas Commission of 

Appeals cites as authority cases from other jurisdictions and treatises that explicitly permit 

ratification and reimbursement as a form of indemnification.” 

We further believe that reimbursing an officer’s or employee’s legal expenses, incurred to 

defend against an action premised upon an on-the-job act or omission, does not as a matter of law 

contravene Texas Constitution article III, sections 44 and 53.*” Both sections 44 and 53 prohibit the 

state or a political subdivision from retrospectively granting an officer or employee additional 

compensation, fees, or allowances for services already rendered.*’ Thus, for example, this office 

previously has concluded that a prosecutor’s plan to use drug-seizure funds to award merit bonuses 

to his or her employees was unconstitutional because the bonuses had not been approved prior to the 

“Babb, 290 S.W. at 737; City Nat’1 Bank v. Presidio County, 26 S.W. 775,777 (Tex. Civ. App. 1894, no wit); 

Attorney General Opinions m-1276 (1990) at 11; MW-252 (1980) at 2, H-887 (1976) at 2-3; H-70 (1973) at 5; see 

Rodgers, 368 S.W.Zd at 796-97. 

16Attomey General Opinion M-726 (1970) at 6; see Rodgers, 368 S.W.2d at 797; Attorney General Opinion 

H-544 (1975) at 8. 

“See Machado Y Bal, 31 Haw. 559 (Haw. 1930); Mess?~ore Y Kracht, 137 N.W. 549 (Mich. 1912); Ciq of 

Moorhead v. Murphy, 102 N.W. 219 (Minn. 1905); Stare ex rel. Crow v. Cify ofSt. Louis, 73 S.W. 623 (MO. 1903); 

Barneff v. Mayor of Paterson, 6 A. 15 (NJ. 1886). Indeed, the Michigan Supreme Court has articulated the breadth of 

the common law: “[A] municipality [or other political subdivision] has the right to employ counsel to defend [an 

employee], or to appropriate funds for the necessary expenses incurred by him in such defense, or pay a judgment 

rendered against him.” Meumorc, 137 N.W. at 550 (quoting Sherman Y. Cm-r, 8 R.I. 431 (RI. 1867)); accord 

Machado, 31 Haw. at 562; Murphy, 102 N.W. at 219; State e.x WI. Crow, 73 S.W. at 625; Babb, 290 S.W. at 737. 

“Bobb, 290 S.W. at 737; see Chrestman, 5 S.W.Zd at 261; City Nat’1 Bank, 26 SW. at 777. 

‘9See Babb, 290 S.W. at 737.38 (and citations therein). 

20Reimbursing an officer’s or employee’s legal fees also raises concerns under article III, sections 50,5 1, and 

52 of the Texas Constitution. But see supra notes 6 and 7 and accompanying text. 

2’Like article III, section 52 of the Texas Constitution, and other sections, article III, section 53 was “intended 

to prevent the gratuitous grant of public funds to or for private persons or purposes.” Devon Y. City ofSan Antonio, 443 

S.W.2d 598, 600 (Tex. Civ. App.--Waco 1969, writ refd). 

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The Honorable Judith Zaffirini - Page 6 (DM-488) 

time the services, on which the determination of merit was to be based, were rendered.” We think 

Attorney General Opinion H-402 is particularly instructive with respect to your question. This offtce 

there considered whether a commissioners court may approve back pay for an employee who was 

suspended because he had been indicted, but who was then exonerated and reinstated to his county 

employment. ” After the employee was reinstated, the commissioners court adopted a policy 

permitting the county to reinstate with back pay an employee who had been suspended because of 

an indictment and then exonerated.24 But because the county had no such policy at the time this 

particular employee was suspended and reinstated, this office concluded that the county could not 

now “back pay” the employee the wages he would have earned while he was suspended:25 “To 

award back pay to a reinstated employee in the situation you describe when he is not entitled to it 

under the terms ofhis employment” (emphasis added) contravenes article III, section 53, the opinion 

concludes.26 In our opinion among the terms of a public officer’s or employee’s office or 

employment is the common-law possibility of receiving, in certain circumstances, reimbursement 

horn the employing governmental body for legal fees.” (We assume the employing governmental 

body had not adopted a policy forbidding it to reimburse an officer’s or employee’s legal fees.) 

We think it is appropriate here to answer your eighth question: whether our conclusion 

depends upon the fact that the chief appraiser indicted ultimately was acquitted. As we suggested 

above, that fact does not affect our conclusion. Rather, the relevant determinations under the 

common law are whether paying for the legal representation serves a public, not purely private, 

interest and whether the conduct that was the basis of the legal action was taken in good faith and 

was within the scope of an official duty. 

Your second question asks whether, if we conclude that the appraisal district’s board may 

not vote to reimburse Mr. Warren’s attorney fees, the appraisal district or any other governing body 

may adopt a policy that the governing body will “assume liability for, and pay attorney fees 

incurred in defending” an officer or employee ofthe appraisal district, including the appraisal review 

2*See Attorney General Opinion SM.1253 (1990) at 2-3. Cf Doutbit v. Ector Cou&, 740 S.W.Zd 16,18 (Tex. 

App..-El Paso 1987, writ denied) (finding certain compensation or benefits constitutional under article III, section 53); 

CiiyofOrange v. Chance, 325 S.W.2d 838,840 (Tex. Civ. App..-Beaumont 1959, no writ) (same); City of WichitaFalh 

v. Car, 300 S.W.2d 317, 321 (Tex. Civ. App.--Fort Worth 1957, writ refd n.r.e.) (same); Attorney General Opinion 

DM-129 (1992) at 2-3 (same); Attorney General Opinion H-51 (1973) at 3 (same). 

“See Attorney General Opinion H-402 (1974) at 1 

“See id. at 2 

“‘See id. 

“See Id. at 4 

2’As we have discovered, the common law authorizes a governmental body to reimburse an officer’s or 

employee’s legal expenses in certain circumstances. Attorney General Opinion H-402, by contrast, discusses awarding 

back pay to an employee for the period during which the employee was suspended. We know ofno common-law right 

to back pay in the situation described in that opinion. Consequently, a county policy was necessary before the county 

could award back pay. 

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The Honorable Judith Zaffirini - Page 7 (DM-488) 

board, against civil or criminal claims. We have concluded that the board may reimburse 

Mr. Warren’s attorney fees, so long as the board makes the determinations we have listed. 

Accordingly, we will not address the particular policy you set out. 

You ask third whether a policy standardizing the payment of attorney fees is a necessary 

prerequisite to the payment of attorney fees or whether the district board may make a determination 

to pay attorney fees in each particular case. As we have stated, the policy is unnecessary. Moreover, 

as we have suggested, the board, if it is to pay attorney fees at all, must make a case-by-case 

determination, considering the issues we have listed above. Nothing, of course, requires an appraisal 

district to pay an officer’s or employee’s attorney fees in any case?8 

Fourth, you ask whether an agreement to pay attorney fees in a civil case may be 

distinguished from an agreement to pay fees in a criminal action. Generally, the common law 

distinguishes less between civil and criminal actions than between actions premised upon an officer’s 

conduct within the scope of official duties and actions premised upon conduct beyond the bounds 

of official duties.2” Nevertheless, an agreement to pay attorney fees in a civil action that comes 

within Civil Practice & Remedies Code chapters 101 or 102 is, we believe, governed by those 

chapters. Here, for instance, Civil Practice&Remedies Code sections 102.002(c)(l) and 102.004(a) 

would preclude the appraisal district from providing an attorney for Mr. Vernon if the landowners 

sued him for damages caused by the alleged official misconduct. Because the action was a criminal 

prosecution, however, Civil Practice and Remedies Code chapter 102 is inapplicable, and the 

common-law rule applies. 

Fifth, you ask whether the appraisal district may pay attorney fees that accrue before the 

board adopts a policy. Again, we have concluded that a policy is unnecessary. Accordingly, we 

need not address this question further. 

You ask sixth whether the appraisal district board may reimburse an officer or employee who 

incurred and paid attorney fees purportedly covered by the policy. Because we have concluded that 

a policy is unnecessary, we need not address this question further. 

Finally, we understand you to ask whether the board may pay Mr. Warren’s attorney fees 

although he is no longer employed by the board. We do not think the fact that Mr. Warren is no 

longer a district employee makes any difference. Rather, in our opinion, the important fact is that 

the conduct for which Mr. Warren was brought to court occurred while he was the appraisal district’s 

chief appraiser. 

‘*See Attorney General Opinion JM-1276 (1990) at 11 

Tt is more common in the criminal context, however, for a governmental body to fmd that an officer’s 01 

employee’s conduct is beyond the scope of official duties. 

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The Honorable Judith Zaffirini - Page 8 (DM-488) 

SUMMARY 

The board of directors of an appraisal district may reimburse its chief 

appraiser’s attorney fees if it is authorized to do so by statute or under the 

common law. An appraisal district is not statutorily authorized to reimburse 

its chief appraiser’s legal fees if the chief appraiser is indicted for official 

misconduct for an alleged failure to properly notify taxpayers of a change in 

use in their land. On the other hand, no statute forbids an appraisal district 

to reimburse the chief appraiser’s legal fees. 

The common law permits an appraisal district to reimburse an officer’s 

or employee’s legal fees (1) if the board determines that paying for the legal 

representation serves a public interest, not just the officer’s or employee’s 

private interest; and (2) if the board determines that the officer or employee 

committed the alleged act or omission that was the basis of the suit in good 

faith and within the scope of his or her official duties. Whether the chief 

appraiser ultimately prevailed in the action is irrelevant to the board’s 

decision to pay attorney fees. To the extent they are inconsistent with this 

conclusion, Attorney General Opinion DM-107 (1992) and Letter Opinion 

Nos. 97.065 (1997), 97-049 (1997) and 90-93 (1990) are overruled. 

An appraisal district board of directors need not adopt a policy regarding 

the payment of officers’ and employees’ legal expenses before it may agree 

to pay the expenses as they accrue. 

An appraisal district’s common-law authority to pay an officer’s or 

employee’s attorney fees may be limited by statute. For instance, Civil 

Practice and Remedies Code chapters 101 or 102 may regulate the appraisal 

district’s payment of attorney fees in certain civil actions. 

The fact that an officer or employee who is being sued or the subject of 

a criminal action for conduct that allegedly occurred during the course of the 

p. 2773 
The Honorable Judith Zaftirini - Page 9 (~~-488) 

officer’s or employee’s work for the appraisal district is no longer an officer 

or employee of the district is irrelevant to the board’s consideration of 

whether it will pay attorney fees. 

DAN MORALES 

Attorney General of Texas 

JORGE VEGA 

First Assistant Attorney General 

SARAH J. SHIRLEY 

Chair, Opinion Committee 

Prepared by Kymberly K. Oltrogge 

Assistant Attorney General 

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