                       The Attorney                General of Texas
                                           April    3,   1980
MARK WHITE
Attorney General


                   Honorable Billy Red Lacy                     Opinion No. MW-157
                   Potter County Auditor
                   Potter County Courthouse                     Re: Article 332c, V.T.C.S., and
                   Amarillo, Texas 79101                        the expenditure of county funds as
                                                                reimbursement   for attorneys’ fees
                                                                incurred in defending     an ouster
                                                                suit.

                   Dear Mr. Lacy:

                          You have requested our opinion regarding the authority        of Potter
                   County under article 332c, V.T.C.S., to reimburse the Sheriff and County
                   Attorney for the attorneys’ fees these two officers incurred while defending
                   an ouster suit brought against them by the District Attorney.      The District
                   Attorney brought the action for removal under the terms of article 5970,
                   V.T.C.S., and your question is whether the costs of defending this suit can be
                   borne by the county in accordance        with the provisions of article 332c,
                   V.T.C.S. It is our opinion that the employment of private counsel that is
                   provided for in section 3 of the latter article was not intended to include the
                   hiring of such counsel when the action involved is an ouster suit seeking the
                   removal of county officials.

                          Article 5970, V.T.C.S., and article     V, section 24 of the Texas
                   Constitution have been held to require a suit for removal to be brought in
                   the name of the state.       As the Texas Supreme Court noted in Garcia v.
                   Laughlint 295 S.W.2d 191, 194 (Tex. 19551, “lilndividuel citizens have no
                   private interest distinguishable from the public as a whole and have no right
                   to maintain an ouster suit without being joined by a proper state official”

                         These suits must follow the procedures         set out by the Texas
                   Legislature in articles 5970-5997, V.T.C.S., and must be sworn to and
                   conducted in the name of the State of Texas. Childress County v. Sachse,
                   310 S.W.Sd 414, 419 (Tex. Civ. App. - Amarillo), writ ref’d nr.e. by per
                   curiam, 312 S. W.d 380 fl959). -See V.T.C.S. art. 5977 (proceedings conducted
                   in name of state).

                         Article 332c, V.T.C.S., was enacted to provide legal representation to
                   county officials and employees who are sued while in the performance      of
                   public duties and are the subject of an action brought by a “nonpolitical
Honorable Billy Fred Lacy      -     Page Two      @IN-157 )



entity.”   Section 1 of this act states that a “nonpolitical entity” does not include “the
state, a political subdivision of the state, a city, a special district, or other public entity.”
It is clear that the State of Texas is a political entity, and therefore article 332~ &es not
authorize the payment of attorneys’ fees. -See Letter Advisory No. 24 (1973).

       For an analysis of those instances in which the case law permits a city or county to
pay the legal fees of officials who have acted within the scope of their official duties see
Attorney    General Opinions H- 997 (1976) and WW-1464 (1962). See-gene               Letter
Advisory No. 24 (l973).

                                             SUMMARY

            A county cannot rely on the provisions of article 332c, V.T.C.S., as
            authority to pay the attorneys’ fees of officials who are subjected
            to an ouster suit brought under the provisions of article 5970,
            V.T.C.S.

                                               w!m



                                                   MARK       WHITE
                                                   Attorney   General of Texas

JOHN W. FAINTER, JR.
First Assistant Attorney General

TED L. HARTLEY
Executive Assistant Attorney       General

Prepared by Walter Davis
Assistant Attorney General

APPROVED:
OPINION COMMITTEE

C. Robert Heath, Chairman
David B. Brooks
Walter Davis
Bob Gam mage
Susan Garrison
Rick Gilpin
William G Reid
Bruce Youngblood




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