                          QBfficeof tfie 2lttornep Qhneral
                                     Bbtate of Qexae
DAN MORALES                             April20.1992
 ATTORNEY
       GENERAL


     Honorable Mike Driscoll                     Opinion No. DM-107
     Harris County Attorney
     1001 Preston, Suite 634                     Re: Whether        the    Harris   County.
     Houston, Texas 77002-1891                   Attorney is--authorized to represent a
                                                 ~Harris county Hospital District employee
                                                 accused of criminal acts committed within
                                                 the course of his duties, and whether the
                                                 hospital diitrict is authorized to hire an
                                                 attorney to represent such an employee
                                                 or to reimburse the employee’s legal
                                                 expenses following the conclusion of the
                                                 litigation (RQ-291)

     Dear Mr. Driscoll:

             You have asked whether the Harris County Attorney (the “county attorney”)
     is authorized to represent a Harris County Hospital District employee accused of
     criminal acts committed during the course of his duties. You also ask whether the
     Harris County Hospital District. (the .%ospitaLdistrict”.) isauthorized to hire an
     attorney to represent such an employee or to reimburse,.the -employee’s legal
     expenses following the conclusion of the litigation. By way of background, you
     explain that an employee of the hospital district was charged with a misdemeanor
     for the alleged sexual touching of a hospital district patient. The county attorney
     denied the employee’s request for representation. The employee hired his own
     attorney and was eventually acquitted of the charges. The employee is now
     requesting that the hospital district reimburse him for his legal expenses.

            You contend that the county attorney’s office is prohibited from representing
     a hospital district employee under these circumstances by article 2.08 of the Code of
     Criminal Procedure. We agree. Article 2.88 provides as follows:

                    District and county attorneys shall not be of counsel
               adversely to the State in any case, in any court, nor shall they,
               after they cease to be such officers, be of counsel adversely to


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Honorable Mike Driscoll - Page 2         (DM-107)




          the State in any case in which they have been of counse.1for the
          State.

This provision generally prohibits district and county attorneys from representing
defendants in &m.inaJ cases. See, eg., Attorney General Opinions V-247 (1947); O-
5735 (1944); see &o Ethics Opinion 419, 47 Tex. B.J. 1370 (1984); @ Ex pmte
Ramsqr, 642 S.W.2d 483 (Tex. Grim. App. 1982) (county attorney not disqualified
from representing petitioner in application for writ of habeas corpus because case’~
did not fall within general provisions of chapter 2, Code. of Crhnimd Procedure).
Clearly, article 2.08 would prohibit a county attorney from representing any person,
including a hospital district employee, in a misdemeanor case such as the one you
describe.

       You also ask whether the hospital district is authorized to hire an attorney to
represent an employee against misdemeanor charges which arise from conduct
allegedly committed by the employee during the course of his duties, or to
reimburse the employee’s legal expenses following the conclusion of litigation.
Generally, a special-purpose district, such as a hospital district, “may exercise only
such powers as have been expressly delegated to it by the Legislature, or which exist
by clear and unquestioned implication.” TnXiry Fresh Water Supply Dirt. No. 2 v.
Munn, 142 S.W.2d 945, 946 (Tex. 1940). Implied powers are those that are
“indispensable to.. . the accomplishment of the purposes of [the district’s] creation.”
Id at 947; see ah Attorney General Opinion JM-258 (1984).

      The Harris County Hospital District was created pursuant to chapter 281 of
the Health and Safety Code. Section 281.056 of that chapter provides:

              (a) The board may sue and be sued.

               (3) The county attorney, district attorney, or criminal
          district attorney, as appropriate, with the duty to represent the
          county in civil matters shall represent the district in all legal
          matters.

              (c) The board may employ additional legal counsel when
          the board determines that additional counsel is advisable.

              (d) The district shall contribute sufficient funds to the
          general fund of the county for the account of the budget of the
          county attorney, district attorney, or criminal district attorney, as

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Honorable Mike Driscoll - Page 3               (DM-107)




           appropriate, to pay all additional salaries and expenses incurred
           by that officer in performing the duties required by the district.

Subsection (c) of section 281.056 is broadly written. We believe that in limited
circumstances it authorizes the hospital district to employ legal counsel to represent
both the district and its officers or employees in civil and criminal matters.’ See
Attorney General Opinions JM-968 (1988); JM-824, JM-755, JM-685 (1987)
(recognizing that Texas governing bodies are generally authorized to employ
attorneys to defend their officers and employees in certain circumstances); see also
C& of Corskenrr v. Bubb, 290 S.W. 736 (Tex. Comm’n App. 1927, judgm’t adopted);
Attorney General opinion JM-968 at 3; Letter opinion No. 90-93 (1990)
(recognizing that Texas governing bodies’ authority to employ attorneys exists not
only when an officer is alleged to have committed an act of mere negligence, but
also when an officer or employee is alleged to have committed an intentional tort or
crimhal act).

        This office has repeatedly recognized that the statutory authority of Texas
governing bodies to employ counsel is limited by the Texas Constitution, article JJJ,
sections SO, 51, and 52. See, eg., Attorney General Opinions JM-824 at 4
(interpreting predecessor provision to Local Government Code section 157.901);
JM-755 at 3 (same); see u.ko Attorney General Opinion JM-685 at 2 (authority of
school district to employ counsel). Thus, the authority of a hospital district under
section 281.056(c) to employ attorneys to defend officers and employees is not
boundless. Specifically,. this ~-authority is. limited ,-to ~situations where legitimate
interests of the govermnental entity to employ counsel;-nofjiisf           thi5personal
interests of the officers or employees - require the assertion of a vigorous legal
defense on behalf of the public interest. Attorney General Opinion JM-824 at 2.
Public funds may not be used when the interest to be defended is a purely private
one. Id. The governing body need not conclude, however, that the officer or
employee must have been correct in his course of action; the governing body need
only determine that the officer or employee acted in good faith within the scope of
an official duty. Id. at 3.




        ‘Your brief suggests that because subsection (h) refers to ‘civil matte*. the scope of
subscclioa (c) is limited to ciGl matters. We disagrw. Subsection (b) merely identities the officials
whoarc rqked to representhospitaldistrku. It dots not preclude hospital districtsfrom obtaining
counsel in aimhal matters. As noted above, district aad county attorneys arc prohiicd from
reprc-seatiagclients ia Riminal matlcrs.


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Honorable Mike Driscoll - Page 4        (DM-107)




        Prior opinions of this office also establish that the question of the
constitutionality of expending public funds in the defense of an officer or employee
in a particular instance depends upon the nature of the interest at stake and,
therefore, involves questions of fact which cannot be resolved in the opinion
process. Id. at 2. Thus, it is for the board of the hospital district to determine
whether the matter at issue in a particular lawsuit concerns the interest of the
hospital district or whether the expenditure of public funds would only personahy
benefit the officer or employee. Id at 3.

         While we conclude that section 281.056(c) of the Health and Safety Code
authorizes the hospital district to hire attorneys to represent officers or employees
within the constitutional limitations described above, we conclude that the hospital
district is not authorized to reimburse an employee following the conclusion of the
litigation for legal expenses he incurred in defending himself. First, section
281.056(c) merely authorizes the hospital district to employ counsel; it does not
authorize the reimbursement of an employee’s legal expenses. Second, we are not
aware of any other authority for the proposition that a governmental entity may
reimburse a public official or employee a&r the person has incurred legal expenses.
See Letter opinion No. 90-93.

                                SUMMARY

             Article 2.08 of the Code of Criminal Procedure prohibits the
         Harris County Attorney from representing, a Harris ‘County
         Hospital District employee in a crimmal case.           Section
         281.056(c) of the Health and Safety Code authorizes the Harris
         County Hospital District to hire an attorney to represent an
         employee. Whether the Texas Constitution permits the Harris
         County Hospital District to do so in a particular case involves
         questions of fact and must be determined by its board. .The
         Harris County Hospital District is not authorized to reimburse
         an employee’s legal expenses following the conclusion of the
         litigZltiOIL




                                                   DAN      MORALES
                                                   Attorney General of Texas

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Honorable Mike Driscoll - Page 5     (DM-107)




WILL.PRYOR
First Assistant Attorney General

MARY KELLER
Deputy Assistant Attorney General

RmEAHIcKs
Special Assistant Attorney General

MADELEINE B. JOHNSON
Chair, Opinion Committee

Prepared by Mary R. Grouter
Assistant Attorney General




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