                                 ATTORNEY GENERAL OF TEXAS
                                              GREG         ABBOTT




                                                September 23,2003



Mr. Robert Scott                                            Opinion No. GA-01 04
Chief Deputy Commissioner
Texas Education Agency                                      Re: Whether a school district board of trustees
1701 North Congress Avenue                                  may reimburse a member for expenses incurred in
Austin, Texas 78701-1494                                    an election contest that involved certain voting
                                                            rights claims (RQ-0041 -GA)


Dear Mr. Scott:

         On behalf of the D’Hanis Independent School District (the “District”) your predecessor asked
whether an independent school district may reimburse a school board trustee for personal legal
expenses incurred in defending against voting rights claims that arose in the context of an election
contest.’ The facts and legal issues are presented in a brief from the District that accompanies the
request.* A brief submitted by the trustee’s attorney also presents facts and arguments.3




        The District held an election on May 4,2002 for District 2 Trustee, with Ronald Koch and
Rick Rothe as the only candidates. See Chunn Brief, supru note 3, at 1.4 Rothe won the election,
and “[plursuant to the Texas Election Code, Rick Rothe assumed the elected post of trustee upon the
canvass of the election, notwithstanding the pending Election Contest and has been serving in the
capacity of Trustee ever since.” Mendez Brief, supra note 2, at 1, n. 1; see also TEX. ELEC. CODE
ANN. 84 67.004’ (Vernon 2003) (procedure for local canvass), 67.016 (certificate of election),
232.009 (notice of election contest to canvassing authority).


           ‘See Letter from Commissioner Felipe T. Alanis, Texas Education Agency, to Honorable Greg Abbott, Texas
Attorney   General (Apr. 14,2003) (on file with Opinion Committee) [hereinafter Request Letter].

           2See Brief from David Mendez, Bickerstaff, Heath, Smiley, Pollan, Kever & McDaniel, L.L.P., to Honorable
Greg Abbott, Texas Attorney General (Mar. 26,2003) (attachment to Request Letter) (on file with Opinion Committee)
[hereinafter Mendez Briefj.

         3See Brief from John C. Chunn, Attorney at Law, to Honorable   Greg Abbott, Texas Attorney General (May 23,
2003) (on tile with Opinion Committee) [hereinafter Churn-r Brief].

          4See also Contestant’s First Supplemental Petition, Koch and Ortiz v. Rothe and D ‘Hanis Indep. Sch. Dist.,
Cause No. 02-05-l 6001 -CV, 38th Dist. Ct. of Medina County at 2-3 (July 17,2002) (attachment to Chunn Brief) (stating
that the election for the D’Hanis District Board of Trustees, Districts 1,2, and 5 was held on May 4,2002) [hereinafter
Contestant’s First Supplemental Petition].
Mr. Robert Scott - Page 2                                 (GA-0104)




         Koch, identifying himself as “contestant,” brought an election contest suit against Rothe,
identifying him as “contestee.‘y5 Koch sought to invalidate the election for material errors in the
ballot, which he alleged violated Election Code section 52.005! See generaZZy TEX. ELEC. CODE
ANN. 5 52.005 (Vernon 2003) (ballot may contain only offices on which qualified voters of the
precinct are entitled to vote). Trustees of the D’Hanis district are elected from single member
districts pursuant to Education Code section 11.052, which provides for dividing a school district
into trustee districts and entitles the residents of each trustee district to elect one trustee. See TEX.
EDUC.CODEANN. 5 11.052 (Vernon Supp. 2003). The ballot, however, listed candidates for three
single member districts and variously instructed the voters to vote for (1) one candidate and (2) one
for each position.7 See Chunn Brief, supra note 3, at 1. Rick Rothe retained counsel to represent
him in the election contest.*

         Contestant Koch, joined by a minority voter, subsequently filed a first supplemental petition
against (1) Rick Rothe and (2) the District and six named trustees, not including Rick Rothe, in their
official capacity as members of the board.g The supplemental petition, which identifies Rick Rothe
as “contestee” and the District and the six named trustees as “defendants,” sought a declaration that
the District’s actions in conducting the election without having the ballot precleared violated the
Federal Voting Rights Act, 42 U.S.C. 9 1973 (2002)” It also sought a declaration that the election
was void because it was conducted without “preclearance of significant changes in the electoral
process.“” The pleading thus appears to base an election contest against Rothe and a Voting Rights
Act suit against the District and six named trustees on the same alleged ballot irregularities.

         The District retained counsel to represent the trustees other than Rick Rothe, and Rothe’s
legal counsel represented him in both the state law and the Voting Rights Act claims. See Mendez
Brief, supra note 2, at l-2. According to Rothe’s attorney, once the supplemental petition was filed,
“Rothe was required to defend the District’s use of the ballot and the voting public’s rights sternming
from the election.” Chunn Brief, supra note 3, at 2. After the District voluntarily changed the ballot
and precleared the new procedures, plaintiffs dismissed their Voting Rights Act claims against the
district and the trustees shortly before the trial began. See Mendez Brief, supra note 2, at 2. It is
unclear whether the Voting Rights Act claim was dismissed as to Rick Rothe. Compare id. (voting
rights claims dismissed as against trustees, including Rothe) with Chunn Brief, supra note 3, at 2
(Rothe was not a party to non-suit and voting rights case remained viable against him and required



          ‘See Contestant’s Original Petition for Election Contest, Exhibit A, Koch v. Rothe, Cause No. 02-05-l 6001 -CV,
38th Dist. Ct. of Medina County at 3 (May 22,2002) (attachment to Chunn Brief).

         6See id.

         7See id. (Exhibit A).

         8Mendez Brief, supra note 2, at 1.

         ‘See Contestant’s   First Supplemental   Petition, supra note 4, at l-2.

         “See id. at 5.

         “Id.
Mr. Robert Scott - Page 3                        (GA-0104)




a vigorous defense through trial). Rothe asserts “that the situation forced him to make       preparations
for trial on the potential voting rights issues, as they may have affected him as trustee,   as well as for
the election contest.” Mendez Brief, supra note 2, at 2. He has requested the District       to reimburse
him for the part of his legal expenses related to advice and representation on the voting    rights issues.
See id.

II.     Applicable   Law

         A school district board of trustees has authority to employ an attorney to represent the district
 and the trustees in legal proceedings involving school affairs as a necessary incident of the power
to manage and control the district. See Dallas Indep. Sch. Dist. v. Finlan, 27 S.W.3d 220,242 (Tex.
App.-Dallas 2000, pet. denied), cert. denied, 534 U.S. 949 (2001) (trustees sought declaratory
judgment that backup election records were not available to public), Stewart v. Newton Indep. Sch.
Dist., 134 S.W.2d 429,430 (Tex. Civ. App.-Beaumont           1939, no writ) (lawsuit seeking to abrogate
contract with superintendent), Harding v. Raymondville Indep. Sch. Dist., 5 1 S.W.2d 826,827 (Tex.
 Civ. App.-San Antonio 1932, writ dism’d w.o.j.) (tax collection), Arrington v. Jones, 191 S.W. 361
 (Tex. Civ. App.-Texarkana     1917, no writ) (employment of attorney to cancel a teacher’s contract).

         In certain circumstances, a school district or other political subdivision may pay the costs of
defending an officer or employee in a suit brought against the person in an individual capacity for
actions taken within the scope of his or her official duties. See City of Corsicana v. Babb, 290 S.W.
736 (Tex. Comm’n App. 1927, judgm’t adopted) (home-rule city), White v. Eastland County, 12
S.W.3d 97, 103 (Tex. App.-Eastland        1999, no pet.) (county); Tex. Att’y Gen. Op. Nos. GA-0062
(2003) at 1 (school district), H-887 (1976) at 4 (general-law city); see also TEX. LOC. GOV’T CODE
ANN. $ 157.901 (Vernon 1999) (county official or employee sued for action arising from the
performance of public duty is entitled to representation by district or county attorney). City of
Corsicana v. Babb addressed such circumstances and held that a city, even though it was not a party
to the suit, could pay for an attorney to represent police officers indicted for killing a man while
attempting to arrest him. See Cz@ of Corsicana, 290 S.W. at 736. It is a municipal function to
indemnify a city officer against liability incurred by reason of actions taken in performing his official
duties, and expenditures for that purpose are not a gratuity, but a public expense of the city for which
public funds may be used. See id. at 737. Thus, such expenditure does not violate article III, section
52(a) of the Texas Constitution, which provides in part: “Except as otherwise provided by this
section, the Legislature shall have no power to authorize any county, city, town, or other political
corporation or subdivision of the state . . . to grant public money or thing of value in aid of, or to any
individual, association or corporation whatsoever.” TEX. CONST.art. III, 5 52(a). See WXite, 12
S.W.3d at 103 (county’s implied power to retain counsel for sheriff in criminal prosecution based
on its constitutional and statutory authority to provide law enforcement). “Public money cannot be
spent to defend private interests,” but “suits may be only nominally against individuals when they
are really designed to obstruct or control the legitimate performance of official duties.” Tex. Att’y
Gen. LA-24 (1973) at 3-4; see also State v. Averill, 110 S.W.2d 1173, 1174 (Tex. Civ. App.-San
Antonio 1937, writ refd), City of Del Rio v. Lowe, 111 S.W.2d 1208, 1218-1219 (Tex. Civ.
App.-San Antonio 1937)’ rev’d on other grounds, 122 S.W.2d 191 (Tex. 1938) (no public purpose
in city commission paying legal fees for city commissioners charged with crimes); Tex. Att’y Gen.
Op. No. JC-0294 (2000) at 5, 6 (questions whether courts would now follow Lowe’s strict
prohibition against using public funds to defend public officers in criminal prosecutions).
Mr. Robert Scott - Page 4                       (GA-0104)




         A city thus has discretionary power to spend its funds to defend a policemen against a charge
based upon an act within the scope of his official duties, although it is not required to do so. See City
of Corsicana, 290 S.W. at 737. This office has determined that school districts have authority, based
on their power to govern and oversee the management of the district, to employ an attorney to
represent an officer or employee when sued in an individual capacity for actions taken in the scope
of his or her employment. See Tex. Att’y Gen. Op. No. JM-968 (1988) at 2; see also TEX. EDUC.
CODEANN. 5 11.15 1(b) (Vernon 1996). The school boards authority to employ an attorney for a
trustee sued in an individual capacity is limited to situations where the district’s interests, and not
merely the trustee’s personal interests, require assertion or defense in court. See generaZZy State v.
Averill, 110 S.W.2d 1173, 1175 (Tex. Civ. App.-San Antonio 1937, writ ref d) (home-rule city),
Graves & Houtchens v. Diamond Hill Indep. Sch. Dist., 243 S.W. 638,639 (Tex. Civ. App.-Fort
Worth 1922, no writ); Tex. Att’y Gen. Op. No. JM-685 (1987) at 2. The school board must also
determine that the officer’s or employee’s actions forming the basis of the law suit were undertaken
in good faith within the scope of an official duty. See Tex. Att’y Gen. Op. No. JC-0294 (2000)
at 3.

III.    Question Presented

         Rick Rothe has requested the District to reimburse him for the part of his legal expenses
related to advice and representation on the voting rights issues. A school district has no legitimate
interest in spending public funds to pay a school board member’s legal expenses in an election
contest, because the lawsuit involves only the trustee’s personal interest in seeking office. See Tex.
Att’y Gen. Op. No. JM-685 (1987) at 5; see also id. DM-43 1 (1997) at 2-3 (county may not
reimburse sheriff for attorney fees incurred in defending election contest suit), Kimberly J. Winbush,
Annotation, Payment of Attorneys ’ Services in Defending Action Brought Against Officials
Individually as Within Power or Obligation of Public Body, 47 A.L.R. 5th 553 (1997).

         The school board must deal with the request for reimbursement according to the principles
set out above. The board may reimburse the legal expenses of a trustee sued in an individual
capacity if it makes a good faith determination that (1) the lawsuit arose out of actions by the trustee
that were undertaken within the scope of an official duty, and (2) the expenditure is for the district’s
interest, and not merely the trustee’s personal interests. These circumstances must exist, and the
mere fact that the school district may have benefitted from Rothe’s defense of the Voting Rights Act
claim does not justify reimbursement.

         The reimbursement decision requires the investigation and resolution of fact questions, which
cannot be done in an attorney general opinion. See Tex. Att’y Gen. Op. Nos. GA-0041 (2003) at 6,
JM-968 (1988) at 2. The district board of trustees must decide, for example, whether the Voting
Rights Act claim raised against Rothe related to actions he took in the scope of a trustee’s official
responsibility, or only to alleged ballot irregularities affecting his election as trustee. Finally, even
if a school district is authorized to reimburse an officer or employee for legal expenses, it has no duty
to do so. See generaZZy White, 12 S.W.3d at 103 (whether to provide counsel for county officer in
criminal case is discretionary with commissioners court).
Mr. Robert Scott - Page 5                      (GA-0104)




                                        SUMMARY

                       A school district may reimburse an officer or employee for the
               expense of defending a lawsuit only if it determines that (1) the
               expenditure was for the district’s interest and not merely the officer’s
               or employee’s personal interest, and (2) the lawsuit arose out of
               actions by the officer or employee that were undertaken in good faith
               within the scope of an official duty.

                                               Very truly yours,




                                               Attomweral          of Texas




BARRY R. MCBEE
First Assistant Attorney General

DON R. WILLETT
Deputy Attorney General for Legal Counsel

NANCY S. FULLER
Chair, Opinion Committee

Susan L. Garrison
Assistant Attorney General, Opinion Committee
