Honorable  Thomas B. Sehon               Opinion   No. m-824
Falls County District Attorney
Falls County Courthouse                  Re: Authority   of a county
Marlin, Texas    76661                   to provide legal    counsel
                                         for    a    sheriff      and
                                         district  attorney  sued in
                                         their official capacities
                                         (RQ-1024)

Honorable   Thomas   B. Sehon:

      YOU ask two questions        prompted by a federal        lawsuit
brought by    a member     of    the Falls    County    Commissioners
Court against you, both individually          and in your      capacity
as district   attorney.      The suit, which alleges        violations
of    federally     protected        civil     rights,        malicious
prosecution,     libel,      and   slander,      seeks   damages       of
$500,000.    The  suit  also   names   as a  defendant,    in  both    an
individual    and   official       capacity,     the   Falls      County
sheriff.    Your questions     are:

            (1) Under  the    provisions    of     section
        157.061   of  the    Local   Government      Code,
        formerly article    332c, V.T.C.S.,     is   Falls
        County required to provide legal counsel for
        the sheriff   and   the district    attorney     to
        defend them   against a    lawsuit filed     by    a
        member of the commissioner's     court?

             (2) By virtue    of section    81.002 ;ztiEpz
         Local   Government    Code,   formerly
         2340, V.T.C.S.,    is the county      COmmiSSiaIz-,
         who   brought   the   suit   disqualified
         (a) voting on the hiring      of an attorney         to
         defend    the  officials     he   has   sued        and
         (b) from participating     in meetings   about the
         lawsuit conducted    between the commissioner's
         court and the attorney      hired to defend         the
         county officials?




                              p. 3921
                                                                                1


Honorable   Thomas   B. Sehon   - Page   2   (m-824)


                                                                            7



Falls County is obligated     to provide legal counsel to         the
county attorney    and sheriff    if the    commissioners       court
decides that the suit involves the public interest.             Local
Gov't   Code  5157.061;    Attorney    General     Opinion    JM-755
(1987).   We have on several occasions      considered    whether    a
public body,    such   as a county,     may provide      for    legal
counsel to defend public officers and employees            subjected
to litigation   in   the course   of their     public duties.        A
general rule can be distilled     from our diverse opinions:

        Where a Texas     governing   body    believes     in
        good faith that     the public     interest   is   at
        stake,   even   though    an   officer    is     sued
        individually,   it is permissible      for the body
        to    employ    attorneys      to    defend       the
        action.   . . . The propriety      of such a     step
        is not made    dependent   upon    the outcome     of
        the litigation,    but upon    the bona fides      of
        the governing   body's motive.

Attorney   General    Opinions JW-755     (1987); MW-252      (1980);
H-70 (1973);     see   also Attorney    General    Opinions     H-887
(1976);    H-544    (1975);   M-726   (1970);    AttorirIy    General
Letter Advisory    No. 24 (1973).     See also Cltv        Corsicana
v   Babb, 290 S.W. 736, judgment adopted        (Tex. Comm'n      APP.
1927);   see    aenerau       Annot.,   Payment     of    Attorneys'
Services    in   Defending    Action   Brought    Against      Public
Officials,    130 A.L.R. 736 (1941).

      We emphasize     that the     authority     of the   county     to
employ attorneys     to defend     county officers and       employees
is limited to situations       where the legitimate      interests    of
the county -- and not       just the personal      interests   of    the
officers   or   employees    --    require    the   assertion     of   a
vigorous   legal defense on      behalf of the public        interest.
Attorney   General    Opinions     374-755 (1987);    H-887     (1976).
The county may     not use     public funds     when the     principal
interest to be defended      is a purely private one.         Attorney
General Opinion W-726 (1970); &            Citv of Del Rio v. LOWe,
111 S.W.Zd 1208, 1219 (Tex. Civ. App. - San Antonio              1937),
rev'd on other arounds,      122 S.W.2d 191 (Tex. 1938):          State
v. Averill     110 S.W.Zd 1173 (Tex. Civ. App. - San           Antonio
1937, writ'ref'd).

       Thus, the    question of      the lawfulness     of    expending     ?
public funds      to protect     the public    interest    in   a   suit
brought against a public official or employee will                always
be   a     question    of     fact.     The   question      that      the
commissioners     must    decide    is whether or      not    the   suit




                             p. 3922
Honorable    Thomas   B. Sehon   - Page   3   m-824)




really is one that concerns the interests          of the county or
whether the benefits provided by public funds accrue            only
to the personal benefit of the public official          or employee
represented    at    taxpayers'   expense.      We   do  not    make
determinations    of   fact   in the    process     of  issuing   an
opinion: that responsibility      in this kind of question must
rest with    the judgment     of the   county commissioners      who
must vote whether to expend       public funds in a particular
case.

       Such a decision       does not have      to conclude that       the
county officer      must have       been right,     or that    the    suit
ultimately     must    be    defeated,      The   county    need      only
determine    that the public servant          of the county acted       in
good faith within       the scope       of an   official duty
National    Bank of    Au&in     v   Presidio    County, 26 S:W. %
(Tex. Civ. App. 1894,              .
                              no writ):    Attorney   General     Opinion
M-726 (1970).      Bven if the suit contains allegations              that
a county     official     or   employee     has   acted    outside     his
authority,    the   expenditure       of public     funds   in    defense
would still be proper.         Such an issue can only be          decided
at the trial of the        case ; standing alone, the         allegation
itself cannot be the basis for a refusal to find that                  the
defense of the public officials            is outside of the       public
interest,    except in the most extreme of cases.             See. e.a
CitV Of Del Rio, sunra; see also Attorney             General Opinion$
JM-755     (1987);    H-887     (1980);    H-544    (1978);     Attorney
General Letter Advisory No. 24 (1973).

      You  suggest   that section   157.061 of   the                Local
Government  Code recuires the county to pay private               counsel
to defend yourself and the sheriff.

            LEGAL   DEFENSE    OF   EMPLOYEES.         (a).   A
        county    official    or   employee     sued    by
        nonpolitical    entity    for an    action    arisin:
        from   the   performance     of   public     duty   is
        entitled to be      represented   by the     district
        attorney of the district       in which the county
        is located, the county attorney,         or both.

            (b) If additional     counsel is necessary   or
        proper   in    the   case   of   an   official   or
        employee provided     legal    counsel under   Sub-
        section  (a) or if it reasonably       appears that
        the act complained     of may form the basis for
        the filing of a criminal charge against         the
        official    or   employee,      the   official
        employee     is    entitled       to    have    2:




                             p. 3923
Honorable   Thomas   B. Sehon   - Page    4    (m-824)




        commissioners court of the            county   employ   and
        pay private counsel.

            (c) A county official or employee             is   not
        required   to    accept  the  legal               counsel
        provided  in this section.

            (4 In     this   section,      'nonpolitical
        entity' means an individual,    firm,    corpora-
        tion, association,   or other private     entity.
        It does not include    the state, a political
        subdivision   of the state, a city, a special
        district,   or other public entity.

      This statute, adopted by the legislature             in 1973    and
placed in the      Local Government      Code    by a   nonsubstantive
revision   in 1987, is declaratory        of at least a part of the
common-law     rule   referred       to   above.1      See     aenerally
Attorney   General Letter Advisory No. 24 (1973).             We do not
understand     the   statute      to    repeal     or   supplant      the
common-law   rule.    At the least, the provisions           strengthen
the rule    by   entitling    a    public     servant to     a defense
provided by the county        in a certain       class of cases.       As
such, it can be construed         to harmonize     with the     existing
common-law   rule, Preels v. Walker, 26 S.W.2d 627,              opinion
adopted   (Tex. Comm'n App.       1930), even though the         statute
does not occupy the       whole of the       ground embraced by       the
common-law   rule.    The    statute does not        -- and cannot     --
repeal the implied condition          imposed by the       constitution
that a legitimate      interest of the county must be involved.
Attorney   General better Advisory No. 24 (1973).              But   when
the commissioners       make    a bona-fide       decision     that   the
public interest is involved,          then the public official         or
employee must be afforded         the legal assistance         specified
in section 157.061.

      As  an  express  condition   for   the application                of
section 157.061, the suit against the public servant                  must
be instituted  by a "non-political  entity," meaning



    1.  Subsection   (a) of      section   157.061    requires     the
county or district attorney,       or both, to defend the public
servant, except     in   certain    cases specified     in    section
three of the    statute.     Prior to    the adoption   of    section
157.061, county and district        attorneys   had no    such duty.
See Attorney   General Letter Advisory      No. 24 (1973).




                                p. 3924
      Honorable    Thomas   B. Sehon    - Page   5   (m-824)




                an     individual,      firm,     corporation,
                association,   or other   private entity.
                does not    include  the state,   a politic::
                subdivision   of the state, a city, a special
                district,   or other public entity.

      Local Gov*t Code 5157.061(d).   It  is apparent           to us  that
      the litigation  at hand has not been instituted           by a public
      entity.

              A single  county       commissioner  has   119 authority     to
      bring    suit in the name      of the county.    A county is

                manifestly   a unit, and is the agency of        the
                whole county.     The respective   members of the
                commissioners    court are therefore      primarily
                representatives     of the whole county, and not
                merely representatives       of their    respective
                precincts.    The    duty of   the   commissioners
                court is to     transact the business,      protect
                the interest,    and promote the welfare of the
                county as a whole.
I--
      StOVall  v. Shivers      103 S.W.2d     363, 366 (Tex. 1937);        see
      &j&j Tex.    Const. 'art.      V,   518;   Local   Government      Code
      081.001.    Only action taken by        the governing    body of     the
      county -- the commissioner's         court speaking      through     its
      minutes -- can bind       the county.      Stratton v.      Countv    of
      Liberty    582 .S.W.Zd 252 (Tex. Civ. App. - Beaumont,            1979,
      writ rek'd n.r.e.);       Hill F arm, I     .      111 c       V
      S.W.Zd 414. (Tex. Civ. App. - Wacony968y* , :ff'd ::?            ;.W"::
      230 (1968).      The    information     furnished    to   us   clearly
      demonstrates    that   the litigation      prompting    this   request
      was filed by a      %onpolitical     entity" -- a private        person
      who happens to be      a county official,       but who is     seeking
      redress for     alleged wrongs      merely personal      to him    even
      though they may      involve public      officials   acting    against
      him in their official capacities.

            We also note     that    subsection  (b) of'section      157.061
      may apply in this      case.    That provision  provides,     in part,
      that:

                   If additional    counsel    is Becessarv        or
               prooer   in the     case   of   an  official
               employee provided     legal   counsel   . . .      t::
               official or employee     is entitled to have       the
               commissioners   court of the county employ         and
-              pay private counsel.      (Emphasis added.)




                                          p. 3925
                                                                                I




Honorable   Thomas   B. Sehon   - Page   6 (JM-824)




Local Gov't Code,      5157.061(b).      In the    usual case     under
section 157.061, the defense of a public servant is to                be
undertaken   by the county attorney,       the district      attorney,
or both.    Obviously,    you, as the district      attorney,    cannot
be expected,     on   prudential     grounds,    or    otherwise,     to
defend yourself.      Nor may you, as a formal matter of legal
ethics, represent     your co-defendant,      something    that   would
otherwise   be your duty under section 157.061 of the             Local
Government   Code.    See. e.a.     Supreme Court of Texas, Rules
Governing   The State Bar      oftTexas,   art.    XII, 58 (Code      of
Professional   Responsibility),      Canon 5 (1971).       Thus,    this
seems to    be precisely      the class    of case     where    section
157.061 mandates     that the county hire and pay for           private
counsel for both yourself and the sheriff.             Of course, the
commissioners    must determine     formally that it is necessary
and proper for private counsel to be employed            and paid.

      You also ask whether the county commissioner            bringing
the suit    is   (a) disqualified     from   voting    on    questions
concerning   the   hiring and     payment by     the   commissioners
court of an attorney to defend the public officials              he has
sued and (b) disqualified        from participating      in meetings
about the    lawsuit which      might be    conducted    between    the     --_
commissioners    court   and    the private     attorney     hired   to
handle the suit.      You suggest     that section 81.002 of        the
Local Government      Code, formerly      article 2340,      V.T.C.S.,
provides   affirmative    answers to these questions.

      Section 81.002      requires,     in part,      that    a  county
commissioner    take an oath to abjure certain actions likely
to promote so-called      %onflicts     of interest."      The precise
purpose of the provision         is to eliminate     the   possibility
of any pecuniary     gain from the county by those who           manage
its affairs--in     the   case of %ontracts        with" or     wclaims
against"    the   county.      S ee   aenerally    Hexar    Countv      V
Wentworth,   378 S.W.2d     126 (Tex. Civ.       APP.  -  San   Antonio
1964, writ ref*d n.r.e.); Attorney          General Opinion      M-1140
(1972). A    commissioner    must     post a bond to       insure    the
faithful performance       of this,     and other,     duties.     Local
Government   Code, section 81.002.         The provision    does    not,
on its    face,   forbid    a commissioner       with    a prohibited
interest from voting.       But if such a vote is cast, and ,it
is a deciding       one, then     the   contract    is void.       Bexar
Countv v. Wentworth,     m.                                                 ?

      Members   of   the    commissioners   court  must           avoid
acquiring   or furthering   an   interest in any contract          with
the county.    Attorney   General Opinions H-624 (1975):          H-329
(1974) .                                                                    ?




                                  p. 3926
    Honorable   Thomas   B. Sehon    - Page     7 (J&82.!,)




          In the instant case, one member of the        commissioners
    court, acting solely     as a private    citizen,   is suing    the
    county attorney and the sheriff.       The commissioners      court
    must decide whether or not to enter into a contract with a
    private attorney to provide for       the legal defense of      the
    the two county officials.     Such a contract will not result
    in the possibility     of any  direct pecuniary      gain by    the
    commissioner  bringing    the suit,    because he    will not    be
    either a party or a beneficiary     of its execution.     Only the
    lawyer engaged pursuant to the contract will receive money
    from the county,    and only   the public     officials   he   will
    defend will be beneficiaries    of the contract.

          Nor,   logically,     can     the   contract     result    in   the
    possibility    of    an indirect        gain   by   the    commissioner
    bringing the suit., The only          purpose of     the contract      to
    engage    a   lawyer     is    to    defeat     the     commissioner's
    expectations     of   winning     a     lawsuit    and   receiving
    consequent   award of damages        from the public officials         ht
    is suing.    The commissioner       bringing    the suit has only        a
    non-pecuniary    interest     in the      contract:     he   hopes    the
    efforts of the      attorney hired pursuant         to the     agreement
P   will come to naught and that his cause will prevail.

          In fact, it is clear that Section 81.002 of the Local
    Government   Code is limited      in application    to those    cases
    where action by a county commissioner         will prompt the flow
    of pecuniary     benefits from     the   county to    him,    whether
    directly    or   indirectly.      In   other   words,   money     paid
    because of a contract entered into by the county must find
    its way to     the benefit of    the commissioner.     The    statute
    should not be read to cover those circumstances           where    the
    interest    of   the   commissioner     does   not   encompass     the
    possibility    of a gain from the       county, and,    ultimately,
    its taxpayers,    through the execution      of a contract.

          In no   previous case    has the     prohibition    against     a
    county commissioner    having an interest in a contract           been
    applied to a situation where funds expended by the             county
    pursuant  to the contract could       not ao to a     commissioner,
    either directly     or indirectly.     Thus, here,     while it     is
    correct to say that the county commissioner         bringing      suit
    is "interested*'    in  a contract between        the    county    and
-
    attorney engaged     to defend    the   public officials       he   is
    suing, his    interest   is not     specifically      of   the    kind
    brought within the     prohibitions    of   section 81.002.        The
    letting of the contract to      hire a lawyer cannot        possibly
    influence   the way the commissioner      deals with the official
    business  of the county, and will not later give rise to              a



                                      p. 3927
                                                                                ,

Honorable     Thomas   B. Sehon   - Page    8   (m-8243




possibility    that the commissioner      will be influenced     by    a
personal pecuniary      interest should      the contract   go   awry.
&g   &lk    v.   Roe-,        184   S.W.    513   (Tex.   Civ.   App.-
Seaumont   1916, no writ).'       To say otherwise    would    subject
county   commissioners       to    an   impossible    dilemma:      any
contract    which    might    redound    to   their   benefit    in    a
non-monetarv    sense would be      subject to the strictures        of
section 81.002.2

      Nevertheless,     public policy in Te;tseforbids            a public
official    from     casting     a decldznq                          matter
concerning    an   issue in which he          has a di:ict:        adverse
interest.     If, by     such a single       vote, a public       official
can   prevent      an    otherwise       proper     decision      by     the
commissioners     court that it is        in the public interest          to
employ and pay for counsel to defend a public official                     in
a legal action, then the           official   is barred from       voting.
In &g,ez v. State ex. rel TeVu,                  446    S.W.2d 43      (Tex.
Civ. App. - Beaumont          1969, writ     ref'd n.r.e.) the        court
was confronted     with a situation         involving    a city    council
member who     voted     for    a resolution      to    authorize     legal
action to thwart       a recall election         aimed solely at        him.
The court noted that while his vote was a decisive                 one     in
securing    a particular         course      of   action,     which      was
otherwise   unremarkable,       he was disqualified       gs a matter of
&8~ from    voting because         he had    'Ia direct     personal     and
pecuniiary interest        in   the matter      under    consideration."
&    at 48 (emphasis added).           The decision     in Raaer goes to
some length to analogize         the situation      before it to      cases
involving   judicial      and quasi-judicial         functions,      citing
inter alia Tex. Const. art. V, 511 (judges may not sit                     in
cases in which they are interested).

      Thus,    this rule is bottomed  on principles     different
from those     concerning the common law   conflict-of-interest
doctrine.      A decision by  a county commissioner    to   employ



    2.   Neither    does     section     171.003      of   the    Local
Government    Code,    formerly    section    3 of     article    98813,
v-',;;i~t; o;PPIY.        That     provision     governs     potential
                  interest involving       local public     officials,
including    county commissioners,      and "business    entities"    in
which they have a specified        interest.     The prohibitions     in
section 171.003 do not apply here; a            lawsuit brought by a
commissioner     is not a "business     entity" as defined      in that
section.




                                  p. 3928
     Honorable    Thomas   B. Sehon    - Page     9   (JM-824)




     and pay counsel to defend a public official or employee at
     county    expense    is  a    quasi-judicial     act.      A    county
     commissioner    acts in a quasi-judicial       capacity    "when,    in
     the exercise of his functions,       he is required to pass upon
     facts and determine     . . . action[s]     by the facts      found."
                                       62 S.W.2d 366, 370 (Tex.        Civ.
                                     'd in Dart on other aro unds,        93
     S.W.2d 382 (Tex. 1926).        Such a judgment      is at the     very
     heart of    the   decision which     must   be made     in   deciding
     whether to provide      legal assistance    to   a public     servant
     pursuant to section 157.061 of the Local Government              Code.
     Thus, the commissioner     bringing the action is barred          from
     casting a deciding       vote on    any   aspect of     the   matter,
     including    whether    to   employ   and   pay   defense     counsel
     because of his obviously      adverse interest.      !i?a!zL zsYJxs.

           You also ask whether the county commissioner               bringing
     the suit    may be    excluded     from    meetings    of   the    commis-
     sioners court     where     discussions       are   held    between     the
     commissioners    and the attorney         they employ to defend         the
     public    officials     being     sued.     The    analysis     of     your
     question   is best approached         by considering      the nature      of
/-   the relationship     established      by the use of public funds to
     defend suits against public officials             and employees.        The
     attorney representing       a public official or employee has as
     a client the     official or employee          named as a defendant,
     not the    county.    In    other     words, the      county is     not    a
     client    and,   as   such,      it may     not    be   privy    to     the
     confidences     shielded      by   the    attorney-client       privilege
     recognized    in the law.      For    if the county and the         public
     servant    are   both    clients      of   the    same    lawyers,     then
     conflicts   of interest may arise.          In such an instance,        the
     public servant      provided      with representation        may    suffer
     serious     adverse      consequences.          Thus,      the      lawyer
     representing    the public official         or employee must        retain
     in   confidence     all    of    the   privileged      aspects     of   the
     representation    of the public        official or employee who           is
     the client.      See. e .a        Supreme    Court of      Texas,     Rules
     Governing   the State Bar' of Texas, art.             XII, g8 (Code       of
     Professional    Responsibility),       DR 4-101 (1973); Texas          Rule
     of Evidence     503.     &     Attorney     General     Opinion     JM-100
     (1984) .

r          The attorney defending      the public    servant may     not,
     except as   provided    by law,    discuss    privileged     aspects
     arising out    of the   representation    provided     with   anyone
     other than    the client.     The   county, per     se, is    not   a
     client; consequently,    there should be no occasion        for   the
-
     county commissioner    bringing   suit to attend any discussion
     of the   aspects of    the case    subsumed by     the   privileged



                                        p. 3929
Honorable    Thomas   B. Sehon    - Page   10    (.w%!4)




lawyer-client   relationship.    The  commissioners court   may
not hold such discussions     so long as a proper assertion  of
the attorney-client    privilege  is before them.

                                 SUMMARY

            A county may expend public funds for                the
        employment     of a private attorney to             repre-
        sent county officials        and employees       who have
        been sued in       their official and         individual
        capacities     if the suit involves an action of
        the official or employee arguably within the
        scope    of    the     official's      or     employee's
        authority      in   the   performance        of     public
        duties    and     if the     county       commissioners
        believe     in good      faith     that    the      public
        interest is at       stake.     Whether      or not     the
        county may properly         expend public funds          to
        defend the official or employee            is always       a
        matter of      fact.     In    the   class      of   cases
        covered by      section     157.061     of    the    Local
        Government     Code, the county must provide for
        the legal defense        of a public official            or
        employee    in any of the ways specified            in the
        section if the commissioners           decide that the
        public interest        is involved.        An    attorney
        employed by the        county to      defend a public
        official    or employee      has as     a client       only
        the   public      official      or    employee       being
        defended:      the    attorney      may    not      reveal
        aspects     of     the     case    covered       by     the
        attorney-client         privilege         to       anyone,
        including    the commissioners         court, so       long
        as the privilege       is properly     asserted.




                                           Ll
                                           Very   truly    you


                                                A
                                           JIM      MATTOX
                                           Attorney  General       of Texas

MARYRELLER
Executive    Assistant    Attorney     General

JUUGE ZOLLIE STEAKLEY
Special Assistant  Attorney          General




                                 p. 3930
Honorable   Thomas   B. Sehon     - Page   11   (.Iw=f+)




RICK GILPIN
Chairman,  Opinion    Committee

Prepared by Don Bustion
Assistant Attorney General




                                p. 3931
