                               ATTORNEY GENERAL OF TEXAS
                                            GREG       ABBOTT




                                               October 8,2003



The Honorable Will Hartnett                                   Opinion No. GA-O 115
Chair, Committee on Judicial Affairs
Texas House of Representatives                                Re: Liability for improper payment of the
P.O. Box 2910                                                 attorney’s fees of a non-prevailing party;
Austin, Texas 78768-2910                                      clarification of Attorney General Opinion
                                                              GA-0062 (2003) (RQ-0073-GA)

Dear Representative     Hartnett:

         You have asked this office questions concerning the possible liability of certain individuals
for, or recoupment of, public funds whose expenditure a prior attorney general opinion found to
violate article III, section 52(a) of the Texas Constitution.  Your request letter describes these
questions as a “follow-up to Opinion GA-0062.“’

         Attorney General Opinion GA-0062, originally requested by your predecessor as chair of the
Committee on Judicial Affairs, concerned a school district that spent public funds to pay the legal
fees of an employee who unsuccessfully sued the district. See Tex. Att’y Gen. Op. No. GA-0062
(2003). Assuming that state of affairs as represented by your predecessor, we wrote that such a
situation was

                 one in which the school district, having won the lawsuit, has no
                 obligation to the employee, and the employee no claim on the district.
                 No argument has been presented that such a payment serves a public
                 purpose, and we know of none. Accordingly, the payment of any sum
                 as legal fees for the employee is a direct violation of article III,
                 section 52(a) of the Texas Constitution.

Id. at 2.

        In light of our conclusion in Opinion GA-0062, you ask two further questions. Presuming
the impropriety of the payment of the legal fees, you ask (1) whether the school trustees are
“individually liable to the district for the wrongful payment,” and (2) whether the district may
“withhold the wrongful payment from the non-prevailing employee’s wages or salary.” Request
Letter, supra note 1, at 1.


         ‘Letter from Honorable Will Hartnett, Texas House of Representatives,   to Honorable Greg Abbott,   Texas
Attorney General (May 17,2003) ( on f 11e with Opinion Committee) [hereinafter Request Letter].
The Honorable Will Hartnett      - Page 2        (GA-01 15)




        It must be noted as a preliminary matter that an attorney general opinion is not a judgment
by a court of competent jurisdiction. Although attorney general opinions “are persuasive, they are
not binding on the courts.” Comm ‘rs Ct. of Titus County v. Agan, 940 S.W.2d 77,82 (Tex. 1997);
see also White v. Eastland County, 12 S.W.3d 97,101 (Tex. App.-Eastland 1999, no pet.) (attorney
general opinions “are entitled to careful consideration,” but are “not binding on the courts”).
Accordingly, while it remains the view of this office that a payment of the sort discussed in Opinion
GA-0062 violates article III, section 52(a), that opinion is not a court judgment that imposes liability
on any party.

         If litigation occurs on the matter at hand, the answer to your first question as to the potential
liability of the trustees for a wrongful payment would depend on the applicability of the doctrine of
official immunity. “This immunity stems from the public policy which encourages public officers
and employees to perform their duties without fear of personal liability.” Alamo Wor&rce Dev.,
Inc. v. Vann, 21 S.W.3d 428, 434 (Tex. App.-San Antonio 2000, no pet.). The elements of an
official immunity defense are that officials receive such immunity if they perform “( 1) discretionary
duties (2) in good faith as long as they are (3) acting within the scope of their authority.” Id. The
element of good faith requires proof that “a reasonably prudent official, under the same or similar
circumstances, could have believed that his or her actions were justified.” Id. The defense “can be
established as a matter of law when the official’s factual recitation is otherwise supported by the
evidence. . . [or ] 1‘f reasonable minds could not differ from the conclusion drawn from the underlying
facts.” Id. at 434-35. Given that we cannot find facts in the opinion process, see Tex. Att’y Gen.
Op. No. GA-0087 (2003) at 1, we cannot determine in any particular instance whether the elements
of a defense of official immunity have been met. But unless a court found that discretionary action
taken in the scope of a public servant’s duties was not taken in good faith, such a public servant
would not be personally liable for damages alleged to have been caused by that action.

         Your second question is whether the district may withhold moneys from the salary of the
employee who brought the whistle-blower suit. See Request Letter, supra note 1, at 1. You do not
indicate that there has been any court judgment establishing that the employee is indebted to the
district on account of the board’s action.

        III Benton v. Wilmer-Hutchins Indep. Sch. Dist., 662 S.W.2d 696 (Tex. App.-Dallas 1983,
writ dism’d), disapproved on other grounds by Orange County v. Ware, 819 S.W.2d 472 (Tex.
1991), the question presented was whether a school district could deduct from employees’ paychecks
amounts it asserted had in the past been overpaid. The court of appeals found that the district could
not do so, on the basis of “the common-law rule that mutual debts do not extinguish each other in
the absence of agreement or judicial action.” Benton, 662 S.W.2d at 698. Accordingly, the court
held that “in the absence of such an agreement or consent, a debtor, such as the district, has no right
to withhold payment of an amount otherwise lawfully due on a contract by offsetting an unrelated
claim against his creditor.” Id.

         While the Texas Supreme Court, in Orange County v. Ware, disapproved dicta in Benton that
compared the proposed offsetting to a garnishment of wages that would be impermissible under
article XVI, section 28 of the Texas Constitution, see Ware, 8 19 S.W.2d at 474, nothing in Ware
affects the common-law principle articulated by Benton. Ware concerned a statute that forbade the
county to issue warrants to Ware, a newly elected county commissioner against whom the county
      The Honorable Will Hartnett    - Page 3        (GA-01 15)




      had a number of bail bond forfeiture judgments. While there was some question as to the precise
      amount Ware owed Orange County, his debt was not in dispute. See id. at 475. The sole question
      in Ware was whether a particular statute allowing certain offsets violated the Texas Constitution, not
      the common law. The supreme court made the distinction quite clear: “The law may restrict the
      right of offset, as Benton notes, but the Constitution does not.” Id. at 474.

               In this instance, however, there is apparently neither an agreement between the employee and
      the district, nor a judgment of any kind against the employee. We note again that Opinion GA-0062
      is not a court judgment, and that it in no way constitutes or evidences a debt due and owing to the
      district by the employee. Absent either an agreement on the part of the employee or a judgment in
      the district’s favor against the employee, the district may not attempt to recoup the payment in
      question from the employee’s wages.




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The Honorable Will Hartnett    - Page 4       (GA-01 15)




                                       SUMMARY

                        Whether members of a board of trustees of an independent
                school district may be personally liable for damages caused by a
               discretionary decision made in their official capacities will depend
               ‘upon whether a court finds that the decision in question was made in
                good faith. Absent an agreement or judicial action, a school district
               may not withhold purported damages from an employee’s salary.
               Attorney general opinions are advisory in nature and are not binding
                on a court.




BARRY R. MCBEE
First Assistant Attorney General

DON R. WILLETT
Deputy Attorney General for Legal Counsel

NANCY S. FULLER
Chair, Opinion Committee

James E. Tourtelott
Assistant Attorney General, Opinion Committee
