Honorable Charles A. Allen       OPINION NO. M- 726
Criminal District Attorney
Harrison County                  Re:   May the Commissioners'
P. 0. Box 776                          Court of Harrison
Marshall, Texas 75670                  County provide funds
                                       for the defense of the
                                       Sheriff of its County,
                  5                    and his,Deputies, in a
                                       civil rights.action
                                       against them in U. S.
                                       District Court, South
                                       Dakota; under the stated
Dear Mr. Allen:                        facts.
       Your request for an opinion presents the question
stated below:
         "Whether or not the Commissioners' Court
          can provide the funds for the defense
          of the Sheriff and his Deputies in the
          United States District Court for the "'
          Southern District of South Dakota?"
      We quote from your letter as follows:
         "On October 23, 1969,an armed robbery oc-
          curred in Harrison County. In the pro-
          cess of investigation the identity of one
          of the robbers was established by the
          accepted procedure prescribed by the penal
          code in the identification by photograph.
          Five witnesses identified the subject's
          photograph, and based upon that and other
          Investigation, Deputy Sheriff Wayne
          Scogins signed a complaint against Leo
          W. Spradlin for armed robbery. A war-
          rant was issued and the subject was
          arrested in Canton, South Dakota. The
          Governor of Texas and the Governor of
          South Dakota, through extradition pro-
          ceedings, ordered the subject arrested

                             -3511-
Hon. Charles A. Allen, page 2 (~-726)


          and returned to Texas. Leo W. Spradlin
          filed a writ of habeas corpus in Canton,
          South Dakota and .the Sheriff's Office
                                            -   .
          and two of tne witnesses went to Soutn
          Dakota and the witnesses were unable to
          identify Leo W. Spradlin as one of the
          armed robbers and Leo W. Spradlin was
          released in South Dakota. Thereafter,
          Leo W. Spradlin filed a civil suit in
          the United States District Court for
          the Southern District of South Dakota
          alleging his civil rights were violated
          by the Sheriff and two of his deputies
          of Harrison County, Texas. Everything
          that the Sheriff and his deputies did
          was in their official capacity."
       In City of Corsicana v. Babb, et al, 290 S.W. 736
(Tex.Comm.App. 1927) it was held as follows:
         “(4-6)  Indemnification of a city officer
          against liability incurred by reason of
          an act done by him in the bona fide per;
          formance of his official duties is a ~munici-
          pal function. That expenditures made in
          indemnifying the officer against such a
          la
          p     i    0 no
          but constitute a public expense of th
          municipality for which city funds mayebe
          used, is'sustained by the weight of authority
          thiscountry.
          in                A city, therelore, is in-
          vested with the discretionarv Dower to em-
          ploy attorneys to defend one"o? its police-
          men against a criminal charge founded upon
          an act done by such officer in the bona fide
          performance of his official duties. In
          such a case the city is under no duty-&
          obligation to employ an attorney, or to in-
          demnify the officer for the payment of his
          Tees; but, if it do employ the attorney
          the municipality becomes legally bound io
          ,peyhis compensation. 28 Cyc. 454; Cullen
          V, Carthage. 103 Ind. 196. 2 N.E. 571. 51
          Am.Rep. 5041 St&e v. St.eL~~i~, 174 ko;-
          125. 73 s.W. 623, 61 L.R.A. 593; Bradley
          v. Tom of Hammonton, 38 N.J. Law, 430, 20


                              -3512-
Hon. Charles A. Allen, page 3 (M-726)       '


          Am, Rep, 404;,Bancroft v. Lynnfield,.
          pick. (Mass.) 566, 29 Am. Dec. 623; City
          of Moorehead v. Murphy, 94 Minn. 123 102 N.W..
          219.,68 L.R.A. 400, 110 Am.St.Rep. 345, 3 Ann.'
          Cae. 434;. Fullerv. Groton, 11 Gra (Mass.)
          340; Roper v. Laurinburg, 90 N.C. %27; Sverman
          v'.Carr 8 R.I. 431; 2 McQuillin on Mm.   Corp.
          Sec. 514; 1'Dillon Mun. Corp. (5th Ed.) Sec. "
          307." (Emphasis added.)
         The general rule in the United States~is that a public
body, acting in good faith, may indemnify public .officlals
for   legal expenses Incurred in suits brought ageinst them.for
acts committed in the discharge of their duties. 130 A.L.R.
736,,Annotations; 42 Am.Jur. 765, Public Funds, Sec. 63;
L.R.A.   1916 D 92, 93. Virtually all of the authorities cited
were decided upon general constitutional principles and Pn-
volve a conclusion by the courts of impli,edauthority in the
absence of a specific authorizing statutory enactment or
charter provision. These decisions were based upon the general
interest   of the public body in law enforcement'and upon the
premise that such a matter related to the general public in- ,
terest.,whether upon a city,,county, or state level.
       The Annotation at 130 A.L.R. 736 deals withythe pay-
ment of attorneyss services in defending actions  brought
against officials individually as being within the power of
the public body. The power to employ an attorney to repre-
sent a public body in court, according to the annotation,
"IS a necessary incident to its power to sue and be sued.
Most municipal corporations of any magnitude employ an attor-
ney upon an annual 'salary.~Such attorney is a municipal
officer....and attends ,to all the ordinary litigation to
which the municipality is a @arty.... 'Thegeneral rule is
that a municipal corporation or other public body may in-
demnify public officials, acting in good faith, for legal
expenses incurred in suits brought against them for acts com-
mitted in the discharge of their duties."
       The decision in City of Corsicana y. Babb, supra, be-
ina the onlv Texas decision on the ooint. brinas Texas under
th; general"rule and aligns her along with the-majority of
the states of the Union. While it involved a city rather
than a county, we nevertheless have concluded that such a
rule may equally apply to a county.
       Counties are political subdivisions of the state,:
and the Constitution of Texas recognizes counties as muni-
cipal corporations along with cities and towns, Abilene


                            -3513-
Hon. Charles A. Allen, page 4    (M-726)




v. State, 113 S.W.2d 631 (Tex.Civ.Ap     19, error dism.);
Article XI, Constitution of Texas. 8.  hey are recognized
as agencies or arms of state government,   created by the
sovereign will for the purpose of discharging various
governmental obligations, among which is the administra-
tion of justice. They are bodies politic with power to
sue and be sued. See Interpretive Commentary under Art.
XI of the Texas Constitution, Vernon's Texas Constitution,
Vol. 2, pp. 629-639, and cases cited thereunder; Article
1572, Vernon18 Civil Statutes.
       "County officers are in fact officers of the state,
hence the general principles of law applicable to other
state officers apply to them." 15 Tex.Jur.2d 278, Counties,
Sec. 49. While the County Attorney's office is,elective,
the Constitution specifically authorized the Commissioners
Court to fill a vacancy in the office of County Attorney.
Article Y, Section 21, Constitution of Texas. It is the
principal duty of both district and county attorneys to
investigate and prosecute violation of all criminal laws.
Shepperd v. Alaniz, 303 S.W.2d a46 (Tex.Civ.App. 1957, no
writ). Although it is not a prescri.bedlegal duty of the
county attorney to represent the county in its general
legal business or to conduct civil actions, it has been
held that the Commissioners' Court nevertheless has the
implied power to employ private counsel as its attorney to
represent the county in such matters. Hill Farm, Inc.
v. Hill County, 425 S.W.2d 414 (Tex.Civ.App. lgbo affd.
T    S     436 S.W.2d 320); 15 Tex.Jur.2d 318, Couhes,
s::: 9;:'
       While the powers of the Commissioners' Court of a
county are limited to the county business, it is settled
that a county has:




15 Tefx.Jur.2d 265-266,   Counties, Sec. 37,   and numerous
cases therecited.



                              -3514-
Hon. Charles A. Allen, page 5   (M-726)




        Article 2351, paragraph 15, Vernon's Civil Statutes,
provides that the Commissioners' Court "shall have all such
other powers and jurisdictions, (not therein7enumerated)
and shall perform all such other duties, as are now or may
hereafter be prescribed by law." (Words in parentheses ours.)'
Although the County Sheriff is an elected official, the
Commissioners1 Court has the power to ap oint a sheriff in    '
the event of a vacancy. 52 Tex.Jur.2d 2E; 7, Sheriffs, etc.
Sec. 5.   Sheriffs, deputies and constables are peace offi-.
cers and public officers for the county, and it is their
duty as such county officers to preserve the peace within
their jurisdiction. Their duties include the serving of
process and makin arrests. 52 Tex.Jur.2d 283, Sheriffs,
etc. Sec. 2; p. 289, Sec. a; pp. 292-293, Sec. 12.
Article 15&d, Vernon's Civil Statutes, expressly provides
that in all counties having (5,000) or more cattle, sheep,
and goats rendered for taxation, the Commissioners' Court
are authorized to employ and pay, in addition to the County's
duly constituted peace officers, such law enforcement offi-.
cers as the Court may deem necessary "to aid in the enforce-
ment of all penal laws of this state, and ferreting out and
detecting any violation thereof." There are no differences
between the powers and duties of the sheriff and his deputy.
52 Tex.Jur.2d 335, Sheriffs, etc. Sec. 55.   Under Article
XVI, Section 61, Constitution of Texas, the Commissioners'
Court must compensate all county and precinct law enforce-
ment officers, including sheriffs and their deputies.
Statutes have been enacted to implement this power, Articles
3883h, Sec. 4, 3883,   Sects. l-5, 8, 3902, 3902f-1, 3902f-2,
3902j, Vernon's Civil Statutes. The county is authorized to
pay all reasonable expenses necessary in the.proper and legal
conduct of the Sheriffls office as may be allowed by the
Commissioners' Court. ,Article 3899, subd. (b), Vernon's
Civil Statutes. The expres,spowers of the Commissioners'
Court to pass upon and expend necessary funds for the
employment of law enforcement officers and tneir reasonable
costs in carrying out law enforcement give rise to the in-
cidental or implied power to expend such funds as it may
deem necessary to protect County law enforcement officials
carrying out their duties of law enforcement. This was the
holding in the Babb Case, supra.
       It is evident that the county's public interest and
concern with law enforcement is analogous to and certainly
no less than that of a city, town or other type of municipal
corporation; and it can make no material difference in this   '*
respect as to nature of the duties involved whether the
particular peace officer works for the city, the county, or
the state. Regardless of whether the County appoints the
Sheriff or whether he be elected by the people of the County,


                           -3515-
Hon. Charles A. Allen, page 6 (M-726)


it nevertheless has policemen charged with the duties of
peace officers, with the duty to pay their salaries and
all reasonable and necessary expenses incurred in the per-
formance of their duties, and as such, the County business
may be deemed~to include, in the exercise of its discretion,
the implied power to provide suitable means for the protec-
tion'of its policemen in the bona fide discharge of their
official duties. Their duties are performed for the benefit
of the public, or county, which is directly concerned in
preserving and protecting these officers from the many hazards
to which the performance of their duties expose them.
       The Commissioners' Court jurisdiction over "county
business" is broad and is governed by a liberal rule of con-
struction, certainly as to the subject of law enforcement,
as shown in Rodgers v. County of Taylor, 368 S.W.2d 794,
796 (Tex.Civ.App. lgb3, error ref., n.r.e.) In that case,
the Court upheld the Commissioners' Court's employment of
a reporter to transcribe grand jury testimony. The lack
of authority of the court to pay for his services, which
were contracted for by the District Attorney, was challenged,
and the Court said:
         "The benefits which the County derived from
          Rodgers services are those general intan-
          gible benefits which flow to the public
          penerally from good law enforcement."
       This was the basis of the holding of the Commission
of the Appeals in Corsicana v, Babb, supra, 290 S.W. at page
737, wherein it was specifically held that:
         ...the city, in the absence of charter
         provision to the contrary, has the implied
         power, exercisable at its discretion..."
to defend their peace officers or to provide indemnification
for their acts done in carrying out their official duties
and which could be deemed a lawful public expense. In the
course of its decision, the rgourtfurther held that the self?-
tion of the means of protection was also a matter of discre-
tion, with which the courts will not interfere.
       Thus, whether the County decides to indemnify and p,¶y
the Sheriff and Deputies after the lawsuit is completed or
elects to provide an a.ttorneyand their legal defense before
and during the trial thereof, is a matter left solely to their
discretion. Likewise, it may legally and properly refuse to
do either, leaving the law enforcement officer solely to his
own resources.


                           -3516-
Hon. Charles A. Allen, page 7 (M-726)


       In City National Bank of Austin v. Presidio Count ,
26 S.W. 775 (Tex.Civ.App. lt194),the Court held that whi e
there was no statute expressly authorizing such, the Com-
missioners' Court had implied power to employ an attorneg
to represent the County Judge and Commissioners in a suit
brought against them as individuals. The Court said at
page 777:
          "We are clearly of opinion that the com-
           missioners did not exceed their powers
           in the employment of the attorneys, so
           far as the suit of Carothers against the
           county judge and commissioners was con-
           cerned. While it was nominally a suit
           against them as individuals, its design
           and effect was to obstruct and control
           the performance of their official acts,
           and we are not disposed to hold in such
           a case that they must do nothing towards
           defending such suit, or must employ
           counsel at their own expense. They had
           power to employ counsel, and to defray
           the reasonable expense thereof out of      .
           the county funds.   (Emphasis added.)
       The Court, in reaching its dfcision, further held
that the employment of counsel was ...done in the interest
and business of the county..." and that, "The validity of
their acts was not affected by the fact that they were mis-
taken, or that there was an adverse decision of the question..."
(the lawfulness of their acts being litigated) 26 S.W. 777.
       It has been repeatedly held by this office that the
Commissioners' Court has the power and authority to employ
attorneys to prosecute claims and defend suits and to pay
for such services out of the General Fund of the County when-
ever the county, as a whole, could be regarded as interested
and affected in such proceedings. Attorney General Cp!.ricn
Nos. W-662  (19%). V-995 !1950), V-232 ;1947), and ,9-4957
(1942).
       Under the holding in City National Bank of Austin v.
Presidio, supra9 the county, as a whole, may be affected
and directly interested in the litigation even though the
county was not a party and its officers are sued as individ-
uals and not in their capacities as county officials. It


                             -3517-
Hon. Charles A. Allen, page 8 (M-726)


is thus necessary to look at substance rather than form in
this regard;
       The facts of the question under consideration indi-
cate that the Sheriff and his deputies are being sued and
must respond thereto and defend themselves in a South Dakota
Federal Court. They are being sued for their official acts
as law enforcement officers in signing a complaint and mak-
ing an arrest. While the suit is nominally against them as
individuals, its design and effect could be said to impair
their discharge of their official duties, both present and
future, and affect the interest of the county as a whole.
While they are defending themselves in South Dakota, pre-
sumably at considerable expense, the County is without
their services; and the County may have an interest in pro-
tecting their peace officers from such hazards, which may
substantially impair the administration of law enforcement
in the county.
       The case of Machado v. Bal, 31 Haw. 559 (Sup.Ct.
Territory of Hawaii 1930) is squarely in point in support of
our holding. In that case the Court unanimously upheld the
authority of a county to indemnify a county police officer
for money he expended as attorney's fees, witness fees and
court costs in defending himself against both a civil and
criminal suit. Both suits were brought by one whom he had
arrested under a valid warrant of arrest in the eourse of
his official duties as a police officer in the enforcement
of the criminal laws of the county. The plaintiff in both
suits alleged that the officer had unlawfully shot and in-
jured him in the course of the arrest. The County Board
of Supervisors ordered the officer to be reimbursed for
these expenses, b.utthe county auditor refused to make pay-
ment.
       The Court expressed no hesitancy in anplying to the
full extent the law upon which it said the aushoritles
appeared to be in substantial agreement; The Court said:
         I,...The rule is thus stated in 2 McQuillin,
          Mun.Corp. (2d Ed.), Set, 532 (p. 218)~
           !Where a municipal officer incurs a loss
          in the discharge of his official duty in
          a matter in which the corporation has an
          interest and in the discharge of a duty
          imposed or authorized by law and in goci


                          -3518-
Hon. Charles A. Allen, page 9 (M-726)



              faith, the municipal corporation has
              the power to appropriate funds to reim-
              burse him, unless expressly forbidden.
              And this it may do although it may turn
              out that the officer exceeded his legal
              rights and authority..." (at p. 562-3).
              (Emphasis added.)
Parenthetically we digress to add that the case of Cit
National Bank of Austin v. Presidio County 26 S.W.Tk
supra, supports this last statement to the'effect that
county officers spend county funds for legal counsel in
defense of their official acta, even though they may be
found to have been in error in doing the acts in question.
(at p. 777; 2d ~01.).
       The Court in Machado then stated the controlling
principle wherein it-       from State v. St. Louis, 73
S.W. 623, 625 (MO.-sup. 1903) as follows:
         11
              ...'The true test in such cases is,
              did the act done by the officer relate
              directly to a matter in which the city
              had an interest, or affect municipal
              rights or property or the right or pro-
              perty of the citizens which the officer
              was charged with a duty to protect and
              defend?' (at P. 563).
Further, the Court said ' ...The arrest was for the benefit of
the public whose agent he was..." (p.567)~.  It found no dis-
tinction in principle between the authority of the county to
indemnify in a civil or criminal action. (P. 567).
       Both this Machado v. Bal case and the City of Corsi-
cana v. Babb case were decided on the basis 07 broad princi-
ales of government and of the general Dublic interest in law
enforcem&t and on the basis 03 the absence of specific
statutes prohibiting the governmental subdivision from allow-
ing the expenses paid from its public monies. The interest
and concern of Harrison County and of its citizens in the en-
forcement of the laws of the sovereign within its boundaries
is certainly   t less than the interest of the City of Corsi-
cana and its iytizens in the enforcement of those same laws
within its boundaries.



                              -3519-
Hon. Charles A. Allen, page 10 (M-726)


       A warrant of arrest may be issued only II...in the,
name of 'The State of Texas'". Art. 15.02, .V.C.C,P. ,The
basis for the issuance of a warrant of arrest, whether a
complaint only, or on information or indictment must be
"In the name and by authority of the State of Texas." Art.
21.16 and 21.21 V.C.C.P.; Ex Parte Jackson, 96 S.W. 924
(Tex.Crim. 1906j; and Wilkes v. State, 23'fS.W.2d 992 (Tex.
Crim. 1951). Further, the ultimate Texas authority under
which the arrest was made in South Dakota was the Governor
of Texas, who requested the arrest of the fugitive from
Texas in the State of South Dakota pursuant to the Uniform
Criminal Extradition Act. (See Statement of Facts at the
outset of this Opinion, and Art. 51.13, Sec. 22-23, V.C.C.P.).
We have concluded that the Commissioners' Court is not power-
less to protect the very sovereignty of the state which is
called into question.
       The rinciple declared in the City of Corsicona
case '(supra
           P and its application in the Machado case, anplied
to the facts upon which this our Opinion is based, compel
our conclusion that the principle declared and applied in the
City of Corsicana case is likewise fully applicable to the
fact situation we have under consideration.
       State ex rel La Crosse v. Averfll, 110 S.W.2d 1173
(TeX.Civ.AQp. lp                         Del Rio v. Lowe,
111 S.W.2d 1208 Tex.Civ.App. 193rrev.     on other grounds,
132 Tex. 111, 12iiS.W.2d 191, are distinguished from D
of Corsicana v. Babb, supra, because as stated in the Del
Rio case:
         "The city commissioners of Corsicana had
          no personal interest in the matter and
          were not disqualified, for that reason,
          to employ said counsel and use city funds
          for said defense, and it is not believed
          that that case is applfcable to a situa-
          tion, such as here involved, where the
          city commissioners have,a direct personal
          interest in the contract of employment
          and in the use of city funds for their own
          defense."
       Our holding herein is also to be distinguished from
the holding in the case of Tompkins v. Williams, 62 S.W.2d
70 f’~eX.COmm.dQQ. 1933), wherein it was held that the city
was not liable for the negligence of its officers or em-
ployees and that any payment for injuries to persons
                          -3520-
Hon. Charles A. Allen, page 11 (M- 726)



damaged by them, though they were engaged in the perform-
ance of their duties, would be an illegal,gift or donation.
       Attorney Generals' Opinions Nos. V-232 (1947), W-
662 (1959), ~~-1036 (1961) and WW-1385 (1962) are hereby
overruled insofar as they are in conflict with this opinion.
These opinions did not consider the Commission of Appeals
holding in City of Corsicana v. Babb, supra, nor any authori-
ties in other states. The cases relied upon in the opinions
made ,no direct holding on the question here presented but
were based upon the assumption that the County is not liable
for the torts of its officials.
       It is, of course, understood from the facts set
forth in your letter, stated above, that in this instance
the Sheriff and his Deputies were properly engaged in the
performance of,their official duties, and acting within the
scope of their employment. As such they were QreSUmably~
performing their official duties; that is, a public purpose,
and they may be deemed to have acted in the public interest
and in the interest of the county as a whole. Under the
facts and circumstances Qresented, the Commissioners' Court
in the exercise of its discretion; and in the event the
Commissioners1 Court deems it expedient to protect th
county's interest, ma provide the funds for the prot&tion
and.defense of the & eriff and his Deputies in the United
States District Court for the Southern District of South
Dakota, who did nothing but their sworn duty in serving a
valid warrant on a defendant as ordered pursuantto the
Texas Penal Code.


                 SUMMARY

      Where the County Commissioners' Court finds
      that the Sheriff and his Deputies were Qrop-
      erly engaged in the bona fide performance of
      their official duties, and acting within the
      scope of their employment, and therefore
      they were performing a public purpose and
      acting in the QUbliC interest and in the in-
      terest of the county as a whole and not con-
      trary thereto, the Commissioners' Court may,
      in the exercise of its discretion, even
      though they are under no duty or obligation
      to do so, provide the funds for the legal
                            -3521-
Hon. Charles A. Allen, p. 12 (M-726)


       defense of the Sheriff and his Deputies in
       a suit brought against them individually
       and not in their capacities as county
       officers and wherein the county was not
       made a party to such suit. This opinion
       is limited in scope to the factual situa-
       tion presented.
       Attorney General OpinionsNos. V-232 (1947).
       WW 662 (1959), WW 1036 (1961), and WW 1385
       (1962) are overruled to the extent of con-
       flict witn this opinion.




                                       General of Texas
Prepared by Ben M. Harrison
Assistant Attorney General
APPROVED:
OPINION COMMITTEE
KERNS TAYLOR, Chairman
W, E, ALLEN, Co-Chairman
Larry Craddock
John Banks
Gilbert Pena
Robert Flowers
MJUDE F: GRIFFIN
Staff Legal Assistant
ALFRED WALKER
Executive Assistant
NOLA WRITE
First Assistant




                              -3522-
