                                              KEN PAXTON
                                         ATTORNEY GENERAL OF TEXAS


                                                  May 11, 2015



The Honorable Elton R. Mathis                                Opinion No.         KP-0016
Waller County Criminal District Attorney
645 12th Street                                              Re: Payment of attorney's fees for members
Hempstead, Texas 77445                                       of a county commissioners court under
                                                             criminal investigation for potential violations
                                                             of the Open Meetings Act (RQ-1228-GA)

Dear Mr. Mathis:

        You ask two questions about the payment of attorney's fees for current and former
members of the Waller County Commissioners Court who were under criminal investigation for
potential violations of the Open Meetings Act. 1 You state that after a criminal complaint was filed
alleging the violations, the county criminal district attorney's office2 recused itself from the matter.
Request Letter at 1. The commissioners court "voted to retain counsel to defend county officials
who may be subject to claims or litigation for actions arising from the performance of a public
duty in which the public interest requires a defense of such matters." Id. at 2-3. Special
prosecutors presented their investigation to the grand jury, which declined to return indictments
against the commissioners. Id. at 2. Thereafter, the commissioners court voted to approve
payment of legal fees for defending county officials who were the subject of the claims and the
investigation. Id. In its order, the commissioners court found that: (1) the allegations implicated
county officials in civil or criminal investigations concerning the performance of their public
duties; (2) the public interest in the matter "required a vigorous defense"; (3) the district or county
attorneys could not provide representation because of a conflict of interest; (4) the defense required
outside representation; and (5) the criminal investigation "concluded with no findings of




         1
          See Letter from Honorable Elton R. Mathis, Waller Cnty. Crim. Dist. Att'y, to Honorable Greg Abbott, Tex.
Att'y Gen. at 1 (Nov. 6, 2014), https://www.texasattorneygeneral.gov/opinion/requests-for-opinion-rqs ("Request
Letter").

         2
            The Waller County Criminal District Attorney has all of the duties that the law assigns to Texas county and
district attorneys. TEX. Gov'T CODE ANN.§ 44.337(a}-(b) (West 2004).
The Honorable Elton R. Mathis - Page 2                  (KP-0016)



misconduct." Id. Subsequently, the current and former commissioners submitted invoices they
had received from the defense counsel for payment by the county. Id. 3

        You first ask whether section 157.901 of the Local Government Code authorizes the
payment of attorney's fees for a criminal investigation that did not result in any criminal charges
filed. Request Letter at 1. Under subsection 157.901(a), a "county official or employee sued by
any entity ... for an action arising 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."
TEX. Loe. Gov'T CODE ANN. § 157.901(a) (West 2008). Subsection 157.901(b) requires a
commissioners court to employ and pay private counsel for a representation under subsection (a)
when "additional counsel is necessary or proper," 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." Id. § 157.901(b). A court of appeals has determined that subsection 157.901(b)'s
reference to criminal charges concerns circumstances that require a county to employ private
counsel to represent its officials and employees in civil, not criminal, matters. White v. Eastland
Cnty., 12 S.W.3d 97, 102 (Tex. App.-Eastland 1999, no pet.). Section 157.901 does not address
county authority to provide legal representation to its officials and employees in criminal matters.
See White, 12 S.W.3d at 102.

        As the court in White recognized, however, a commissioners court has general authority to
employ private attorneys in the absence of constitutional or statutory limitations. Id. at 100 (stating
that a county's "implied powers include the authority to contract with experts when necessary,
including attorneys"); see also Guynes v. Galveston Cnty., 861 S.W.2d 861, 863-64 (Tex. 1993)
(determining that a commissioners court may employ attorneys provided that doing so does not
usurp other officials' statutory duties); Tex. Att'y Gen. Op. No. JM-1276 (1990) at 11 (stating that,
with respect to counties, section 157.901 "does not supplant the common-law rule"). This office
has summarized the standards that a court would likely utilize when reviewing the payment of
criminal defense fees:

                 Provided that the official or employee is not found guilty, the
                 commissioners court may reimburse criminal defense costs upon its
                 determination that the prosecution was for an act performed in the
                 bona fide performance of official duties and that the expenditure will
                 serve a public interest and not merely an officer's or employee's
                 private interest.




        3
          If a governmental body's actions are determined to violate the Open Meetings Act, they are voidable and
subject to being set aside by judicial proceeding. See TEX. Gov'r CODE ANN. § 551.141 (West 2012); Smith Cnty. v.
Thornton, 726 S.W.2d 2, 2-3 (Tex. 1986).
The Honorable Elton R. Mathis - Page 3                       (KP-0016)



Tex. Att'y Gen. Op. No. GA-0523 (2007) at 4. 4 Whether employing legal counsel in such
circumstances "implicates a legitimate public interest is a question of fact to be resolved by the
political subdivision's governing body in the first instance." Tex. Att'y Gen. Op. No. JC-0047
(1999) at 3; White, 12 S.W.3d at 104 (determining that whether a county will provide criminal
counsel to its officers or employees in appropriate circumstances is a matter "of governmental
policy and discretion"). Accordingly, a county has the authority to pay attorney's fees for a
member of a commissioners court who sought legal representation for a criminal investigation that
did not result in any criminal charges filed, provided that the commissioners court determines,
subject to judicial review, that the payment will serve a public interest and not merely the
member's private interest.

        While a county may have the authority to pay for the criminal defense of county officials
in principle, you also ask whether individual members of a commissioners court who were under
criminal investigation may vote on the approval of county payment of their own attorney's fees
and the fees of other commissioners subject to the investigation. Request Letter at 1. As a matter
of public policy, a public official may not cast the deciding vote in a matter in which the official
has a direct, personal interest. Hager v. State ex rel. Te Vault, 446 S.W.2d 43, 49-50 (Tex. Civ.
App.-Beaumont 1969, writ refd n.r.e.). This office determined in a prior opinion that public
policy precluded a city council member who had been indicted for violating the Open Meetings
Act from voting not only on county payment of attorney's fees for the member's own defense but
also on payment of attorney's fees for the defense of other council members indicted for the same
offense. Tex. Att'y Gen. Op. No. JC-0294 (2000) at 1--4. The opinion observed that it would "be
extremely difficult for any of the indicted council members to make a disinterested determination
as to the other council members indicted for the same offense." Id. at 3. Following the same
reasoning, a court would likely conclude that public policy precludes a member of a commissioners
court under criminal investigation from voting on county payment of the member's criminal
defense fees or the fees of other members subject to the same investigation. 5




          4
           Citing Attorney General Opinion JC-0294, you suggest that a county may not pay for counsel to provide
criminal defense services to a county official unless charges are filed and the official is found not guilty. Request
Letter at 3--4. In that opinion, city officials had been indicted, and because "[t]he city may not pay the expenses of an
official who is found guilty of the charges [, the city council] must therefore defer its decision to pay the legal expenses
until after disposition of the charges." Tex. Att'y Gen. Op. No. JC-0294 (2000) at 9. The opinion should not be read
as precluding the payment of attorney's fees for services rendered in a criminal matter that concludes favorably at the
grand jury stage.

         5
          You do not ask and we do not address the authority of members of a governing body who are not subject to
criminal investigation to approve payment of attorney's fees for other members who are under criminal investigation.
Cf Tex. Att'y Gen. Op. No. GA-0554 (2007) at 2 (stating that generally a proposition is enacted if it receives "a
majority vote of the members present and voting at a meeting where a quorum is present" (citation and quotation
marks omitted)); Comm 'rs Ct. of Limestone Cnty. v. Garrett, 236 S.W. 970, 973 (Tex. Comm'n App. 1922, judgm't
adopted) (stating that the "general rule is that, in the absence of an express [statutory] provision to the contrary, a
proposition is carried in a deliberative body by a majority of the legal votes cast").
The Honorable Elton R. Mathis - Page 4          (KP-0016)



                                     SUMMARY

                      A county has the authority to pay attorney's fees for a
              member of a commissioners court who sought legal representation
              for a criminal investigation that did not result in any criminal
              charges filed, provided that the commissioners court determines,
              subject to judicial review, that the payment will serve a public
              interest and not merely the member's private interest.

                      A court would likely conclude that public policy precludes a
              member of a commissioners court under criminal investigation from
              voting on county payment of the member's criminal defense fees or
              the fees of other members subject to the same investigation.

                                            Very truly yours,



                                            ~?~
                                            KEN PAXTON
                                            Attorney General of Texas



CHARLES E. ROY
First Assistant Attorney General

BRANTLEY STARR
Deputy Attorney General for Legal Counsel

VIRGINIA K. HOELSCHER
Chair, Opinion Committee

WILLIAM A. HILL
Assistant Attorney General, Opinion Committee
