                               ATTORNEY GENERAL OF TEXAS
                                            GREG        ABBOTT




                                                 August 12, 20 II



Mr. Robert Scott                                          Opinion No. GA-0878
Commissioner of Education
Texas Education Agency                                    Re: Authority of an independent school district to
1701 North Congress Avenue                                defray the legal expenses of an administrator who
Austin, Texas 78701-1494                                  files an action for defamation (RQ-0953-GA)

Dear Commissioner Scott:

       You ask whether an independent school district may defray the legal expenses of an
administrator who files a lawsuit against a third party for defamation. l

         A letter from an attorney representing the school district in question explains that "[olne or
more of the District's administrators have been subject to stories in local media, alleging
improprieties in connection with student testing, student admissions and attendance, etc.,,2 The letter
indicates that "[tlhe stories have had the tendency to injure the reputation not only of the
administrators, but of the District itself," and that "[tlhe Board of Trustees believes that the District
itself has been defamed[.]" Safi Letter at 1-2. The letter asks us to "assume that the Board believes
that the expenditure in funding the plaintiff's lawsuit would be in the District's interest, and not
merely in the employee's personal interest." [d. at 3.

       This is a case of first impression in Texas. No judicial decision or attorney general opinion
has heretofore considered a situation in which a governmental body seeks to payor reimburse its
ernployee's legal expenses for bringing a lawsuit as a private party plaintiff.

        When the employee is a defendant, we have said that a "school board's 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." Tex.
Att'y Gen. Op. No. GA-0104 (2003) at 4 (citations omitted). As we have noted, the attorney for the



         iLetter from Mr. Robert Scott, Commissioner of Education, Texas Education Agency, to Honorable Greg
Abbott, Attorney General of Texas (Mar. 15,2011), https://www.oag.state.tx.us/opinlindex_rq.shtml ("Request Letter").

       'Letter from S. Anthony Safi, Mounce, Green, Myers, Safi, Paxson & Galatzan, to Mr. Robert Scott at 1 (Jan.
24,2011) (attached to Request Letter), https://www.oag.state.tx.us/opinlindex_rq.shtml ("Safi Letter").
Mr. Robert Scott - Page 2                                (GA-0878)



school district argues that the plaintiff-employee's contemplated legal action "would be in the
District's interests." Safi Letter at 3.

        However, as the attorney for the district acknowledges, "the District itself does not have
standing to file a defamation case on its own behalf." Id. at 2. In a Texas court of appeals case, the
court considered whether a governmental body-in that case an independent school district-may
sue for defamation. See Port Arthur Indep. Sch. Dist. v. Klein & Assocs. Political Relations, 70
S.W.3d 349, 351 (Tex. App.-Beaumont 2002, no pet.). After observing that the matter is "a
question of law," the court held that a governmental body is prohibited from filing an action for
defamation. Klein, 70 S.W.3d at 353. Relying on the United States Supreme Court's decision, New
York Times v. Sullivan, 376 U.S. 254 (1964), the Klein court declared:

                             In distinguishing a suit brought by a governmental unit from
                   a suit filed by a government official, the United States Supreme Court
                   has stated as follows: "For good reason, 'no court oflast resort in this
                   country has ever held, or even suggested, that prosecutions for libel
                   on government have any place in the American system of
                   jurisprudence. '"

Klein, 70 S.W.3d at 351 (quoting Sullivan, 376 U.S. at 291).

        The fact that a governmental body is itself proscribed from bringing an action for defamation
means that the administrators at issue here may not do so on the district's behalf-or with funding
from the district. Because the United States Supreme Court has said that governmental bodies may
not bring defamation lawsuits, the governmental body's employee may not attempt to circumvent
that prohibition by bringing a personal lawsuit with funding from the governmental body because
doing so would necessarily be limited to the employee's personal interests.' The district's use of its
resources to advance an employee's personal interests fails the test for financial support or
reimbursement articulated in Attorney General Opinion GA-0104 (2003).4 Thus, we conclude that
an independent school district may not defray the legal expenses of an administrator who files a
private defamation lawsuit that advances his or her personal interests.




         3In a recent decision, the Texas Supreme Court held that, because a hospital that has been paid by a workers'
compensation carrier is barred by statute from pursuing a claim against the covered patient for the remaining charges,
a hospital may not file a lien against the patient's property to recoup the remaining charges because it "cannot accomplish
indirectly (by filing a lien) what [it] could not do directly (by filing suit)." Daughters of Charity Health Servs. of Waco
v. Linnstaedter, 226 S.W.3d 409, 410 (Tex. 2007).

         4Moreover, it might be questioned whether reimbursement to an employee who acts as a plaintiffis ever proper.
Unlike an employee who is sued as a defendant, a plaintiff employee is not required to incur any legal expenses on behalf
of his governmental body.         And in the present instance, the administrator is attempting to raise an
issue--defamation-which his employer would be barred ab initio from raising in a legal action.
Mr. Robert Scott - Page 3                   (GA-0878)



                                    SUMMARY

                     An independent school district may not defray the legal
              expenses of an administrator who files an action for defamation.

                                            Very truly yours,




DANIEL T. HODGE
First Assistant Attorney General

DAVIDJ. SCHENCK
Depnty Attorney General for Legal Counsel

JASON BOATRIGHT
Chair, Opinion Committee

Rick Gilpin
Assistant Attorney General, Opinion Committee
