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DAN MORALES
 ATTORNEY
      CENERAL                                         November       12,1998



   The Honorable Judith Zaffirini                              Opinion No. DM-488
   Chair, Committee on Health
    and Human Services                                         Re: Whether the board of directors of an appraisal
   Texas State Senate                                          district may reimburse attorney fees for the chief
   P.O. Box 12068                                              appratser who was a defendant in a criminal action,
   Austin, Texas 78711                                         and related questions  (RQ-1064)


   Dear Senator Zaffirini:

            You ask generally whether an appraisal district’s board of directors may reimburse attorney
   fees the district’s chief appraiser incurred in defending a criminal action for official misconduct. We
   conclude that the district may do so under the common law if the board makes certain preliminary
   determinations. Because a governmental body must determine its authority to reimburse an officer’s
   or employee’s attorney fees on a case-by-case basis, our conclusion is necessarily limited to the
   situation you describe. This conclusion overrules, to the extent of inconsistency, several attorney
   general opinions written since 1990.

            Yourninequestions   arebasedupona   situationin AtascosaCounty.   Yourecountthatin    1993
   the chief appraiser ofthat county, Mr. Vernon Warren, was indicted for alleged official misconduct.
   The indictment centers upon a certain property that had been valued as qualified open-space land
   under Tax Code chapter 23, subchapter D. According to the indictment, Mr. Warren, as chief
   appraiser, determined in 1992 that a change in the use of the land had occurred and that the land
   could no longer be valued as qualified open-space land. ’ Again, according to the indictment,
   Mr. Warren failed to notify the landowners “as soon as possible after making the determination,”
   as Tax Code section 23.55(e) requires.        Ultimately, in April 1996, the trial court granted
   Mr. Warren’s motion for a directed verdict upon the conclusion of the State’s evidence.

           According to your letter, the Atascosa County Appraisal District’s (“appraisal district”)
   Board of Directors voted on January 27, 1994, to pay Mr. Warren’s attorney fees contingent upon
   a determination that payment would be legal. The district attorney informed a board member that
   the payment might be illegal. Based upon that opinion, the board has not in fact paid any of
   Mr. Warren’s attorney fees.




                ‘See Tax Code $j 23.55(e) (stating that chief appraiser is to make determination   that change in use of land has
   occurred).
The Honorable Judith Zaffuini            - Page 2           (~~-488)




         You also describe a twist in the facts that you believe may affect our conclusion.
Mr. Warren’s contract ofemployment with the appraisal district expired on December 3 1,1995, and
was not renewed. Thus, you point out, some of Mr. Warren’s attorney fees were incurred a&r he
left his post as Chief Appraiser of Atascosa County.

         Preliminarily, we suggest that the district attorney’s advice to the board in January 1994, that
payment of Mr. Warren’s attorney fees as they accrued probably was illegal, may have been
incorrect. A political subdivision of the state, such as an appraisal district, may provide legal
representation for an officer or employee or pay the officer’s or employee’s attorney fees as they
accrue if the political subdivision is authorized to do so either by statute or under the common law.*
Numerous opinions of this office recognize a political subdivision’s common-law authority to
provide legal representation to an officer or employee.’

         In response to your first question, we conclude that the appraisal district board may now vote
to reimburse all of Mr. Warren’s legal fees, incurred in the official misconduct prosecution, that it
considers reasonable if the board is authorized, either by statute or under the common law, to do so.
While we find no statute authorizing the appraisal district to pay the chief appraiser’s legal fees in
this instance,4 neither do we find any statute preempting or limiting in any way the common law.
Accordingly, we will consider the appraisal district’s common-law authority to reimburse the chief
appraiser’s legal expenses.

        In our opinion, the common law permits the appraisal district to reimburse the chief
appraiser’s legal expenses ifthe board makes two fact findings. First, the boardmust determine that
the suit involved a public interest requiring a vigorous defense, or, conversely, that paying
Mr. Warren’s legal fees serves a public, not merely Mr. Warren’s private, interest.              This
determination theoretically ensures that the board complies with article III, sections 50, 51, and 52
of the Texas Constitution,5 which forbid the use of public funds for purely private purposes.6


         ‘See Letter Opinion   No. 97-049 (1997) at 1.

         ‘See, e.g., Attorney General Opinions Jh4-824 (1987) at 2-3; JM-755 (1987) at 1-2; Letter OpinionNo.        97-065
(1997) at 2.

          ‘While Tax Code section 42.01( l)(A) authorizes a taxpayer to appeal an order of the appraisal review board
determining the taxpayer’s protest that the chief appraiser failed properly to notify the taxpayer to the district court, see
Tax Code $5 41.41 l(a), 42.21(a), we find no provision for payment of the chief appraiser’s legal fees should the
taxpayer sue the chief appraiser for failure to notify.

         5See Attorney   General Opinion DM-107 (1992) at 3 (and opinions        cited therein).

          ‘See id.; Attorney General Opinion m-824 (1987) at 2. You suggest that paying the attorney fees of an
appraisal district’s employee who is the subject of what you call “nuisance litigation” may serve a public interest. You
suggest that the threat of nuisance litigation, e.g., “‘liens’ and ‘court documents’ filed or issued by the ‘Republic of
Texas’ people,” is “of palticular concern to persons employed by taxing authorities, who, because of the process itself,
frequently find themselves in disputes arising from the performance of their official duties. These situations can
occasionally lead to personal and political animosity or ‘spite’ litigation without any fault whatsoever of the public
                                                                                                           (continued...)


                                                             p.   2767
The Honorable       Judith Zaftirini      - Page 3            (DM-488)




Second, the board must determine that Mr. Warren committed the alleged action or omission that
was the basis of the lawsuit while acting in good faith and within the scope of offkial duties.’ The
board need not determine, however, that the chiefappraiser’s course ofaction was correct.* Because
these two determinations require the resolution of fact questions, they are beyond the scope ofthe
opinion process. Resolution is more appropriately the board’s province.

        By concluding that a political subdivision may reimburse an officer’s or employee’s legal
expenses in certain circumstances, we are overruling, to the extent they are inconsistent with this
opinion, previous opinions of this office, including Attorney General Opinion DM-107 and Letter
Opinion Nos. 97-065,97-049,     and 90-93,” that conclude a governmental body may not reimburse




         “(...continued)
employee or official.” This oftice previously has acknowledged that a governmental    body’s interest in protecting
employees from vexatious lawsuits may be sufficiently public to warrant paying employees’ attorney fees:

               We suppose that it is not unknown for.          suits, on some occasions, merely to be vexatious,
               and perhaps even wholly mischievious           [sic]. The suits are initiated by persons whose
               judgment and motive are sometimes unfathomable.              The purely private decision to sue a
               public servant is not subject to the checks-and-balances        so much a part of the nature and
                functioning of a political entity in its day-to-day operations. Public sewants subject to suits
               by private parties for official acts are apt to be distracted from their duties by the litigation,
               and concommitani        [sic] worries about meeting the costs of a legal defense.          Fear of
               boundless litigation, especially if it proves to be frivolous after a lengthy and expensive
                process, may make public servants timid in the discharge of their duties.

Attorney   General Opinion    JM-755 (1987) at 5.

           ‘See Attorney   General Opinions   DM-107 (1992) at 3; JM-824 (1987) at 3.

           ?See Attorney   General Opinions   DM-107 (1992) at 3; JM-824 (1987) at 3.

          %ee Attorney General Opinion DM-107 (1992) at 4; Letter Opinion Nos. 97-065 (1997) at 3; 97-049 (1997)
at 2; 90-93 (1990) at 2-3.


                                                              p. 2760
The Honorable Judith Zaffirini           - Page 4            (DM-488)




an officer or employee for legal expenses in any case. ‘O On the other hand, our conclusion today
affirms two prior opinions of this office: Attorney General Opinions MW-252 and M-736.”

         Our statement in Letter Opinion No. 90-93 implying that the common law does not authorize
a political subdivision to “reimburse a public official or employee” after that person has incurred
legal expenses is, in truth, contrary to the common law. I2 The common law actually permits a
political subdivision to reimburse an employee for legal bills. I3 Thus , unless expressly forbidden
by charter, statute, or constitutional provision, a political subdivision has the implied power,
exercisable upon discretion, to provide suitable means of protecting employees against litigation
arising from job-related acts. I4 “Protecting” an employee may include hiring and paying an attorney
to defend the employee if the political subdivision reasonably believes that providing a defense is
in the public interest and the employee was acting within the scope of authority in the performance




          “Of course, there are policy arguments supporting the conclusion that reimbursement is not appropriate. First,
a political subdivision should exercise some control over who the attorney is and what fees are charged. Then, too, the
Texas Legislature has addressedreimbursementin      at least three stahltes, eachrequiring apolitical subdivision’s pre-trial
approvalofcounsel.    Section 157.901(b) oftbe LocalGovemment         Codestatesthat, under&      appropriatecircumstances,
“the official or employee is entitled to have the commissioners court of the county employ and pay private counsel.”
(Emphasis added.)      Moreover, other provisions permitting OT requiring reimbursement              contemplate    a political
subdivision’s authorization of counsel prior to litigation. It is clear from these provisions the legislature is aware that
public employees run the risk of being sued as a result of performing their public duties, and it has provided a remedy.

          But we are not persuaded by these policy arguments         First, the authority of a poli&l  subdivision to ratify and
reimburse attorney fees is discretionary:     a political subdivision is under no obligation to hire and pay an attorney OI to
reimburse an employee for legal bills; it has discretion to do either or neither. If apolitical subdivision’s governing body
disapproves the choice of attorney OT finds his fees unreasonable,          it has discretion to do nothing. Additionally, the
indemnification    statutes have a single feature in common: each goes beyond the common law and requires, rather than
permits, a political subdivision to provide legal counsel for an employee under the circumstances given. Nothing in the
statutes repeals OI supplants common-law protections. To the contrary, this office has concludedthat Local Government
Code section 157.90 1 “strengthens the rule by requiring a county to defend a public servant in a certain class of cases.”
Attorney General Opinion JM-755 (1987) at 3.

          “See Attorney    General Opinions    MW-252 (1980) at 2; M-726 (1970) at 6

          ‘“See Letter Opinion   No. 90-93 (1990) at 2-3

          “See Attorney    General Opinions    MW-252 (1980) at l-2; M-726 (1970) at 6-9.

         “City of Corsicona v. Babb, 290 S.W. 736, 737 (Tex. Comm’n App. 1927, holding approved); Attorney
General Opinion M-726 (1970) at 6; see Rodgers v. Counry ofTaylor, 368 S.W.2d 794,796 (Tex. Civ. App.--Eastland
1963, writ ref d n.r.e.); Cbrestman v. Tompkins, 5 S.W.2d 257, 260 (Tex. Civ. App.--Dallas 1928, writ ref d).


                                                              p.   2769
The Honorable Judith Zaftirini          - Page 5           (DM-488)




of public duty. I5 A political subdivision authorized to contract for an attorney’s services prior to
litigation subsequently may ratify such an agreement after litigation concludes.‘6

          While we find no Texas case involving reimbursement of a public employee’s legal bills, we
believe it likely that the Texas Supreme Court would be persuaded by case law of jurisdictions
applying the common-law        rule to permit a political subdivision to ratify and reimburse an
employee’s legal bills if he or she were sued for acts done in the discharge of official duties.”
Whereas other jurisdictions     have faced the issue of reimbursing a public employee for legal
expenses, Texas courts have been required only to find a city’s authority to “employ an attorney [on
behalf of a public employee], or to indemnify the [employee] for the payment of [attorney] fees.“ls
Reimbursement has not been an issue in Texas indemnification cases, so there has been no reason
for the courts to address it. However, in City of Corsicana v. Bnbb the Texas Commission of
Appeals cites as authority cases from other jurisdictions       and treatises that explicitly permit
ratification and reimbursement as a form of indemnification.”

         We further believe that reimbursing an officer’s or employee’s legal expenses, incurred to
defend against an action premised upon an on-the-job act or omission, does not as a matter of law
contravene Texas Constitution article III, sections 44 and 53.*” Both sections 44 and 53 prohibit the
state or a political subdivision from retrospectively granting an officer or employee additional
compensation, fees, or allowances for services already rendered.*’ Thus, for example, this office
previously has concluded that a prosecutor’s plan to use drug-seizure funds to award merit bonuses
to his or her employees was unconstitutional because the bonuses had not been approved prior to the


         “Babb, 290 S.W. at 737; City Nat’1 Bank v. Presidio County, 26 S.W. 775,777 (Tex. Civ. App. 1894, no wit);
Attorney General Opinions m-1276     (1990) at 11; MW-252 (1980) at 2, H-887 (1976) at 2-3; H-70 (1973) at 5; see
Rodgers, 368 S.W.Zd at 796-97.

        16Attomey General     Opinion M-726 (1970) at 6; see Rodgers, 368 S.W.2d at 797; Attorney General Opinion
H-544 (1975) at 8.

         “See Machado Y Bal, 31 Haw. 559 (Haw. 1930); Mess?~ore Y Kracht, 137 N.W. 549 (Mich. 1912); Ciq of
Moorhead v. Murphy, 102 N.W. 219 (Minn. 1905); Stare ex rel. Crow v. Cify ofSt. Louis, 73 S.W. 623 (MO. 1903);
Barneff v. Mayor of Paterson,6 A. 15 (NJ. 1886). Indeed, the Michigan Supreme Court has articulated the breadth of
the common law: “[A] municipality     [or other political subdivision] has the right to employ counsel to defend [an
employee], or to appropriate funds for the necessary expenses incurred by him in such defense, or pay a judgment
rendered against him.” Meumorc,     137 N.W. at 550 (quoting Sherman Y. Cm-r, 8 R.I. 431 (RI. 1867)); accord
Machado, 31 Haw. at 562; Murphy, 102 N.W. at 219; State e.x WI. Crow, 73 S.W. at 625; Babb, 290 S.W. at 737.

         “Bobb, 290 S.W. at 737; see Chrestman, 5 S.W.Zd at 261; City Nat’1 Bank, 26 SW. at 777.

         ‘9See Babb, 290 S.W. at 737.38 (and citations therein).

          20Reimbursing an officer’s or employee’s legal fees also raises concerns under article III, sections 50,5 1, and
52 of the Texas Constitution.  But see supra notes 6 and 7 and accompanying text.

          2’Like article III, section 52 of the Texas Constitution, and other sections, article III, section 53 was “intended
to prevent the gratuitous grant of public funds to or for private persons or purposes.” Devon Y. City ofSan Antonio, 443
S.W.2d 598, 600 (Tex. Civ. App.--Waco 1969, writ refd).

                                                               p.   2770
The Honorable Judith Zaffirini         - Page 6           (DM-488)




time the services, on which the determination of merit was to be based, were rendered.” We think
Attorney General Opinion H-402 is particularly instructive with respect to your question. This offtce
there considered whether a commissioners court may approve back pay for an employee who was
suspended because he had been indicted, but who was then exonerated and reinstated to his county
employment. ” After the employee was reinstated, the commissioners court adopted a policy
permitting the county to reinstate with back pay an employee who had been suspended because of
an indictment and then exonerated.24 But because the county had no such policy at the time this
particular employee was suspended and reinstated, this office concluded that the county could not
now “back pay” the employee the wages he would have earned while he was suspended:25 “To
award back pay to a reinstated employee in the situation you describe when he is not entitled to it
under the terms ofhis employment” (emphasis added) contravenes article III, section 53, the opinion
concludes.26    In our opinion among the terms of a public officer’s or employee’s office or
employment is the common-law possibility of receiving, in certain circumstances, reimbursement
 horn the employing governmental body for legal fees.” (We assume the employing governmental
body had not adopted a policy forbidding it to reimburse an officer’s or employee’s legal fees.)

         We think it is appropriate here to answer your eighth question: whether our conclusion
depends upon the fact that the chief appraiser indicted ultimately was acquitted. As we suggested
above, that fact does not affect our conclusion.     Rather, the relevant determinations under the
common law are whether paying for the legal representation serves a public, not purely private,
interest and whether the conduct that was the basis of the legal action was taken in good faith and
was within the scope of an official duty.

        Your second question asks whether, if we conclude that the appraisal district’s board may
not vote to reimburse Mr. Warren’s attorney fees, the appraisal district or any other governing body
may adopt a policy that the governing body will “assume liability for, and        pay    attorney fees
incurred in defending” an officer or employee ofthe appraisal district, including the appraisal review


         2*See Attorney General Opinion SM.1253 (1990) at 2-3. Cf Doutbit v. Ector Cou&, 740 S.W.Zd 16,18 (Tex.
App..-El Paso 1987, writ denied) (finding certain compensation or benefits constitutional under article III, section 53);
CiiyofOrange v. Chance, 325 S.W.2d 838,840 (Tex. Civ. App..-Beaumont       1959, no writ) (same); City of WichitaFalh
v. Car, 300 S.W.2d 317, 321 (Tex. Civ. App.--Fort Worth 1957, writ refd n.r.e.) (same); Attorney General Opinion
DM-129 (1992) at 2-3 (same); Attorney General Opinion H-51 (1973) at 3 (same).

         “See Attorney   General Opinion H-402 (1974) at 1

         “See id. at 2

         “‘See id.

         “See Id. at 4

         2’As we have discovered, the common law authorizes a governmental          body to reimburse an officer’s or
employee’s legal expenses in certain circumstances.    Attorney General Opinion H-402, by contrast, discusses awarding
back pay to an employee for the period during which the employee was suspended. We know ofno common-law right
to back pay in the situation described in that opinion. Consequently, a county policy was necessary before the county
could award back pay.


                                                           p.   2771
The Honorable    Judith Zaffirini   - Page 7         (DM-488)




board, against civil or criminal claims.     We have concluded that the board may reimburse
Mr. Warren’s attorney fees, so long as the board makes the determinations     we have listed.
Accordingly, we will not address the particular policy you set out.

         You ask third whether a policy standardizing the payment of attorney fees is a necessary
prerequisite to the payment of attorney fees or whether the district board may make a determination
to pay attorney fees in each particular case. As we have stated, the policy is unnecessary. Moreover,
as we have suggested, the board, if it is to pay attorney fees at all, must make a case-by-case
determination, considering the issues we have listed above. Nothing, of course, requires an appraisal
district to pay an officer’s or employee’s attorney fees in any case?8

         Fourth, you ask whether an agreement to pay attorney fees in a civil case may be
distinguished from an agreement to pay fees in a criminal action. Generally, the common law
distinguishes less between civil and criminal actions than between actions premised upon an officer’s
conduct within the scope of official duties and actions premised upon conduct beyond the bounds
of official duties.2” Nevertheless, an agreement to pay attorney fees in a civil action that comes
within Civil Practice & Remedies Code chapters 101 or 102 is, we believe, governed by those
chapters. Here, for instance, Civil Practice&Remedies     Code sections 102.002(c)(l) and 102.004(a)
would preclude the appraisal district from providing an attorney for Mr. Vernon if the landowners
sued him for damages caused by the alleged official misconduct. Because the action was a criminal
prosecution, however, Civil Practice and Remedies Code chapter 102 is inapplicable, and the
common-law rule applies.

       Fifth, you ask whether the appraisal district may pay attorney fees that accrue before the
board adopts a policy. Again, we have concluded that a policy is unnecessary. Accordingly, we
need not address this question further.

        You ask sixth whether the appraisal district board may reimburse an officer or employee who
incurred and paid attorney fees purportedly covered by the policy. Because we have concluded that
a policy is unnecessary, we need not address this question further.

        Finally, we understand you to ask whether the board may pay Mr. Warren’s attorney fees
although he is no longer employed by the board. We do not think the fact that Mr. Warren is no
longer a district employee makes any difference. Rather, in our opinion, the important fact is that
the conduct for which Mr. Warren was brought to court occurred while he was the appraisal district’s
chief appraiser.




        ‘*SeeAttorney General Opinion JM-1276 (1990) at 11

         Tt is more common in the criminal context, however,    for a governmental   body to fmd that an officer’s   01
employee’s conduct is beyond the scope of official duties.


                                                      p.   2772
The Honorable Judith Zaffirini   - Page 8        (DM-488)




                                        SUMMARY

                The board of directors of an appraisal district may reimburse its chief
           appraiser’s attorney fees if it is authorized to do so by statute or under the
           common law. An appraisal district is not statutorily authorized to reimburse
           its chief appraiser’s legal fees if the chief appraiser is indicted for official
           misconduct for an alleged failure to properly notify taxpayers of a change in
           use in their land. On the other hand, no statute forbids an appraisal district
           to reimburse the chief appraiser’s legal fees.

                The common law permits an appraisal district to reimburse an officer’s
           or employee’s legal fees (1) if the board determines that paying for the legal
           representation serves a public interest, not just the officer’s or employee’s
           private interest; and (2) if the board determines that the officer or employee
           committed the alleged act or omission that was the basis of the suit in good
           faith and within the scope of his or her official duties. Whether the chief
           appraiser ultimately prevailed in the action is irrelevant to the board’s
           decision to pay attorney fees. To the extent they are inconsistent with this
           conclusion, Attorney General Opinion DM-107 (1992) and Letter Opinion
           Nos. 97.065 (1997), 97-049 (1997) and 90-93 (1990) are overruled.

               An appraisal district board of directors need not adopt a policy regarding
           the payment of officers’ and employees’ legal expenses before it may agree
           to pay the expenses as they accrue.

                An appraisal district’s common-law authority to pay an officer’s or
           employee’s attorney fees may be limited by statute. For instance, Civil
           Practice and Remedies Code chapters 101 or 102 may regulate the appraisal
           district’s payment of attorney fees in certain civil actions.

                The fact that an officer or employee who is being sued or the subject of
           a criminal action for conduct that allegedly occurred during the course of the




                                                   p. 2773
The Honorable Judith Zaftirini     - Page 9      (~~-488)




           officer’s or employee’s work for the appraisal district is no longer an officer
           or employee of the district is irrelevant to the board’s consideration of
           whether it will pay attorney fees.




                                              DAN     MORALES
                                              Attorney General of Texas

JORGE VEGA
First Assistant Attorney General

SARAH J. SHIRLEY
Chair, Opinion Committee

Prepared by Kymberly K. Oltrogge
Assistant Attorney General




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