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                  THE    ATTORNEY    GENERAL
                            OF TEXAS

                             'October21, 1988


                                               _

      Honorable Carl A. Parker    opinion No.      JM-968
      Chairman
      Education Committee         Re: Authority of a school dis-
      Texas State Senate          trict to expend funds to defend
      P. 0. Box 12068             a trustee in an action alleging
      Austin, Texas 78711         an intentional tort (RQ-1542)
      Dear Senator Parker:
           You ask our opinion on the following question:
                 May   an   independent   school   district
              lawfully expend funds for attorney's fees for
              defense of a trustee in a civil suit alleging
              an intentional tort against the trustee?
      You furnish the following statement   of facts in support   of
      your question:
                 Circumstances exist in the Huffman I.S.D.
              whereby a trustee became embroiled in a
              difference of opinion with a teacher.     The
              teacher has alleged sexual harassment and in
              retaliation of the complaints one trustee has
              voted against renewal of her contract.    Two
              lawsuits have been filed, one against the
              school district alleging various civil rights
              violations, and a private lawsuit by the
              former teacher against a trustee alleging an
              intentional tort taking place in the parking
              lot of the school district following a school
              board meeting.
                 Apparently, the school board of trustees
              has undertaken to provide legal counsel for
              the trustee in defense of the civil suit
              alleging the intentional tort. The trustee
              has signed a letter of agreement agreeing to
              reimburse the district in the event it is
              determined that payments for attorney's fees
              in his behalf are not proper.



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Honorable Carl A. Parker - Page 2   (JM-968)




     An independent school district may retain and pay
attorneys to protect its interests in a lawsuit, even though
the suit is brought against an individual officer or
employee of the district.    Educ. Code 5 23.26: Attorney
General Opinion JM-685 (1987); Attorney General Opinion.H-70
(1973); see Stewart v. Newton Indenendent School District,
134 S.W.Zd 429 (Tex. Civ. App. - Beaumont 1939, no 'writ);
c,
 a d'n v           v' e                                   51
S.W.2d 826 .(Tex. Civ. App. - San Antonio 1932, writ
dism'd): Arrinaton v. Jones, 191 S.W. 361 (Tex. Civ. App. -
Texarkana 1917, no writ).
     The authority of the district to employ attorneys is
limited to those situations where the legitimate interests
of the district, and not merely the personal interests of
the officer, require the assertion of a vigorous legal
defense on behalf of the public interest. Attorney General
Opinions JM-824, JM-685 (1987); H-70 (1973); M           Tex.
Const. art. III, 59 50, 51, 52; State v. Aver111 110 S.W.2d
1173 (Tex. Civ. App. - San Antonio 1937, writ re;'d) ; Graves
8 Ho&hens   v. Diamond Hill I denendent School District, 243
S.W. 638 (Tex. Civ. ADD. - F&t Worth 1922. no writ). See
ah9’ Citv of C rsicana--v. Babb 290 S.W. 736 (Tex. -Co-%
App. 1927, jud&ent adopted): Citv    f Del Rio . Lowe, 111
S.W.2d 1208 (Tex. Civ. APP. - San ktonio 1937), m'd        on
other arounds, 122 S.W.Zd 191 (Tex. 1938); Citv National
Dank of Austin v. Presidio County, 26 S.W. 775 (Tex. Civ.
APP. 1894, no writ); Attorney General Opinions NW-252,
NW-157 (1980); H-887 (1976); H-544 (1975); WW-1464 (1962);
Letter Advisory No. 24 (1973).
     Thus, the question of the lawfulness of expending
public funds to protect the public interest in a suit
brought against the officer of a school district will always
be a question of fact.       Attorney General Opinion JM-824
(1987). The question which the trustees of the district
must decide is whether or not the suit really involves the
interests of the school district   or whether the expenditure
of taxpayer funds will accrue solely to the personal benefit
of the officer. This office does not make determinations of
fact in the process of issuing legal opinions:           that
responsibility in this kind of question must rest with the
judgment of a majority of the disinterested members of the
school board. &&
     We emphasize that in making such a decision, the
trustees do not have to conclude absolutely in advance that
the officer sued is blameless, or that the suit ultimately
will be defeated.   &&   The trustees need only use their



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Honorable Carl A. Parker - Page 3   (JM-968)




best judgment to determine based on the information before
them that the actions of the officer were undertaken in good
faith within the scope of an official duty. L      See al Q
Attorney General Opinion M-726 (1970). Even when a lawsu:t
contains allegations that seem to place the actions of, .the
officer outside the scope of official -du~ties,a defense at
public expense may still be proper.  Such an issue can only
be decided at the trial of the case:     standing alone,  an
allegation does not prevent the school board from. providing
for the defense of an officer.     Attorney General Opinion
JM-824 (1987); See. e.a., Citv of Del Rio, sunra; see also
Attorney General Opinions JR-755 (1987); H-887 (1976); H-544
(1975).
     Your request letter indicates that you are concerned
particularly about    the application    of these    general
principles to.a situation involving the defense with public
funds of an officer alleged to have committed an intentional
tort. The general principles discussed. above have been
applied by the courts to permit the defense of a public
officer or employee at      taxpayer expense in     criminal
prosecutions.   Citv   f C rsicana       Babb, suora;    Es
aenerally Annot., 130 :.L.R: 736 (194;;.
                       SUMMARY
           A school district may expend public funds
        for the defense of a school trustee in a
        private lawsuit alleging an intentional tort
        if a majority of the disinterested members of
        the school    board   make   a   good   faith
        determination that a defense of the action is
        in the public interest.    A school district
        may not expend public funds to represent the
        purely personal interests of an individual
        trustee.



                                   ~$g$+h
                                    Attorney General of Texas
i¶ARY KELLER
First Assistant Attorney General




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Honorable Carl A. Parker - Page 4    (JM-968)




mu MCCRBARY
Executive Assistant Attorney General
JUDGE ZOLLIE STEAXLBY
Special Assistant Attorney General    -. ".
RICK GILPIN
Chairman, Opinion Committee
Prepared by D. R. Bustion, II
Assistant Attorney General




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