                        The Attorney               General of Texas
                                         October    0.   1080,
MARK WHITE
Attorney General


                   Honorable Tom Curtis                      Opinion No.    ~+252
                   District Attorney
                   47th Judicial District                    Re: Authority of county to pay
                   Amarillo, Texas 79101                     court costs incurred by a district
                                                             attorney

                   Dear Mr. Curtis:

                           You ask whether Potter County has authority to pay court costs for
                   the transcript, statement     of facts, and filiq fee adjudged against the
                   district attorney of the 47th Judicial District in Southwestern Newspapers
                   Corporation v. Curtis, 584 S.W. 2d 362 (Tex. Civ. App. - Amarillo 1979, no
                   writ), and filing fees advanced by him in the related case, Curtis
                   588 S.W. 2d 687 (Tex. Civ. App. - Amarillo 1979, no writ). The suit srose
                   out of the district attorney’s decision to deny a particular newspaper access
                   to official news sources in his office without an appointment. -See Attorney
                   General Opinion MW-158 (1980).

                          Several opinions of this office have considered whether a governing
                   body has authority to hire attorneys to defend public officials or employees
                   against suits arising out of their public duties.     See Attorney General
                   Opinions H-887 (1976); H-544 (1975); H-70 (1973). Wexlieve      the standards
                   articulated in these opinions also govern whether court costs and filing fees
                   may be paid

                           Attorney General Opinion H-70 (1973) concerned the purchase at public
                   expense of liability ilrrurance to protect school trustees against the costs of
                   litigation growing out of the discharge of their official duties. The opinion
                   stated as follows:

                                    Where a Texas governing body believes in good
                                faith that the public interest is at stake, even
                                though an officer       is sued indivi&ally,    it is
                                permissible for the body to employ attorneys to
                                defend the action.. . . The propriety of such a step
                                is not made dependent upon the outcome of the
                                litigation, but r.g~onthe bona fide6 of the governing
                                body’s motive.




                                                   p. 793
Honorable Tom Curtis     - Page Two      @M-252)




      This rationale was followed in Attorney General Opinion H-544 (1975) which
determined that the commissioners court may pay the legal expenses of a judge in
defending a lawsuit which arose out of his conducting a court of inquiry. Although the
county was not obligated to pay such expenses, it could do so if it determined it was in
the county’s interest to pay them. Attorney General Opinion H-887 (1976) stated that a
general law city could hire an attorney to defend a city official or employee against
lawsuits arising out of actions taken within the scope of his public duties.

       In Letter Advisory No. 24 (19731, this office considered the constitutionality  of
article 332c, V.T.C.S., then pending legislation. This statute provides for the defense
of county officials and employees by district or county attorneys or by county-paid
private counsel, in certain lawsuits brought against them by non-political entities. The
letter advisory found the statute constitutional     if limited “to those circumstances
where the interest of the county, not in confiict with those of the state, are at stake,
and where there is a good faith showing that the individual sued was acting within the
scope of his authority in the performance of public duties.”

       We believe the county may pay the costs you inquire about if it reasonably
believes its interest is at stake, and if the district attorney sued was acting within the
scope of his authority in the performance of public duties. If this showing is made, we
believe the county would have implied authority to pay these expenses under article
332a, V.T.C.S., which authorizes the county to pay the expenses incident to the
operation of the district attorney’s office.       Whether the action giving rise to the
lawsuits was within the scope of the district attorney’s authority is a fact question
which cannot be resolved in the opinion process. See Attorney General Opinion H-887
(1976). The county must resolve this in accordancewith        the guidelines set forth in this
opinion. Of course, it is possible that some or all of these fact questions may be
addressed by the trial court when it considers the case on remand.

        You also ask whether the county is required by law to pay these court costs or
filing fees. We find no statute which requires the county to pay these expenses.
Although article 332c, V.T.C.S., requires that legal representation       be provided for
county officials or employees sued by a non-political entity, this statute &es not apply
to district offices.   See Attorney General Opinion H-656 (1975) (district attorney is
district, not county, o??%er).

       You finally ask whether the State of Texas is required by law to pay the court
costs and filing fees incurred by the district attorney.     Article 6252-26, V.T.C.S.,
makes the state liable for actual damages, court costs and attorney fees adjudged
against officers or employees of any agency, institution or department of the state. It
is unnecessary to determine if article 6252-26 would apply in the case of a suit against
a district attorney, since the state has no liability unless the Attorney General has
been given an opportunity to &fend the suit as required by section 3 thereof. No such
request was made here. Consequently, article 6252-26 does not entitle him to court
costs.




                                         p.   794
.    .
-.   .


         Honorable Tom Curtis   - Page Three     (MI-2521




                                            SU MMAR’Y

                        Potter County has the authority to pay court costs adjudged
                    against the district attorney and filing fees advanced by him in
                    connection with a lawsuit against him if the county reasonably
                    believes its interest is at stake and if the lawsuit arose out of
                    actions taken by the district attorney in the performance of his
                    public duties. Neither the county nor the state is required by
                    law to pay the district attorney’s court costs and filing fees.




                                                     MARK      WHITE
                                                     Attorney General of Texas

         JOHN W. FAINTER, JR.
         First Assistant Attorney General

         RICHARD E. GRAY III
         Executive Assistant Attorney General

         Prepared by Susan Garrison
         Assistant Attorney General

         APPROVED:
         OPINION COMMlTTEE

         Susan Garrison, Acting Chairman
         Jon Bible
         Walter Davis
         Risk Gilpin
         Bruce Youngblood




                                                p. 795
