                              QBffice    of the 9lttornep  QBeneral
                                           &ate of QtZexae
DAN MORALES                                  htnlaty 29,1997
 ATTORNEY
       GENERAL

   The Honorable James Warren Smith, Jr.              Opinion No. DM-43 1
   Frio County Attorney
   500 East San Antonio, Box 1                        Be: wttethex a county is authorized to reimburse
   Pear& Texas 78061-3100                             attorney’s fees incuo-ed in defending an election
                                                      contest suit to a candidate for a political party’s
                                                      nomination for sheriff (RQ-9 14)

   Dear Mr. smith

            You ask whether Frio County (the “county”) is authorized to reimburse the sheriff for
   attorney’s foes he incurred in defending an election contest suit. You explain that the incumbent
   .&uWhad aeverd opponents in the March 1996 Democratic Party primary election and “was forced
   into a [r]un-[o]ff [e]lection in April, 1996.” The victor of the runoff election was to run unopposed
   in the November 1996 general election. The incumbent she.ritFprevailed over his opponent by 168
   votes. The opponent 6led an election contest against the sheriff. The sherifF was represented by
   private counsel and you represented the county clerk as an %nnamed defbndant/contestee.” The
   lawsuit was resolved in favor of the incumbent sheri& but the court explicitly retused to award
   attorne$s&estotheprev&igparty.           Theshaitfsattomeyhasnowprwentedaclaimtothecounty
   on behalf of the sheriff seeking reimbursement for his attorney’s fees in the election contest suit.

            We agree with your analysis tbat none of the statutes you mention requires the county to
   reimburse the sheriff for his attorney’s fees in the election contest1 Moreover, we believe that the
   county is prohibii from doii so by the Texas Constitution, see Tar Const. art. III, $8 50,51,52,
   which limits the suthotity of a govemmental entity to employ counsel to situations where kz@mate
   interests ofthegovenrmental entity, not just the personal interests of an officer or employee, require
   assertionofaiegafdefbnse.       AttomeyGeneralOpinionDM-107(1992)at3.             Asageneralrnatter,
   the nature of the interests at stake involves questions of fad and therefore this o&e usually defers
   tothegovernmentalentitytodecideinthefintinstance~~the~atisrrueinaparticular
   lawsuit concum the interests of the governmental entity or whether the expenditure of public fimds
   would only benefit the officer or employee. Id. at 4. For the reasons stated below, however, we
The Honorable James Warren Smith, Jr. - Page 2 (un-43 1)




believe eMion contea& involve persod intea& of the candidate, not interests of the govemmentsl
entity or the public interest. and that a governmental entity will always be precluded tlom paying for
the attorney’s fees of an official in an election contest, or reimbursing an official for such attorney’s
fees, as a matter of law.

         In Attorney General Opiion JA4-685, this office considered whether a school district was
autbonzedto~publicfiudstodefadaschwlboardmemberinanelectionwntestsuit.                           This
office cowluded that the election contest against the succemful school board member candidate did
not involve the k&mate inter& ofthe school board. First, the opinion noted, a succes&l candidate
whoisthesubjedofanelectioncontesttakesoffi~andis~ltledtooccu~theoffi~pendiogtbe
resolution of the suit. See Attorney General opinion JM-685 (1987) at 2-3 (citing Elec. Code
8 221.015). Thu&re, the election contest did not atEct the abiity of the school board to convene
a quorum or otherwise conduct its business. Second, and more importantly, this office opined that
“[t]heeledioncontestin~caseistbelaststepoftheprocessbywhichanindividualestablishesthat
hehasbeenelectedtntstee.      Itisdiflicuhtojustayonamlgrolmdsaschooldistrict’sfihancialsupport
of one contender in an election contest. The courts of other states have held that an individual
oIIicer’s legal ~cpenscs in an election contest may not be paid gem public funds.” Id. at 4; see aho
id. at 4-5 (citing cam from other jurisdictions).

        AlthoughwehavefbundnoTerrascasedire#lyonpoint,Chundlerv.               Saenr, 315 S.W.2d87
(Ten. Civ. App.-San Antonio 1958, writ re.fd n.r.e.), also recognizes this principle. In allowing the
caycounciltousecityfundstopayattomey’s~inthedefiaseofasuitdigputingtheproperstatute
governing the election of city 05ceq the court stat& “This is not an election contest between
parties as individuals, but a suit for injunction against the governing body of said city, the e-t&t of
which would be to disqualify and remove t?om 05ce a majority of the city aldermsn and thereby
disrupt the lawtbl functions of the city council.” Id. at 89-90.

         Here, as in &tomey General Opinion Jh4-685, tlx argwats for the position that the eIection
colltest~~legitimatcinterestsofthecouotya9oppoaedtotbesheriffspasoaalintaestsasa
csnd&tetiJro5cesrenot        persuasive and thus tdthtdy support our conclusion that re&bumement
of 05cials for attorney’s fees incurred in election contests from public funds is impermGile as a
matteroflaw. Inhisletterrequestingreimb               t flom the county, the sheritTs attorney suggests
thatthesheriff,asanioarmbentwhohadbeen”reeleded”bythevotersinthenmoff,was”obIiged”
to defend his position. As Attorney Oened Opiion JM-685 suggests, however, an election contest
of a primary election or runoff is the last step of the process by which an individusl rum for party
nomination and establishes that he is the party nominee. The sheriffwas no more legally obliged to
defend the election contest than he was to run for election or reelection, and the election contest did
not involve interests of the sheriffas a county 05cial but rather as a candidate for 05ce.

         The sherifTs attomey also argues tbat the election contest involved legitimate interests of the
county because the contestant attacked the county clerk, election supervisor, and other county
officials. These individuals were not parties to the suit and there was no possibility of a judgment
against them or the wunty. Furthermore, we note that you tiled an answer on behalf of the county




                                              p.   2407
The Honorable James Warren Smith, Jr. - Page 3             (DM-43 1)




clerk as an “utmamed defendant/wnte&ee” and there-fore appear to have represented any interests
ofthewuntyinthesuit.

         Finally, the argument that the sh&s        sucwssfbl defense of the suit saved the wunty the
expense of holding a new runoff election must fail. In any election contest, it is the interest of the
authotity holding the election that justice be served, not that one candidate prevail over another. In
this case, as in all others, it would have served the electorate’s interests, and thus county’s interests,
to hold a new runoff election ifthe wurt had found a basis to void the contested election.2



                A wunty is prohibited lkxn reimbursing a candidate for a political party’s
            nomination for sherifF for attorney’s fees iwurred in defending sn election
            contest suit. See Tex. Const. art. III, $8 50.51.52.




                                                          DAN MORALES
                                                          Attorney General of Texas

JORGE VEGA
First Assistant Attorney General

SARAH I. SHIRLEY
Chair, Opiion Committee

Prepared by Mary R Crouter
Asaktant Attorney General




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