                       April 24. 1987




Bonorable Bill Haley                  Opinion No. JM-685
Chairman
Public Education Committee            Re: Whether a school district may
Texas Aouse of Representatives        expend public funds to defend a
P. 0. Box 2910                        school board member in an election
Austin, Texas   78769                 contest suit

Dear Representative Haley:

     You ask whether a school board nay spend public funds to defend a
school board member in an election contest. You inform us that a
particular candidate was elected to an Independent school board on
April 4, 1985, by a narrow margin of votes.          The unsuccessful
candidate ismediately filed suit in district court to contest the
election. The suit named as defendants the successful candidate, the
president of the school board and the district superintendent. It
sought a temporary restraining order to prevent the seating of the
successful candidate who was seated’ on, or about April 10, 1985. It
also sought an injunction to prevent the destruction of ballots and
other election materials. The suit is still pending, but is inactive
at the present tine.

     Shortly after the successful candidate was seated, the board
instructed its law firm to represent the defendants in the election
contest suit, including the school district. the president of the
board, the superintendent, and the trustee whose election was at issue
in the lawsuit. The law firm has been paid for the legal services
rendered from school district funds expended on the authorization of
the school board. The board is now attempting to obtain reimbursement
from the board member whose election was at issue.

     You ask the folloving questions about this set of facts:

             1. Whether a school district, acting by and
          through its Board of Trustees can choose to expend
          legal funds for legal defense of an asserted
          election contest;

             2. Whether a school district, who has acted by
          and through its Board of Trustees to expend
          district funds for legal expenditures in defending
          a Board of Trustee election contest, has a right



                                 . p. 3171
Honorable Bill Raley - Page 2   (JM-685)




          to later demand reimbursement of said expenditures
          from the Board of Trustee member.

     A school district may retain and pay attorneys to protect its
interests in a law suit. Attorney General Opinion H-70 (1973); see
Stewart v. Newton Independent School District, 134 S.W.2d 429 (Tz
Civ. App. - Beaumont 1939, no writ); Harding v. Raymondville
Independent School District. 51 S.W.2d 826 (Tex. Civ. App. - San
Antonio 1932, writ dism'd); Arrington v. Jones, 191 S.W. 361 (Tex.
Civ. App. - Texarkana 1917, no writ). The school board's authority to
employ attorneys is. however, limited to situations where the
legitimate interests of the district, and not merely the personal
interest of the trustee or trustees, requires representation.
Attorney General Opinion H-70 (1973): see Tex. Const. art. III. 5550.
51. 52; State v. Averill. 110 S.W;2dl73        (Tex. Civ. Aoo.. - San
Antonio 1937, writ ref'd); Graves 6 Routchens vi Diamond Hili'Indepen-
dent School District, 243 S.W. 638 (Tex. Civ. App. - Fort Worth 1922,
no writ). * c also City of Corsicana v. Babb. 290 S.W. 736 (Tex.
Comm'n App. 1927, judgment adopted); City of Del Rio v. Lowe, 111
S.W.2d 1208 (Tex. Civ. App. - San Antonio 1937). rev'd on other
grounds, 122 S.W.2d 191 (Tex. 1938); City National Bank of Austin v.
Presidio County, 26 S.W. 77.5 (Tex. Civ. App. 1894, no writ); Attorney
General Opinions Mb'-252, 157 (1980); R-887 (1976); H-544 (1975);
WW-1464 (1962); Letter Advisory No. 24 (1973).

     Your request letter shows that you are concerned only about the
school board's expenditure to defend the successful candidate in the
election contest, and not about the'expenditure to defend the board as
an entity, its chairman, or the superintendent.         See generally
Attorney General Opinion H-70 (1973). We must consider whether the
election contest suit against  the successful candidate involves the
legitimate interest of the district, and not merely the personal
interest of the individual candidate now seated as a trustee.

     Your request letter indicates that the board authorized defense
of the individual candidate out of concern that it might lack a quorum
to do business. You inform us that two of the seven board members
faced potential election contests. Four of the seven board members
constitute a quorum. You reason as follows:

            Theoretically, should the elections have been
         determined to have been properly contested and
         should there have been a period of time during
         which the seats would have remained vacant
         proximately to the election contest suits, then,
         should one other Board of Trustee member be absent
         from any given Board of Trustee meeting, School
         District business could not be conducted.

At the time of the April 1985 election the board faced important
business relating to investigations of the prior board's handling of


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Honorable Bill Haley - Page 3    (JM-685)




funds.   Thus, the board believed it     needed to   act   swiftly   and
decisively to authorize defense of the lawsuits.

     The above line of reasoning does not demonstrate that the board
reasonably believed that attendance at meetings might drop below four
members or that  payment of the individual member’s legal fees would
alleviate that problem. More important, the board’s concern about its
quorum requirement was entirely unwarranted. Section 221.015 of the
Election Code provides that an office will not be vacant while it is
the subject of a pending election contest suit. This statute provides
in part:

             (a) If the official result of a contested
          election shows that the contestee won,         on
          qualifying as provided by law the contestee is
          entitled to occupy the office after the beginning
          of the term for which the election was held,
          pending the determination of the rightful holder
          of the office.

              .   .   .   .

             (c) If a final judgment declaring the con-
          testant elected is rendered after the beginning of
          the term for which the contested election was
          held, on qualifying as provided by law the
          contestant shall assume office as soon as
          practicable after the judgment becomes final.

             (d) An officeholder under Subsection (a) is
          entitled to the emoluments of the office that
          accrue during the period of occupancy. A con-
          testant who gains the office Is not entitled to
          emoluments for any period before the contestant
          as*umes office.

      Section 221.015 of the Election Code incorporates the common law
 rule that a person who takes office under color of election is a &
 facto officer. See Gonzalez v. Duran, 250 S.W.2d 322 (Tex. Civ. App.
 - San Antonio 19xwrit    ref’d); Forwood v. City of Taylor, 208 S.W.Zd
 670 (Tex. Civ. App. - Austin), reh’g denied, 209 S.W.2d 434 (Tex. Civ.
 APP. - Austin), aff’d, 214 S.W.2d 282 (Tex. 1948). The law will hold
 valid a de facto officer’s exercise of the duties of office to the
 extent that these duties involve the interests of the public and of
 third parties.

      Public officers are presumed to know the law relating to their
 responsibilities. Miller v. State, 53 S.W.2d 838 (Tex. Civ. ADO. -
 Amarillo 1932, writ=.      : Colonial Trust Co. v.‘ Hill County; 27
 S.W.Zd 144, judgment adopted (Tex. mm’n App. 1930). Payment of the



                                p. 3173
Eonorable Bill Haley - Page 4   (JH-685)




individual trustee's expenses was unnecessary to the board's meeting
its quorum requirement.

     It is also suggested that the board should pay for the individual
trustee's legal defense because his election was contested through no
fault of his own. He won the election by a very narrow margin and the
contest apparently relates to the accuracy of the vote count. The
school trustees appoint the election judges, Elec. Code 032.005(a);
therefore, it is argued, the school district should pay the con-
testee's legal expenses in the election contest. We do not believe
this reason justifies the expenditure for legal fees. The school
district is not legally liable to candidates for whatever economic
injury they have sustained through the election judge's performance of
duties. See Civ. Proc. and Rem. Code 01101.026. 101.052; Campbell v.
e.        26S.W.2d   425 (Tex. 1954); Treadaway v. Whitney Independent
School District, 205 S.W.2d 97 (Tex. Civ. App. - Waco 1947. no writ).
See also Jordan v. Norman, 711 S.W.2d 358 (Tex. App. - Beaumont 1986,
no writ).      The school district could not voluntarily assume the
contestee's legal expenses.

     The proposed reasons   for paying for the winning candidate's
defense do not constitute legitimate interests of the school district.
The election contest in this case is the last step of the process by
which an individual establishes that he has been elected trustee. It
is difficult to justify on any grounds a school district's financial
support of one contender in an election contest. The courts of other
states have held that an individual officer's legal expenses in an
election contest may not be paid from public funds. The reasoning in
these cases is helpful in answering your question.

     In Paslay v. Brooks, 17 S.E.2d 865 (S.C. 1941). the Supreme Court
of South Carolina concluded that school trustees could not use school
district funds to pay their legal expenses arising out of contested
elections and other matters concerning their effort to be reelected.
The court stated as follows:

             A school district in its corporate capacity has
          no interest in the success of any individual or
          group of candidates who may run for the office of
          school trustee. There is no authority in this
          State, statutory or otherwise, which empowers
          school trustees to issue warrants covering fees of
          counsel for candidates engaged in a legal contest
          for the office of school trustee. It is not the
          duty of the public to pay for such services; such
          is not a school district purpose, and the tax-
          payers of a school district cannot legally be
          called upon to meet the expenses of such contests
          growing out of school district elections.

Paslay v. Brooks, 17 S.E.2d at 868.



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Honorable Bill Baley - Page 5   (JM-685)




     In Markham v. State, Department of Revenue, 298 So.2d 210 (Fla.
Dist. Ct. App. 1974). a county tax assessor sought a declaration that
his office could lawfully pay the attorneys fees in his successful
defense of an election contest for the office. The court introduced
this question as follows:

             It is a fundamental concept of the law in
          Florida and elsewhere that public funds say not be
          expended for other than public purposes. Public
          officers are, of course, entitled to a defense at
          the expense of the public in a law suit arising
          from the performance of the officer’s official
          duties and while serving a public purpose.
          (Emphasis in original).

Markham v. State, Department of Revenue, 298 So.Zd at 211. It further
stated that the election contest was not against the appellant in his
official capacity, nor did it arise from the discharge of his official
duties or serve a public purpose. Instead,

          [t]he suit was a pure and simple election contest
          relating to the validity of certain absentee
          votes, . . . [H]ad the contestant been successful
          in his attack upon the votes the appellant would
          have ceased to be tax assessor and his opponent
          would have taken office. The office, functions
          and duties of tax assessor would not have been in
          any manner altered. There would simply have been
          another man filling the position.

298 So.2d at 212. The election contest was a personal mattei between
the candidates and no public purpose justified the expenditure of
public funds on it.

     A New Jersey court considered whether the former mayor of
Atlantic City could require the city to pay his legal expenses in his
successful defense of an election contest. Hatthews v. City of
Atlantic City, 481 A.2d 842 (N.J. Super. Ct. Law Div.), aff’d, 482
A.2d 530 (N.J. Super. Ct. App. Div.), petition for cert. denied mem..
491 A.2d 708 (N.J. 1984). The New Jersey court found the reasoning of
the Florida case of Uarkham v. State, Department of Revenue, m.    to
be persuasive. It also noted that plaintiff was not acting in an
official capacity as mayor when any of the relevant events occurred,
and concluded that the city was precluded from paying his legal
expenses.

      We conclude that no school district interest is served by paying
 for the individual trustee’s defense in the election contest at issue.

      You also ask whether the school district has a right to demand
 reimbursement of these expenditures from the individual trustee. In


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Ronorable Bill Haley - Page 6   (Jn-685)




Attorney General Opinion MW-93 (1979), this office considered whether
a school board could seek reimbursement from school board members who
had received unauthorized travel expenses. It concluded that the
board had authority to require reimbursement of illegally paid travel
expenses. The same reasoning applies in the present case. The board
-9    seek reimbursement from the individual on whose behalf
unauthorized payments of legal expenses were made. -   See Educ. Code
523.26(a) (board has power to sue and be sued).

                              SUMMARY

               A school district may expend public funds to
          defend its interests in a lawsuit. but may not do
          so to represent the purely personal interests of
          an individual trustee. The school district has no
          authority to pay the legal expenses of an indivi-
          dual school trustee in defending an election
          contest involving the vote count in his election
          as trustee. A school board which has paid the
          individual trustee's legal expenses in this case
          =Y    seek reimbursement from     the individual
          trustee.




                                    J /?kEx
                                        Very truly your


                                             A
                                        JIM     MATTOX
                                        Attorney General of Texas

JACK RIGHTOWER
First Assistant Attorney General

MARY KELLER
Executive Assistant Attorney General

RICK GILPIN
ChaIrman, Opinion Committee

Prepared by Susan L. Garrison
Assistant Attorney General




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