              THE       .ATTI-R~~~~~ESERAL
                                   A

                              February   19, 1987




Honorable Mike Driscoll                     Opinion No. JM-633
Aarris County Attorney
1001 Preston, Suite 634                     Re:    Whether the Earris    County
Eouston,   Texas     77002                  Attorney  is authorized or required
                                            to represent or advise the sheriff
                                            in certain cases

Dear Mr. Driscoll:

      You advise this office   that the following    questions    have been
prompted by the Rarris     County Sheriff’s   Department Civil       Service
CoomIssion seeking advice from your office       regarding    its  official
duties and a case pending before it.

                1. Is the Barris County Attorney  authorized or
            required  to advise members of the Barris County
            Sheriff’s  Department Civil   Service Commission in
            regard to their official  duties?

                2. Is the Earris County Attorney required    to
            advise   the Earris  County Sheriff’s  Department
            Civil   Service  Commission in regard   to   cases
            pending before it?

                3.   Is the Bards County Attorney authorized or
            required    to represent  the sheriff   at hearings
            before    the Harris   County Sheriff’s   Department
            Civil Service Commission?

      The Earris County Sheriff’s         Department Civil      Service Cormnfssion
was created pursuant to article          2372h-8, V.T.C.S.       The commission is
composed of three members having the authority            to “make. publish.        and
enforce    rules” relating       to personnel    matters within       the sheriff’s
department.      See V.T.C.S.     art. 2372h-8, 554, 6(a).        Consequently,      we
conclude    thatthe      Rarris County Sheriff’s       Department Civil        Service
Cmission      is an administrative      agency of the county.        Its powers are
those   expressly     granted     by the legislature,       together     with those
necessarily     implied from the authority        conferred    or duties    imposed.
See
-    Stauffer    V. City  of   San Antonio,  344  S.W.2d   158  (Tex.   1961).




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        Moreover, it     is apparent from the reading of the statute          that
each member is a “public       official”      of Barris County.    The members, as
individuals      and as a body, exercise      a sovereign function of goveroment
far the benefit       of the oublic largely independent of others’ control.
See Aldine Iodependent’School            District   v: Standley.   280 S.W.2d 570
(Tcx.     1955);   see also Northwestern National          Life Insurance Co. V.
Black, 383 S.W.2d 806 (Tax. Civ. App. - Texarkaoa 1964. writ rcf’d
n.r.e.‘).     Once an individual       is aovointed     to the commission,  he is
entitled     to serve a two year term ‘independent          of the control of the
sheriff    or other appointing officials.         V.T.C.S. art. 2372h-8, 04(b).

       Tou first    ask whether the Rarris County Attorney Is authorized or
required    to advise members of the commission in regards         to their
official    duties.     We believe  that the county attorney   is required.
under section     41.007 of the Government Code, to give written advice,
(upon request)      to members of the commission.  -See Govt. Code 541.007.
      Section   41.007   provides       in part:

                 A district    or county attorney,         on request,
            shall give to a county or precinct        official   of his
            district    or county a written      opinion or written
            advice    relating   to the official      duties   of that
            official.      (Emphasis added).

Govt. Code 141.007.   Consequently,  section                  41.007 is dlspositive      of
your first question  requiring   the county                  attorney  to give written
advice  to members of the commission in                     regard to their     official
duties.

       IO your second question you ask vhether the county attorney is
required    to advise the commission in regard to cases pending before
it.    We understand that the word “case” refers        to a disciplinary     or
grievance     proceeding    before    the commissioo.     See Earris     County
Sheriff’s    Department Civil Service Regulations.     Rules 12. 13 (1982).
In these administrative      proceedings  before the commisslon. the sheriff
is ao adverse        party  to the employee instituting        the appropriate
proceeding.      See Id. Rule 2.22 (Defioitioo    of Hearing).    This poses a
possible    conflict   between the county attorney’s   duty to represent the
sheriff   and his duty to advise the commissioo.

      Article    V.   section     21,    of   the   Texas    Constitution     provides   in
pertioaot    part:

                A county attorney,   for counties   in which there
             is not a resident     criminal   district    attorney.
             shall be elected  by the qualified     voters of each
             county, who shall be commissioned by the Governor,
             and hold his office   for the term of four years.




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    gooorable   Mike Driscoll     - Page 3       (JM-633)




                In case of vacancy the comissiooers              court of the
                county shall have the power to appoint a county
                attorney    until    the oext general         election.      The
                county attorneys shall represent            the state lo all
                cases in the district      and inferior       courts in their
                respective     counties;   but if any county shall be
                included in a district        In which there shall be a
                district     attorney,     the    respective        duties     of
                district    attorneys    and county attorneys          shall in
                such counties       be regulated      by the legislature.
                l’he legislature      may provide     for    the election      of
                district    attorneys    in such districts,          as may be
                deemed necessary.        and make provision            for   the
                compensation      of district      attorneys       and county
                attorneys.      District   attorreys      shall hold office
                for    a term of four          years,      and until       their
                succeesors     have qualified.        As amended Nov. 2,
                1954.

           Bards  County is       ooe of the counties     having both a county
    attorney and a district      attorney.  ‘fhus. the legislature is authorized
    to regulate the duties       of the county attorney in Harris County.     ‘fhe
    legislature  has defined     the duties of the Harris County Attorney.

                    It is the primary duty of the county attorney
                                         . .
                in Ear&3 County or nis assistants         to- represent
                the state,    Rarrls County, sod the officials        of
                Fiarris County lo all civil    matters pending before
                the courts of Harris County and any other courts
                in which the state,     the county, or the officials
                of the county have matters pending.          The county
                attorney shall represent     the Harris County Flood
                Control   District   and perform the other duties
                Imposed by this     section   without  any additional
                fee, compensation, or prerequisite     other thao that
                paid by Harris County out of its officers’       salary
                fund.   (Emphasis added).

    Govt.   Code 145.201.

          You have informed us that the sheriff      often requests the advice
    of the county attorney regarding the future or prior termination of an
    employee who may appeal or has appealed his dismissal          to the com-
    mission.   At the same time, the commission may seek advice regarding
    its statutory   powers and duties and how these pavers may be exercised
    in a particular   case.  The conflict   may,also arise when the comsission
    may seek advice where the sheriff     disagrees with Its ruling.




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Eooorable   Mike Driscoll    - Page 4      (JM-633)




      Section 45.201 of the Government Code gives the county attorney
authority   to represent the sheriff   in court.   The provisions  also give
the county attorney      the authority    to represent   the co~lssloo    -in
court.

      IO Hill v. Texas Water Quality Board, 568 S.W.Zd 738 (Ter. Civ.
APP. - Austin 1978. writ ref’d      o.r.e.),     the court in addressing    the
authority     vested in the Attorney General of Texas under the Texas
Constitution,       article IV, section      22,   and county    and district
attorneys under the Texas Constitution , article       V, section 21 stated:

                Thus, either      the Attorney General or a county
            or district    attorney     may represent the State in a
            particular     situatioo,      but these       are the    only
            choices,    whichever official        represents   the State
            exercises     exclusive      authority     and If    services
            of other     lawyers     are utilized,        they must be
            ‘lo subordination’        to his authority.         (Emphasis
            supplied).

       IO Attorney     Geoeral Opinion J’M-28 (1983).   after citing    Hill v.
Texas Water Quality Board vith approval for the foregoing proposition.
the matter        of   the   attorney   general representing    parties     with
conflicting     interests   was addressed:

                You also ask whether the .attorney           general is
            prohibited     from representing      the office      of the
            public utility      counsel in court where the Public
            utility     colmsission*    also    represented      by    the
            attorney    general.    is ao adverse party.         We have
            been unable to find a coostitutlooal               provision
            which would prevent         the attorney     general     from
            representing     opposing parties     In a lawsuit.        The
            attorney     general   has a duty under article            IV,
            section    22, to represent     the state in the supreme
            court.     Where two state agencies are 00 opposfte
            sides    of a lavsuit,        the attorney      general     is
            required to represent both agencies.            IO at least
            one case. the attorney geoeral and three assistant
            attorneys     general were counsel of record         for one
            agency. while another assistant          attorney     general
            was counsel       of record    for the opposing        party.
            Texas National Guard Armory Board v. McCrav. 126
            S.W.Zd 627 (Tex. 1939).

                . . . .

                Article  6252-26,  V.T.C.S.,    authorizes   the
            attorney general to defend officers    and employees




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            of the state against certain    kinds of lawsuits
            arisiog out of acts or omissions by that person in
            the scope of his office   or employment.   Section
            3(a) of article 6252-26 provides in part:

                     It is not a conflict      of interest   for the
               attorney    geoeral to defend a person or estate
               under this Act and also to prosecute          a legal
               action against that person or estate as may be
               required     or authorized   by law if      differeot
               assistant     attorneys general     are assigned    the
               responsibility     for each action.

            Thus,    while    the attorney    general  defends    an
            individual    for actions undertaken within the scope
            of his state office      or employment, he may at the
            same time sue that person.       as long as different
            assistant    attorneys general are assigned to each
            action.

       We have been unable to find a constftutiooal            provision    which
would prevent the county attorney from representing         any of the parties
falling    within the ambit of his responsibilities       heretofore   outlined.
Thus *   the   fact  that  the Rarris  County   Sheriff's     Department    Civil
Service Commissiou may be in an adverse positioo          to a party appearing
before    the commission does not relieve      the county attorney        of his
obligation     to advise the commission in regard to cases pending before
it.

        In the lveot that it      is deemed advisable   to employ private
counsel,    we find the opinion in Driscoll     v. Earris County Commis-
sioners Court, 680 S.W.2d 569 (Tex. App. - Houston 114th Dist.]      1984,
writ ref'd    0.r.e.)     to be controlling. After recognizing   the duty
imposed on the Harris County Attorney to represent Harris County, its
offices    and officials,     the court held the employment of private
counsel must be in accordance with article         2371~. V.T.C.S.. which
states that

            special    couosel   shall be named      by the county
            attorney    . . . and such employment     shall be made
            for such     time and on such terms      as said county
            attorney   . . . may deem proper         and expedient
            subject    to the approval    of  the      commissioners
            court.

       You ask vhether    the Earris County Attorney      is authorized  or
required to represent the sheriff     at hearings before the Harris County
Sheriff's     Department Civil Service Commissioo.     As noted above,  the
county    attorney has the primary duty to




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Eonorable   Mike Driscoll   - Page 6      (JM-633)




            represent      the    state,  Aarris   County,  and the
            officials     of Rarris County in all civil      matters
            pending before the courts of Earris County aod any
            other courts       in which the state,    the county,  or
            the officials      of the county have matters pending.

Govt. Code 145.201.       It would appear that the county attorney is only
required    to represent     an official    in a court proceeding.          However,
ve do not believe         that    the county     attorney    is   prohibited    from
representing     the sheriff   before the Earris County Sheriff's        Department
Civil Service C~issioo.            The representation     of a client    in a court
proceeding    may entail     representatioo    and sdvice before       the suit is
actually   instituted   in order to eosure effective        representation    in the
court actioo.

                                   SUMMARY

                The Ranis        County Attorney      is  required    to
            advise  members of         the Rarris    County Sheriff's
            Department      Civil     Service    Commission regarding
            their  official       duties.     The county attorney     is
            also required to advise such c~ssioo             lo regard
            to cases     peoding      before    the commission.      The
            county attorney        may represent    the sheriff    in a
            case pending before the c~ssioo.

                                                Very truly   your
                                                        .

                                             L-L-b
                                                JIM     MATTOX
                                                Attorney General of Texas

JACR EIGRTOWRR
First Assistant Attorney      General

NARYKELLER
Executive Assistant     Attorney   General

RICR GILPIN
Chairmao, Opinion Committee

Prepared by Tom G. Davis
Assistant Attorney General




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