                                            May 12,1999



The Honorable Michael P. Fleming                 Opinion No. K-0047
Harris County Attorney
1019 Congress, 15th Floor                        Re: Whether the state or a county must reimburse a
Houston, Texas 77002-1700                        state district judge for expenses incurred by the judge
                                                 in defending a mandamus action (RQ-0040)


Dear Mr. Fleming:

         You explain that the judge ofthe 208th District Court retained a private attorney to represent
her in a mandamus action because counsel to the district judges represented another judge in the
action. The judge of the 208th District Court believed that there was a conflict between her interests
and the interests of the other judge. She asserts that she is entitled to have the county pay for her
representation in the action because the representation benetitted all criminal district judges. In light
of this background, you ask whether the state or a county must reimburse a state district judge for
expenses incurred by the judge in defending a mandamus action. We conclude that section 74.141
of the Government Code does not obligate the state to pay for the defense of a state district judge
when the judge retains private counsel without the prior approval of the Attorney General. We also
conclude that a county may, but is not required, to provide a legal defense for a state district judge
in certain circumstances under the common law.

        The brief submitted with yourrequest suggests that the district judge should apply to the state
for reimbursement of her legal expenses based on section 74.141 of the Government Code, which
provides as follows:

                        The attorney general shall defend a state district judge . in
                any action or suit in any court in which the judge is a defendant
                because of his office as judge if the judge requests the attorney
                general’s assistance in the defense of the suit.

TEX. GOV’T CODE     ANN. 5 74.141 (Vernon 1998) (emphasis added). Section 74.141 requires the
Attorney General to defend a state district judge only when thejudge requests the Attorney General’s
assistance. On its face, this provision does not obligate the state to pay for the defense of a state
district judge when the judge retains private counsel without the prior approval of the Attorney
General. And nothing in the legislative history of section 74.141 indicates that it is intended to
obligate the state to pay for the defense of a state district judge when the judge retains private
counsel. See discussion infra pp. 4-5 (legislative history of section 74.141 of the Government
The Honorable       Michael P. Fleming     - Page 2            (JC-0047)




 Code).’ We are not aware of any other statute that would obligate the state to reimburse the district
judge, and in the absence of such a statute we believe that the state is not authorized to make such
 an expenditure. Seegenerally General Appropriations Act, Act of May 25, 1995, 74th Leg., R.S.,
 ch. 1063, art. IX, 5 55, 1995 Tex. Gen. Laws 5242, 6096 (“Where the Attorney General                    is
required by constitutional or statutory provision to represent a. state official.      , no compensation
 shall be paid from any appropriation made in this Act to any other attorney for representing the State
 of Texas in the trial of a civil suit in Constitutional Courts except in those cases where the Attorney
 General consents to such representation           .“); General Appropriations Act, Act of May 29, 1997,
 75th Leg., R.S., ch. 1452, art. IX, 5 59, 1997 Tex. Gen. Laws 5535,6390-91 (same).

        The brief submitted with your request also suggests that the county has no authority under
any circumstances to provide legal representation to a state districtjudge. For the following reasons,
we disagree.

          As noted in the brief submitted with your request, a county is expressly authorized to provide
 legal representation    for county officers and employees in certain circumstances under section
 157.901 of the Local Government Code. A state district judge is not a county officer or employee
 for purposes of that provision, see Tex. Att’y Gen. Op. No. MW-252 (1980) at 2 (concluding that
the statutory predecessor to section 157.901 ofthe Local Government Code did not “apply to district
 offices”), and a county does not have express authority to provide legal representation for district
judges under any other statute. This office has recognized in several opinions, however, that
political subdivisions have common-law authority to employ counsel to provide legal representation
 for their officers and employees and, with respect to counties, that section 157.901 does not supplant
the common-law rule. See Tex. Att’y Gen. Op. Nos. JM-1276 (1990) at 11; JM-824 (1987) at 2-4;
 JM-755 (1987) at 2-3; MW-252 (1980) at 2. Thus, a county has authority to provide legal counsel
 in addition to the authority expressly provided in section 157.901.

            Prior opinions restate the common-law      rule as follows:

                   Where a Texas governing body believes in good faith that the public
                   interest is at stake, even though an officer is sued individually,
                   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 upon the bona tides of the
                   governing body’s motive.

Tex. Att’y Gen. Op. No. JM-755 (1987) at l-2. These prior opinions emphasize that the authority
of a political subdivision to employ counsel to defend officers and employees:

                   is limited to situations where the          legitimate interests of the
                   [political subdivision] - and not just      the personal interests of the
                   officers or employees - require the        assertion of a vigorous legal
                   defense on behalfofthe public interest.     [A political subdivision] may



            ‘We  do not address whether section 74.141 of the Government Code authorizes the Attorney General to
represent   a state district judge in a mandamus proceeding in which the judge is not a real party in interest.
The Honorable      Michael P. Fleming         - Page 3              (JC-0047)




                  not use public funds when the principal interest to be defended is a
                  purely private one.

Tex. Att’y Gen. Op. NO. JM-824 (1987) at 2 (citations omitted). A political subdivision’s governing
body “need only determine that the public servant            acted in good faith within the scope of an
official duty.” Id. at 3 (citing City Nat? Bank ofAustin v. Presidio County, 26 S.W. 775 (Tex. Civ.
App.-1894, no writ); Tex. Att’y Gen. Op. No. M-726 (1970)). Such a determination may be
justified even if the suit contains allegations that the officer or employee acted outside the scope of
his or her authority. Id.

         Whether or not defense of a suit implicates a legitimate public interest is a question of fact
to be resolved by the political subdivision’s governing body in the first instance; this question
cannot, as a general matter, be resolved in an attorney general opinion. Id. at 2-3.2 While section
157.901 of the Local Government          Code entitles county officials and employees to legal
representation in certain circumstances, the common-law rule is permissive ~~~~~~‘  it does
                                                                                          . not require
the political subdivision to provide counsel. See Tex. Att’y Gen. Op. No. JM-1276 (1990) at 11.

         This office recently concluded in Attorney General Opinion DM-488 that the common-law
authority to defend an officer or employee in an action includes the authority to reimburse the
officer’s or employee’s legal expenses after they have been incurred, provided that there is no statute
preempting or limiting reimbursement.     Tex. Att’y Gen. Op. No. DM-488 (1998) at 2. The opinion
states that the common law requires a political subdivision to make two fact findings in order to
reimburse legal expenses. First, the political subdivision must determine that the suit involved a
public interest requiring a vigorous defense, or, conversely, that paying the legal fees serves a public,
not merely the officer’s or employee’s private, interest. Id. Second, the political subdivision must
determine that the officer or employee committed the alleged act or omission that was the basis of
the lawsuit while acting in good faith and within the scope of official duties. Id. at 3. We are not
aware of any statute preempting or limiting a county’s authority to reimburse legal fees. As
discussed above, this oftice has concluded that a county has common-law authority to provide legal
counsel in addition to the authority expressly provided in section 157.901 of the Local Government
Code. That provision does not supplant the common law. See attorney general opinions cited supra
p. 2. We are not aware of any other statute that could be construed to preempt or limit a county’s
authority to reimburse legal fees, Accordingly, we conclude, based on Attorney General Opinion
DM-488, that a county’s common-law authority to provide a defense includes the authority to
reimburse legal fees if the commissioners court makes the requisite findings of fact.

         Significantly for our purposes here, a county’s common-law authority to provide a defense
is not limited to county officials and employees. This office has construed the common-law rule to
permit a county to provide assistance to district attorneys and district judges in actions in which a
county interest is at stake. SeeTex. Att’y Gen. Op. Nos. JM-1276 (1990) at 1 l-12; MW-252 (1980);
H-544 (1975). In Attorney General Opinion H-544, for example, this office concluded that a county



           ‘In some cases, this office has concluded as a matter of law that a suit implicates only a private interest. See,
 e.g., Tex. Att’y Gen. Op.Nos. DM-431(1997)       (county precludedasmaaerof     law frompaying Legalexpensesofcounty
 officer incurred in defending election contest); m-685 (1987) ( concluding that school dishict may not pay trustee’s
 legal expenses incurred in defending election contest).
The Honorable          Michael P. Fleming           - Page 4          (JC-0047)




was authorized to pay the legal expenses of a district judge in a lawsuit in federal court arising from
a court of inquiry conducted by the judge if the commissioners court determined that it was in the
interests of the county to do so. While this office stated in a more recent opinion that a “county’s
authority to pay for such matters on behalf of non-county officials        must arise either expressly
or impliedly by statute,” Tex. Att’y Gen. Op. No. JM-1276 (1990) at 12, Attorney General Opinion
H-544 based county authority to pay the legal expenses of the district judge on the common law
alone, having expressly concluded that the legal expenses at issue were not costs within the meaning
of the Code of Criminal Procedure provision that required a county to pay court of inquiry costs.
Tex. Att’y Gen. Op. No. H-544 (1975) at 8.

         We have reviewed the legislative history of section 74.141 ofthe Government Code which,
as noted above, requires the Attorney General to represent state district judges when requested, to
determine whether that provision was intended to affect the common-law authority of counties to
provide assistance to district judges in actions in which a county interest is at stake. The statutory
predecessor to section 74.141, former article 4412b, was enacted as House Bill 1738 in 1975.? As
originally enacted, former article 4412b obligated the Attorney General to represent state district
judges only in actions in federal court.“ This language was deleted from article 4412b, added to the
 Court Administration Act, and codified in the Government Code in Senate Bill 687 in 1987.’ At that
time, the Attorney General’s obligation to represent state district judges was expanded to encompass
 actions in any court6

         The legislative history of House Bill 1738 indicates that it was enacted in response to
increased litigation against state district court judges and the lack of a uniform procedure for their
representation:    “Usually, [representation of district judges] is handled in an informal manner with
the judge seeking assistance from a private lawyer, the local district attorney or from the Attorney
 General’s Office.“’ Testimony before the House Judicial Affairs Committee indicates the bill
resulted from concerns expressed by the Judicial Section ofthe State Bar ofTexas        Because district
judges are state rather than county officials, county attorneys had no duty to defend them.9
 Testimony also noted the potential for local conflicts between district judges and district attorneys.”
 While the legislative history of House Bill 1738 clearly indicates that the legislature considered the



             ‘See Act ofMay    14, 1975,64th    Leg., R.S., ch. 215, 5 1, 1975 Tex. Gen. Laws 659,659.




             ‘Act of June 1, 1987, 70th Leg., R.S., ch. 674, $5 1.13, 1.14,2.14,   1987 Tex. Gen. Laws 2507, 2510.2516.

             “Id. $5 1.13, 2.14 (repeal effective   Sept. 1, 1987)

             ‘HOUSE COMM. ON JUDICIALAFFAIRS, BILL ANALYSIS, Tex. H.B. 1738,64th              Leg., R.S. (1975)

             ‘Hearings on Tex. H.B. 1738 Before the House Comm. on Judicial Afiirs, 64th Leg., R.S. (Apr. 16, 1975)
(statement     of representative of Judicial Section of the State Bar) (tape available from House Video/Audio Services
Ofike).
The Honorable Michael P. Fleming           - Page 5            (X-0047)




Attorney General the most reasonable choice to represent district judges,” the legislative history
does not indicate that the legislature intended to strip counties of their common-law authority to
provide assistance to district judges in actions in which a county interest is at stake.‘* Nor does the
1987 legislative history of Senate Bill 687, which expanded article 4412b and codified it in section
74.141 of the Government Code, indicate any legislative intent to limit the common-law authority
of counties.”

         In summary, neither the state nor a county is required to reimburse a state district judge for
legal expenses incurred by the judge in defending a mandamus action. Section 74.141 of the
Government Code merely entitles a state district judge to representation by the Attorney General;
it does not obligate the state to pay for the defense of a state district judge when the judge retains
private counsel without the prior approval of the Attorney General. A county has common-law
authority to provide legal counsel for a state district judge ifthe commissioners court determines that
legitimate county interests are at stake in the action. Under the common law, a county may
reimburse a district judge for legal fees incurred in an action if the commissioners court finds (i) that
the suit involved a county interest requiring a vigorous defense, or, conversely, that paying the legal
fees serves a county, not merely the judge’s private, interest and (ii) that the judge committed the
alleged act or omission that was the basis of the lawsuit while acting in good faith and within the
scope of official duties. The commissioners court’s findings are subject to judicial review for abuse
of discretion. See Commissioners Court of Titus County v. Agan, 940 S.W.2d 77, 80 (Tex. 1997).




         ‘2Attomey General Opinion H-544 was issued on March 4, 1975. House Bill 1738 was considered by the
House Committee on Judicial Affairs on April 16, 1975; was passed by the House on April 25, 1975, and the Senate
on May 14,1975; and was signed by the Governor on May 20.1975. The legislative history of House Bill 1738 makes
no mention of Attorney General Opinion H-544.

         “The express purpose of the bill was to remove certain technical difficulties and ambiguities arising in the
implementationofthe   Court Administration  Act. See HOUSE COMM. ON THE JUDICIARY,BILLANALYSIS,T~X.S.B.
687,7Oth Leg., R.S. (1987).
The Honorable   Michael P. Fleming     - Page 6           (X-0047)




                                         SUMMARY

                          Neither the state nor a county is required to reimburse a state
                district judge for legal expenses incurred by the judge in defending a
                mandamus action. Section 74.141 of the Government Code does not
                obligate the state to pay for the defense of a state district judge when
                the judge retains private counsel without the prior approval of the
                Attorney General.         While the county has no express statutory
                 authority to provide legal counsel for a state district judge, a county
                has the authority to do so under common law if the commissioners
                court determines that legitimate county interests are at stake in the
                 action. Under the common law, a county may reimburse a district
                judge for legal fees incurred in an action if the commissioners court
                 finds (i) that the suit involved a county interest requiring a vigorous
                 defense, or, conversely, that paying the legal fees serves a county, not
                 merely the judge’s private, interest and (ii) that the judge committed
                 the alleged act or omission that was the basis of the lawsuit while
                 acting in good faith and within the scope of official duties.




ANDY TAYLOR
First Assistant Attorney General

CLARK KENT ERVIN
Deputy Attorney General - General Counsel

ELIZABETH ROBINSON
Chair, Opinion Committee

Prepared by Mary Crouter
Assistant Attorney General
