                       The Attorney                General of Texas
                                           April        3,   1980
MARK WHITE
Attorney General


                   Honorable Billy Fred Lacy                    Opinion No. Nw-158
                   Potter County Auditor
                   Courthouse                                   Re: Whether a county is liable for
                   Amarillo, Texas 79101                        court costs assessed against the
                                                                district attorney.

                   Dear Mr. Lacy:

                           You ask whether the commissioners court of Potter County should
                   reimburse the district attorney under article 6252-19b, V.T.C.S:, for court
                   costs assessed against him by the court of civil appeals. The suit arose out
                   of the district attorney’s decision to deny a particular newspaper access to
                   official news sources in his office without an appointment.            Other
                   newspapers were not subject to the same rule. The paper sued to enjoin this
                   practice. In Southwestern Newspapers Corporation v. Curtis, 584 S.W.2d 362
                   (Tex. Civ. App. - Amarillo 1979, no writ), the court of civil appeals
                   reversed the trial court denial of a temporary injunction. See also Curtis v.
                   Nobles, 588 S.W.2d 687 (Tex. Civ. App. - Amarillo 1979, no wrn
                   court of civil appeals assessed the costs of the appeal against the district
                   attorney. He has paid them and now seeks reimbursement from the county.

                           You specifically ask whether the following provision enacted by the
                   66th Legislature permits the county to pay the costs assessed against the
                   district attorney in defense of this suit:

                                 Section 1. In this Act ‘employee’ includes en
                              elected official and any other officer or employee, a
                              former officer or employee or their estates, of a
                              county, city, town, special purpose district, or any
                              other political subdivision of this state.

                                 Sec. 2. (a) A county, city, town, special purpose
                              district, or any other political subdivision of the state
                              may pay actual dameges, court costs, and attorney’s
                              fees adjudged against its employee, if damages are
                              based on an act or omission by the employee in the
                              course and scope of his or her employment for such
                              political subdivision and if the damages arise out of a
                              cause of action for negligence, except a wllful or




                                                   p.    508
Honorable Billy Fred Lacy    -     Page Two        (~~-158)



           wrongful act or omission or an act or omission constituting         gross
           negligence or for official misconduct.

Acts 1979, 66th Leg., ch. 744, at 1830, to be codified as V.T.C.S. art. 6252-19b. We note
initially that this provision permits, but does not require, the political subdivision to pay
court costs under certain conditions.      Compare V.T.C.S. art. 6252-26 (state shall pay
actual damages, court costs, and attorney fees). Thus, even if all conditions necessary for
payment of expenses are present, the county may choose not to pay them.

        In the case you inquire about, at least one prerequisite for reimbursement of the
district attorney’s court costs is absent. We do not believe the suit arose out of a cause of
action for negligence.     Rather, it was a suit for a temporary injunction based upon the
deprivation of a constitutionally    protected right. The decision of the court to grant the
temporary injunction was not based upon any allegations or proof of negligence on the part
of the district attorney.       Unlike article 6252-26, V.T.C.S.,    which provides for the
payment of damages, costs and attorney’s fees adjudged against an officer or employee
arising out of a cause of action for &privation of a constitutional       right under certain
circumstances, article 6252-19b, V.T.C.S., contains no such provision and is restricted in
its scope to negligence actions. Consequently, the recently enacted statute does not allow
payment of the district attorney’s court costs. You do not inquire about and we do not
address any other possible bases for reimbursing these costs. See V.T.C.S. art. 332~;
Attorney General Opinions H-887 (1976); H-544 (1975); Letter AdviGy No. 24 (19731.

                                       SUMMARY

           Article 6252-l9b, V.T.C.S., does not permit the county to pay court
           costs incurred by the district attorney in defending an injunction
           suit arising out of his intentional restriction on the access of a
           newspaper publisher to official news sources in his office.




                                                   MARK     WHITE
                                                   Attorney General of Texas

JOHN W. FAINTER, JR.
First Assistant Attorney General

TED L. HARTLEY
Executive Assistant Attorney General

Prepared by Susan Garrison
Assistant Attorney General




                                              p.    509
Honorable Billy Fred Lacy   -   Page Three    (~~-158)



APPROVED:
OPINION COMMITTEE

C. Robert Heath, Chairman
Jim Allison
David B. Brooks
Walter Davis
Susan Garrison
Rick Gilpin
Bruce Youngblood




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