                               ATTORNEY GENERAL OF TEXAS
                                            GREG        ABBOTT




                                                 May 21,2003



Mr. Edward A. Dion                                       Opinion No. GA-0074
El Paso County Auditor
500 East San Antonio Street                              Re: Authority of a bail bond board to hire outside
El Paso, Texas 79901-2407                                legal counsel over the objection of the county
                                                         attorney (RQ-0005GA)

Dear Mr. Dion:

        You ask a series of questions regarding the El Paso County Bail Bond Board (the “Board”)
and the county attorney.’ As we understand the facts leading to your request, some members of the
Board assert that the county attorney has a conflict of interest in both providing legal advice to the
Board and collecting bond forfeitures. Accordingly, some members of the Board believe that the
Board should employ outside counsel, and, as you inform us:

                          On September 25,2002, the Board approved a motion to hire
                 an attorney to represent it, subject to the El Paso County Auditor
                 requesting and receiving an attorney general opinion that: (1) it is
                 lawful for the Board to hire outside legal counsel over the objection
                 of the El Paso County Attorney; and (2) it is lawful for the El Paso
                 County Auditor to pay a claim for the outside counsel’s fees under
                 such circumstances.

Request Letter, supra note 1, at 1.

        Your first question is whether the Board is a county entity. The question arises because a
county attorney has a duty under section 41.007 of the Government Code to “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.” TEX. GOV’T CODE ANN. 4 41.007 (Vernon 1988). As you explain it, “It is
contended by some members of the Board that the Board is not a ‘county entity,’ and therefore need
not seek legal advice from the County Attorney.” Request Letter, supra note 1, at 2.




         ‘See Letter from Mr. Edward A. Dion, El Paso County Auditor, to Honorable     Greg Abbott, Texas Attorney
General (Dec. 4,2002) (on file with Opinion Committee) [hereinafter Request Letter].
Mr. Edward A. Dion - Page 2                       (GA-0074)




         Pursuant to chapter 1704, subchapter B of the Occupations Code, a county bail bond board
“is created irt each county with a population of 110,000 or more,” TEX. OCC. CODEANN. 8 1704.05 1
(Vernon 2003) (emphasis added), and “may be created in a county with a population of fewer than
 110,000.” Id. 5 1704.052 (emphasis added). The members of such a board include inter alia’such
county officials as the sheriff or his designee, a district judge of the county with criminal jurisdiction,
the county judge or a commissioner or designee of the commissioners court, a county court or county
court-at-law judge with criminal jurisdiction, and the county treasurer. See id. $ 1704.053. In Dallas
County Bail Bond Board v. Mason, 773 S.W.2d 586 (Tex. App.-Dallas 1989, no writ), the Dallas
court of appeals described a bail bond board as a “legal entity through which the county performs
its governmental function.” See Mason, 773 S.W.2d at 587. Similarly, in Dallas County Bail Bond
Board v. Stein, 771 S.W.2d 577 (Tex. App.-Dallas 1989, writ denied), the same court described a
board as a “governmental agent of the county for purposes of regulating the bail bond industry.” See
Stein, 77 1 S.W.2d at 579. It is clear, in light of (i) the statutory language indicating that bail bond
boards are created in each county and function in that county, (ii) the fact that a significant portion
of the membership of such boards consists of ex ofsicio county officers or their designees, and (iii)
the specific description of such boards in Mason and Stein as performing county governmental
functions, that bail bond boards such as the El Paso County Bail Bond Board are county entities.

        Your second question is whether the county attorney’s duties include legal counsel to the
Board. We have already noted with respect to this question that section 41.007 of the Government
Code imposes a duty to provide legal advice on a county attorney. The El Paso county attorney is
further explicitly charged by Government Code section 45.17 1(a) “to represent the state, El Paso
County, and the officials of El Paso County in all civil matters pending before the courts of ElPaso
County and any other courts in which the state, the county, or the officials of the county have matters
pending.” TEX. GOV’T CODE ANN. $45.17 l(a) (Vernon Supp. 2003). These provisions charge the
El Paso county attorney with the legal representation of the county and its officials, which, as we
noted in answer to your first question, specifically includes the Board.

         It has been suggested, however, that section 1704.101(8) of the Occupations Code, which
empowers the Board to “employ persons necessary to assist in board functions,” TEX. OCC. CODE
ANN. 5 1704.101(8) (Vernon 2003)’ gives the Board the authority to hire outside legal counsel to
provide it advice. It is well-established law in Texas that an officer cannot be ousted from his legal
duties. In TerreZZ v. Greene, 3 1 S.W. 63 1 (Tex. 1895)’ the Tar-rant County commissioners sued the
county treasurer on his bond and employed a private attorney for this purpose. The county attorney
asserted that the duty to prosecute the suit was his, and the Texas Supreme Court agreed: “While
the commissioners’ court might employ counsel to assist the county attorney in the performance of
this duty, it had not the authority under the law to displace him from his position and rightful
authority under the law as an officer of that county.” Terre& 31 S.W. at 633. Similarly, in Jones
v. Veltmann, 171 S.W. 287 (Tex. Civ. App.-San Antonio 1914, writ ref’d), the San Antonio appeals
court held that the county attorney had a duty to provide legal advice to the county: “It was . . . the
duty of the county attorney to advise the county judge and commissioners’ court in regard . . . to all
county matters. There could be no county matters about which advice was required that was ‘not
contemplated or covered’ by his official duties as county attorney.” VeZtmann, 171 S.W. at 290.
Based upon those authorities and others, this office concluded in Attorney General Opinion JM- 128 1
Mr. Edward A. Dion - Page 3                     (GA-0074)




(1990) that the Harris County Commissioners Court could not appoint lawyers to advise the sheriff
or individual commissioners on their legal duties except in compliance with a statute that gave the
power to select such counsel to the county attorney. The law “compel[s] the various officials of [a
county] to obtain representation and advice in all legal matters from the [county] attorney and him
alone, absent the exceptions provided by [the statute in question].” Tex. Att’y Gen. Op. No. JM-
1281 (1990) at 6.

         The more recent case of Guynes v. Galveston County, 861 S.W.2d 861 (Tex. 1993) does not
argue for a contrary result. In that case, the Galveston County Commissioners Court had, with the
consent of the Galveston County criminal district attorney, created a legal department to advise it.
The criminal district attorney’s principal role was representing the state in criminal matters, and he
had “clearly and unequivocally consented to [this] arrangement for handling the county’s’ legal
affairs.” Guynes, 861 S.W.2d at 864. As the supreme court said:

               We are not called on to resolve any actual conflict between the
               Commissioners Court and the Criminal District Attorney, and do not
               address what limitations   might be imposed on the present
               arrangement should the Criminal District Attorney withdraw his
               consent or otherwise object to the business or conduct of the
               Department.

Id. Unlike the Galveston County criminal district attorney, however, the El Paso county attorney
explicitly refuses to consent to the proposal that he be superceded by outside counsel. Further,
Guynes dealt with a county in which the county attorney’s office had been abolished by statute. See
id. at 862. This is not the case in El Paso County. There is a functioning El Paso county attorney
who cannot be divested of his duties against his will. The power granted the Board to “employ
persons necessary to assist in board functions, “TEx. OCC.CODEANN. $1704.101(8) (Vernon 2003)’
is not sufficient to effect such a result.

        We have determined that the Board may not employ outside counsel without the consent of
the county attorney, and because you have a duty as county auditor to see to the proper expenditure
of moneys deposited in the county’s general fund, you may not approve the payment of a claim for
such representation. As you point out, Local Government Code section 112.006(b) requires you to
“see to the strict enforcement of the law governing county finances,” section 113.064(a) provides
that a claim “may not be allowed or paid” until you have examined and approved it, and section
 113.065 provides that you may not approve such a claim “unless the claim was incurred as provided
by law.” TEX. Lot. GOV’TCODEANN. $Q 112.006(b), 113.064(a), 113.065 (Vernon 1999). Section
 1704.101(8) of the Occupations Code does not furnish a basis for the payment of any such claim.

         Your final question returns to the root of the   instant controversy. You ask whether there is
indeed a conflict of interest when the county attorney    both represents the Board and collects on bond
forfeitures.   The relevant Texas Disciplinary Rule       of Professional Conduct is Rule 1.06, which
requires that a lawyer not represent opposing parties     in the same litigation or represent two persons
in “a substantially related matter” whose interests are   “materially and directly adverse” or reasonably
Mr. Edward A. Dion - Page 4                     (GA-0074)




appear “to be or become adversely limited” by such representation. TEX. DISCIPLINARYR. PROF’L
CONDUCT 1.06(a), (b), reprinted in TEX. GOV’T CODE ANN., tit. 2, subtit. G app. A (Vernon 1988)
(TEx. STATEBAR R. art. X, 8 9). Insofar as the county attorney represents the state, in whose name
the action is maintained, in bail bond forfeitures, see TEX. CODE GRIM. PROC. ANN. art. 22.02
(Vernon 1989), his duty is to obtain favorable results for the state and to collect on the judgment.
The Board, on the other hand, has no particular interest in any such action. Pursuant to section
1704.204(b) of the Occupations Code, if a surety fails to pay a final judgment, the funds necessary
for its satisfaction may be withdrawn from the security posted under section 1704.160 of the same
code. SeeTEX. OCC. CODEANN. $8 1704.160,1704.204(b) (Vernon 2003). However, in such event,
section 1704.206 of the Occupations Code requires the surety to replenish the funds in question. See
id. 8 1704.206. Accordingly, the Board is not materially disadvantaged when the county attorney
prosecutes a bond forfeiture action.

        Even if it were possible for a county attorney’s two governmental responsibilities to conflict,
the Texas Supreme Court has recognized that such conflicts are not to be regarded in the same
manner as conflicts of interest in the representation of private parties. In Public Utility Commission
of Texas v. Gofer, 754 S.W.2d 121 (Tex. 1988)’ the supreme court held that the attorney general
could not be removed from representing one of two adverse state agencies even when they were
directly on either side of the docket. See Gofer, 754 S.W.2d at 125. The court did not decide, in that
instance, that there was no conflict, but held that the attorney general was directed by statute to take
these opposing roles and that the resolution of any such conflict, like its creation, was a matter for
the legislature. See id. at 125-26.
Mr. Edward A. Dion - Page 5                  (GA-0074)




                                      SUMMARY

                      The El Paso County Bail Bond Board is a county entity.           .
              Government Code section 41.007 imposes a duty on the El Paso
              county attorney to provide legal counsel to the Board. See TEX.
              GOV’TCODEANN. 5 41.007 (Vernon 1988). The Board may not seek
              outside legal counsel without the consent of the county attorney, and
              the El Paso county auditor may not pay any claim for such outside
              representation.  There is no inherent conflict of interest in the dual
              roles of the county attorney in collecting bail bond forfeiture
              judgments and advising the Board.

                                             Very truly yours,




BARRY R. MCBEE
First Assistant Attorney General

DON R. WJLLETT
Deputy Attorney General for Legal Counsel

NANCY S. FULLER
Chair, Opinion Committee

James E. Tourtelott
Assistant Attorney General, Opinion Committee
