Could a Louisiana housing authority hire the district attorney's office as paid counsel when that office had no duty to represent it?

Plain-English summary

After its previous lawyer resigned, the Houma Terrebonne Housing Authority voted unanimously to hire the district attorney's office, with the DA's consent, at a lower rate. In 2005, the Attorney General said the arrangement was permissible. The key was that the DA was not already required by law to serve as the housing authority's counsel.

The AG compared the mandatory representation lists in LSA-R.S. 16:2 and LSA-R.S. 42:261(A) with the housing authority's status under LSA-R.S. 40:384(16). It treated the authority as a political subdivision independent of the parish or municipality that created it, not one of the entities for which the DA had a statutory duty to provide counsel without extra compensation. Because the service was outside that duty, the opinion said the DA could contract to provide it for reasonable compensation.

Currency note

This opinion was issued in 2005. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

Common questions

Could the housing authority hire the district attorney's office instead of a private firm?

The AG said yes for the Houma Terrebonne Housing Authority. Its board had voted to hire the office, and the DA had agreed; the statutes did not require the DA to represent the authority already.

Why could the DA receive payment for representing this public body?

The mandatory-counsel statute required service without extra compensation for specified entities. The AG found the housing authority outside that list and allowed a separate contract for reasonable compensation.

Was the housing authority simply a parish department the DA had to represent?

No. The opinion quoted LSA-R.S. 40:384(16)'s description of a local housing authority as a political subdivision independent of the municipality or parish that established it.

Did the opinion permit extra payment for duties the DA was already required to perform?

No. Its compensation conclusion was expressly limited to public entities the DA was not required by law to represent. The opinion quoted the separate no-extra-compensation rule for entities on the statutory list.

Background and statutory framework

The Thirty-Second Judicial District Attorney asked whether his office could become counsel for the housing authority after the authority's prior lawyer resigned. LSA-R.S. 16:2 and LSA-R.S. 42:261(A) identified public bodies to which the DA owed regular counsel; the latter required such service without extra compensation. The AG used LSA-R.S. 40:384(16) to classify the housing authority as an independent political subdivision, then concluded that the DA could voluntarily contract with it at a reasonable rate. The source's analysis contains a reference to "LSA-R.S. 42:263(A)" in one sentence, while its quoted provision and syllabus cite LSA-R.S. 42:261(A); this page follows the quoted provision.

Citations

• LSA-R.S. 16:2 (entities receiving district attorney representation).
• LSA-R.S. 42:261(A) (regular counsel duty without extra compensation).
• LSA-R.S. 40:384(16) (housing authority as independent political subdivision).

Source

• Landing page: https://www.ag.state.la.us/Opinions
• Original PDF: https://www.ag.state.la.us/Opinion/Download/05-0296

Original opinion text

November 1, 2005
OPINION NUMBER 05-0296

Honorable Joseph L. Waitz, Jr. 22 – DISTRICT AND PROSECUTING ATTORNEYS
District Attorney
53 -1 HOUSING AUTHORITY
Thirty-Second Judicial District LSA-R.S. 16:2; LSA-R.S. 42:261(A); LSA-R.S. 40:384(16) 7856 Main Street A District Attorney may agree to provide legal representation
Courthouse Annex Suite 220
to public entities he is not required by law to represent,
Houma, Louisiana 70360
and to receive reasonable compensation therefore.

Dear Mr. Waitz:

Reference is made to your request for an Attorney General’s Opinion regarding your office’s legal representation of the Houma Terrebonne Housing Authority (the “Authority”). According to your correspondence, the Authority’s previous counsel resigned, leaving the Authority without representation. By unanimous vote, the Authority’s governing board has agreed, with your consent, to hire your office as the Authority’s legal counsel. Your office has agreed to act as the Authority’s counsel at a lower rate than the rate previously provided, thus saving money for the tax payers of your area.

Specifically, you seek the opinion of this office as to whether or not it is permissible for the Authority to hire the Terrebonne District Attorney’s Office as its legal counsel.

In order to properly respond to your request, this office must first determine whether or not your office is required by law to represent the Authority. In this regard, we note that LSA-R.S. 16:2 and LSA-R.S. 42:261(A) provide with respect to the duty of District Attorneys to represent public entities. LSA-R.S. 16:2 provides:

“The district attorneys of the several judicial districts of Louisiana, other than the Parish of Orleans, shall ex officio be the regular attorneys and counsel for the police juries, parish school boards, and city school boards within their respective districts and of every state board or commission domiciled therein, including levee boards, hospital and asylum boards, education boards, and all state boards and commissions the members of which, in whole or in part, are elected by the people or appointed by the governor or other prescribed authority, except state boards and commissions domiciled at the city of Baton Rouge, parish of East Baton Rouge, and all other boards in charge of in control of state institutions.”

Page 2

Opinion Number 05-0296
Honorable Joseph L. Waitz, Jr.
District Attorney
Thirty-second Judicial District
Page -2-

LSA-R.S. 42:261(A) provides:

“Except as provided by Subsection C of this Section or as otherwise provided by law, the district attorneys of the several judicial districts other than the parish of Orleans shall, ex officio and without extra compensation, general or special, be the regular attorneys and counsel for the parish governing authorities, parish school boards, and city school boards within their respective districts and of every state board or commission domiciled therein, the members of which, in whole or in part, are elected by the people or appointed by the governor or other prescribed authority, except the state boards and commissions domiciled at the city of Baton Rouge, and all boards in charge or in control of state institutions.”

In the opinion of this office, you are not required to provide legal representation to the Authority, as housing authorities do not fall within the types of entities and offices listed in LSA-R.S. 16:2 or LSA-R.S. 42:263(A). In accord: Attorney General’s Opinion No. 77:1147. Rather, housing authorities are considered to be political subdivisions of the state, as provided in LSA-R.S. 40:384(16), which states:

"’Local housing authority’ or ‘authority’ means a public body, corporate and politic, previously established, or to be established, by a municipality or a parish pursuant to the authority provided in this Chapter, exercising necessary and essential governmental functions for the purposes stated in this Chapter in matters of statewide concern, although its operations are local in nature. It is a political subdivision of this state, independent from the municipality or parish which established or establishes it or which may appoint some or all of its commissioners. Any reference in this Chapter to a local housing authority shall also be deemed to include a "housing authority" or a "regional or consolidated housing authority" unless the context clearly otherwise requires. "Local housing authority" also includes any housing authority established under prior law.”

We also call your attention to the decision rendered in Department of State Civil Service v. Housing Authority of East Baton Rouge, #95CA1959, (La. App. 1st Cir 1996), which determined public housing authorities to be instrumentalities of the state for purposes of La. Const. Art. X, Sec. 1, which governs civil service systems. See also: Attorney Generals Opinions Nos. 03-0082, 98-473 and 96-149.

Because your office is not required to provide legal representation to the Authority, it is our opinion that you may contract with the Authority to do so. In the opinion of this office, a District Attorney may agree to provide legal representation to public entities he is not required by law to represent, and to receive reasonable compensation therefore. In this regard we call your attention to certain previous opinions of this office, all of

Page 3

Opinion Number 05-0296
Honorable Joseph L. Waitz, Jr.
District Attorney
Thirty-second Judicial District
Page -3-

which reached this same conclusion: Attorney General’s Opinions Nos. 97-125, 85- 782, 78-1639 and 77-1147. Of particular interest to you would be Opinion No. 97-125, which was addressed to you on April 22, 1997. As you no doubt recall, that opinion determined that your office could enter into an agreement to provide legal representation to the Southern Terrebonne Tidewater District, a local political subdivision your office was not statutorily required to represent.

We trust the foregoing to be of assistance. Please do hesitate to contact this office if we can be of assistance in other areas of the law.

Yours very truly,

CHARLES C. FOTI, JR.
Attorney General

BY: _________
JEANNE-MARIE ZERINGUE BARHAM
Assistant Attorney General

CCF, jr./JMZB/dam

Page 4

OPINION NUMBER 05-0296
Syllabus

22 – DISTRICT AND PROSECUTING ATTORNEYS
53 -1 HOUSING AUTHORITY

LSA-R.S. 16:2; LSA-R.S. 42:261(A); LSA-R.S. 40:384(16)

A District Attorney may agree to provide legal representation to public entities he is not required by law to represent, and to receive reasonable compensation therefore.

Honorable Joseph L. Waitz, Jr.
District Attorney
Thirty-Second Judicial District
7856 Main Street
Courthouse Annex Suite 220
Houma, Louisiana 70360

Date Received:

Date Released: November 1, 2005

Jeanne-Marie Zeringue Barham
Assistant Attorney General