Can a county attorney defend a hospital district employee in a criminal case, and can the district pay the legal bills?

Plain-English summary

A Harris County Hospital District employee was charged with a misdemeanor, the alleged sexual touching of a hospital patient, said to have happened in the course of his work. The county attorney refused to represent him, the employee hired his own lawyer, and he was acquitted. He then asked the hospital district to pay back his legal bills. The county attorney asked the Attorney General three things: could the county attorney have represented the employee, could the district hire a lawyer for an employee in that situation, and could the district reimburse the employee's legal costs after the fact.

On the first question, the answer was no. Article 2.08 of the Code of Criminal Procedure says district and county attorneys cannot be of counsel adversely to the State. That keeps a county attorney from defending anyone, including a hospital district employee, in a criminal case.

On the second, the answer was a qualified yes. Health and Safety Code section 281.056(c) lets the hospital district employ additional legal counsel, and the opinion read that broadly enough to cover defending the district's officers and employees in civil and criminal matters. But that power is not unlimited. The Texas Constitution (article III, sections 50, 51, and 52) bars spending public money on a purely private interest. So the district can pay for a defense only when its own legitimate interest, not just the employee's personal interest, calls for a vigorous defense of the public interest. The board does not have to decide the employee was right, only that he acted in good faith within the scope of an official duty. Whether that test is met in a given case is a fact question for the board, not something the opinion process can resolve.

On the third, the answer was no. Section 281.056(c) authorizes the district to employ counsel; it does not authorize reimbursing an employee for legal expenses he has already incurred, and the opinion found no other authority for a governmental entity to pay a public employee back after the fact.

Currency note

This opinion was issued in 1992. 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. The hospital district statutes in chapter 281 of the Health and Safety Code and the public-employee indemnification provisions have been amended since 1992, so confirm the current statutes before relying on this opinion.

Background and statutory framework

The first question was whether the Harris County Attorney could represent the employee. Article 2.08 of the Code of Criminal Procedure provides that district and county attorneys "shall not be of counsel adversely to the State in any case, in any court, nor shall they, after they cease to be such officers, be of counsel adversely to the State in any case in which they have been of counsel for the State." The opinion read this as a general bar on district and county attorneys representing defendants in criminal cases. Attorney General Opinions V-247 (1947), O-5735 (1944); Ethics Opinion 419, 47 Tex. B.J. 1370 (1984); Ex parte Ramsey, 642 S.W.2d 483 (Tex. Crim. App. 1982) (county attorney not disqualified from representing a habeas petitioner because that case did not fall within chapter 2 of the Code of Criminal Procedure). Article 2.08 therefore prohibited the county attorney from representing a hospital district employee in a misdemeanor case.

The second question was the hospital district's authority. A special-purpose district such as a hospital district "may exercise only such powers as have been expressly delegated to it by the Legislature, or which exist by clear and unquestioned implication," with implied powers being those "indispensable to . . . the accomplishment of the purposes of [the district's] creation." Tri-City Fresh Water Supply District No. 2 v. Mann, 142 S.W.2d 945, 946-47 (Tex. 1940); Attorney General Opinion JM-258 (1984). The Harris County Hospital District was created under chapter 281 of the Health and Safety Code. Section 281.056 provides that the appropriate county, district, or criminal district attorney represents the district in all legal matters, that the board "may employ additional legal counsel when the board determines that additional counsel is advisable" (subsection (c)), and that the district funds the represented officer's added salaries and expenses (subsection (d)).

The opinion read the broadly written subsection (c) to authorize the district, in limited circumstances, to employ counsel to represent both the district and its officers or employees in civil and criminal matters. Attorney General Opinions JM-968 (1988), JM-824, JM-755, JM-685 (1987); City of Corsicana v. Babb, 290 S.W. 736 (Tex. Comm'n App. 1927, judgm't adopted); Letter Opinion No. 90-93 (1990) (a governing body's authority to employ attorneys exists not only for alleged negligence but also when an officer or employee is alleged to have committed an intentional tort or criminal act). It rejected the suggestion that subsection (b)'s reference to "civil matters" limited subsection (c) to civil matters; subsection (b) only identifies who represents the district and does not preclude obtaining counsel in criminal matters.

That authority is bounded by article III, sections 50, 51, and 52 of the Texas Constitution. Attorney General Opinions JM-824 at 4 (interpreting the predecessor to Local Government Code section 157.901), JM-755 at 3, JM-685 at 2. The power to defend officers and employees is limited to situations where the governmental entity's own legitimate interests, not just the personal interests of the officer or employee, require a vigorous legal defense on behalf of the public interest. Public funds may not be used when the interest defended is purely private. The board need not conclude the employee was correct, only that the employee acted in good faith within the scope of an official duty. Whether spending public funds is constitutional in a particular case depends on the nature of the interest at stake and is a fact question for the board to decide.

On the third question, the opinion concluded the district could not reimburse an employee, after the litigation ended, for legal expenses he incurred defending himself. Section 281.056(c) authorizes employing counsel; it does not authorize reimbursement, and the opinion was aware of no other authority allowing a governmental entity to pay a public official or employee back after the person has already incurred the expense. Letter Opinion No. 90-93.

Common questions

Could the Harris County Attorney defend the hospital district employee?
No. The opinion concluded article 2.08 of the Code of Criminal Procedure barred the county attorney from representing the employee in a criminal case, because district and county attorneys cannot be of counsel adversely to the State.

Could the hospital district hire a lawyer to defend its employee on criminal charges?
Yes, within limits. Health and Safety Code section 281.056(c) let the district employ counsel for its officers and employees in civil and criminal matters, but only when the district's own interest, not just the employee's, justified the defense, and only consistent with the public-purpose limits of article III of the Texas Constitution.

Who decides whether the district can pay for a particular defense?
The hospital district's board. The opinion treated the constitutionality of the expenditure as a fact question, turning on whether the district had a legitimate interest at stake and whether the employee acted in good faith within the scope of an official duty.

Could the district reimburse the employee after he was acquitted?
No. The opinion concluded section 281.056(c) authorized employing counsel, not reimbursing an employee's already-incurred legal expenses, and it found no other authority for paying a public employee back after the fact.

Citations

• Code of Criminal Procedure article 2.08
• Health and Safety Code chapter 281; §§ 281.056, 281.056(c)
• Texas Constitution article III, §§ 50, 51, 52
• Local Government Code § 157.901
• Ex parte Ramsey, 642 S.W.2d 483 (Tex. Crim. App. 1982)
• Tri-City Fresh Water Supply District No. 2 v. Mann, 142 S.W.2d 945, 946-47 (Tex. 1940)
• City of Corsicana v. Babb, 290 S.W. 736 (Tex. Comm'n App. 1927, judgm't adopted)
• Tex. Att'y Gen. Ops. V-247 (1947), O-5735 (1944), JM-258 (1984), JM-968 (1988), JM-824, JM-755, JM-685 (1987); Letter Opinion No. 90-93 (1990); Ethics Opinion 419, 47 Tex. B.J. 1370 (1984)

Source

• Landing page: https://www.texasattorneygeneral.gov/opinions/dan-morales/dm-0107
• Original PDF: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1992/dm0107.pdf

Original opinion text

Best-effort transcription from a scanned PDF. Minor errors may remain — the linked PDF is authoritative.

Office of the Attorney General
State of Texas

DAN MORALES
ATTORNEY GENERAL

April 20, 1992

Honorable Mike Driscoll
Harris County Attorney
1001 Preston, Suite 634
Houston, Texas 77002-1891

Opinion No. DM-107

Re: Whether the Harris County Attorney is authorized to represent a Harris County Hospital District employee accused of criminal acts committed within the course of his duties, and whether the hospital district is authorized to hire an attorney to represent such an employee or to reimburse the employee's legal expenses following the conclusion of the litigation (RQ-291)

Dear Mr. Driscoll:

You have asked whether the Harris County Attorney (the "county attorney") is authorized to represent a Harris County Hospital District employee accused of criminal acts committed during the course of his duties. You also ask whether the Harris County Hospital District (the "hospital district") is authorized to hire an attorney to represent such an employee or to reimburse the employee's legal expenses following the conclusion of the litigation. By way of background, you explain that an employee of the hospital district was charged with a misdemeanor for the alleged sexual touching of a hospital district patient. The county attorney denied the employee's request for representation. The employee hired his own attorney and was eventually acquitted of the charges. The employee is now requesting that the hospital district reimburse him for his legal expenses.

You contend that the county attorney's office is prohibited from representing a hospital district employee under these circumstances by article 2.08 of the Code of Criminal Procedure. We agree. Article 2.08 provides as follows:

District and county attorneys shall not be of counsel adversely to the State in any case, in any court, nor shall they, after they cease to be such officers, be of counsel adversely to the State in any case in which they have been of counsel for the State.

This provision generally prohibits district and county attorneys from representing defendants in criminal cases. See, e.g., Attorney General Opinions V-247 (1947); O-5735 (1944); see also Ethics Opinion 419, 47 Tex. B.J. 1370 (1984); cf. Ex parte Ramsey, 642 S.W.2d 483 (Tex. Crim. App. 1982) (county attorney not disqualified from representing petitioner in application for writ of habeas corpus because case did not fall within general provisions of chapter 2, Code of Criminal Procedure). Clearly, article 2.08 would prohibit a county attorney from representing any person, including a hospital district employee, in a misdemeanor case such as the one you describe.

You also ask whether the hospital district is authorized to hire an attorney to represent an employee against misdemeanor charges which arise from conduct allegedly committed by the employee during the course of his duties, or to reimburse the employee's legal expenses following the conclusion of litigation. Generally, a special-purpose district, such as a hospital district, "may exercise only such powers as have been expressly delegated to it by the Legislature, or which exist by clear and unquestioned implication." Tri-City Fresh Water Supply District No. 2 v. Mann, 142 S.W.2d 945, 946 (Tex. 1940). Implied powers are those that are "indispensable to . . . the accomplishment of the purposes of [the district's] creation." Id. at 947; see also Attorney General Opinion JM-258 (1984).

The Harris County Hospital District was created pursuant to chapter 281 of the Health and Safety Code. Section 281.056 of that chapter provides:

(a) The board may sue and be sued.

(b) The county attorney, district attorney, or criminal district attorney, as appropriate, with the duty to represent the county in civil matters shall represent the district in all legal matters.

(c) The board may employ additional legal counsel when the board determines that additional counsel is advisable.

(d) The district shall contribute sufficient funds to the general fund of the county for the account of the budget of the county attorney, district attorney, or criminal district attorney, as appropriate, to pay all additional salaries and expenses incurred by that officer in performing the duties required by the district.

Subsection (c) of section 281.056 is broadly written. We believe that in limited circumstances it authorizes the hospital district to employ legal counsel to represent both the district and its officers or employees in civil and criminal matters.[1] See Attorney General Opinions JM-968 (1988); JM-824, JM-755, JM-685 (1987) (recognizing that Texas governing bodies are generally authorized to employ attorneys to defend their officers and employees in certain circumstances); see also City of Corsicana v. Babb, 290 S.W. 736 (Tex. Comm'n App. 1927, judgm't adopted); Attorney General Opinion JM-968 at 3; Letter Opinion No. 90-93 (1990) (recognizing that Texas governing bodies' authority to employ attorneys exists not only when an officer is alleged to have committed an act of mere negligence, but also when an officer or employee is alleged to have committed an intentional tort or criminal act).

This office has repeatedly recognized that the statutory authority of Texas governing bodies to employ counsel is limited by the Texas Constitution, article III, sections 50, 51, and 52. See, e.g., Attorney General Opinions JM-824 at 4 (interpreting predecessor provision to Local Government Code section 157.901); JM-755 at 3 (same); see also Attorney General Opinion JM-685 at 2 (authority of school district to employ counsel). Thus, the authority of a hospital district under section 281.056(c) to employ attorneys to defend officers and employees is not boundless. Specifically, this authority is limited to situations where legitimate interests of the governmental entity to employ counsel, not just the personal interests of the officers or employees, require the assertion of a vigorous legal defense on behalf of the public interest. Attorney General Opinion JM-824 at 2. Public funds may not be used when the interest to be defended is a purely private one. Id. The governing body need not conclude, however, that the officer or employee must have been correct in his course of action; the governing body need only determine that the officer or employee acted in good faith within the scope of an official duty. Id. at 3.

Prior opinions of this office also establish that the question of the constitutionality of expending public funds in the defense of an officer or employee in a particular instance depends upon the nature of the interest at stake and, therefore, involves questions of fact which cannot be resolved in the opinion process. Id. at 2. Thus, it is for the board of the hospital district to determine whether the matter at issue in a particular lawsuit concerns the interest of the hospital district or whether the expenditure of public funds would only personally benefit the officer or employee. Id. at 3.

While we conclude that section 281.056(c) of the Health and Safety Code authorizes the hospital district to hire attorneys to represent officers or employees within the constitutional limitations described above, we conclude that the hospital district is not authorized to reimburse an employee following the conclusion of the litigation for legal expenses he incurred in defending himself. First, section 281.056(c) merely authorizes the hospital district to employ counsel; it does not authorize the reimbursement of an employee's legal expenses. Second, we are not aware of any other authority for the proposition that a governmental entity may reimburse a public official or employee after the person has incurred legal expenses. See Letter Opinion No. 90-93.

SUMMARY

Article 2.08 of the Code of Criminal Procedure prohibits the Harris County Attorney from representing a Harris County Hospital District employee in a criminal case. Section 281.056(c) of the Health and Safety Code authorizes the Harris County Hospital District to hire an attorney to represent an employee. Whether the Texas Constitution permits the Harris County Hospital District to do so in a particular case involves questions of fact and must be determined by its board. The Harris County Hospital District is not authorized to reimburse an employee's legal expenses following the conclusion of the litigation.

DAN MORALES
Attorney General of Texas

WILL PRYOR
First Assistant Attorney General

MARY KELLER
Deputy Assistant Attorney General

RENEA HICKS
Special Assistant Attorney General

MADELEINE B. JOHNSON
Chair, Opinion Committee

Prepared by Mary R. Crouter
Assistant Attorney General

[1] Your brief suggests that because subsection (b) refers to "civil matters," the scope of subsection (c) is limited to civil matters. We disagree. Subsection (b) merely identifies the officials who are required to represent hospital districts. It does not preclude hospital districts from obtaining counsel in criminal matters. As noted above, district and county attorneys are prohibited from representing clients in criminal matters.