Can a Texas county pay an official's legal fees for fighting an election contest?

Plain-English summary

A Frio County sheriff narrowly won his party's primary runoff, beating his opponent by 168 votes. The opponent then filed an election contest, a lawsuit challenging the result. The sheriff hired his own lawyer and won, but the court refused to make the loser pay his legal bill. The sheriff then asked the county to reimburse his attorney's fees, and the county attorney asked the Attorney General whether the county was allowed to do that.

The answer was no. Beyond the fact that no statute required the county to pay, the Attorney General said the Texas Constitution (article III, sections 50, 51, and 52) flatly prohibits it. Those provisions stop a government from spending public funds, including on lawyers, except to serve the government's own legitimate interests. Usually whether a lawsuit involves the government's interests or just an official's personal interests is a fact question the office leaves to the governmental body. But an election contest, the opinion held, is categorically different: it is the final step in deciding which candidate won an office, so it concerns the candidate's personal interest in holding the office, not the county's. For that reason a county is always barred, as a matter of law, from paying or reimbursing an official's attorney's fees in an election contest.

The opinion rejected the sheriff's specific arguments. Being the incumbent who had just been "reelected" did not "oblige" him to defend the contest any more than running for office in the first place; either way he was acting as a candidate, not as a county official. And his claim that the contest threatened county officials failed because those officials were never parties and faced no possible judgment, and the county attorney had already appeared to protect the county's interests. The argument that the sheriff's win saved the county the cost of a new runoff also failed: in an election contest the county's interest is that justice be done, not that any particular candidate win.

Currency note

This opinion was issued in 1997. 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.

What the opinion meant at the time

For counties and other local governments: The opinion drew a bright line. Whatever the usual case-by-case approach to paying an official's legal fees, an election contest was off limits: a governmental entity was precluded as a matter of law from paying or reimbursing an officeholder's attorney's fees incurred in one.

For officeholders facing an election contest: The opinion treated the contest as part of the candidate's own electoral effort. A winner kept the office while the contest was pending (Elec. Code § 221.015), so the office's functioning was not threatened, and the officeholder's stake was personal, not governmental.

On a related but different situation: The opinion distinguished Chandler v. Saenz, where a city was allowed to pay attorney's fees in a suit that, if successful, would have removed a majority of the city's aldermen and disrupted the council. That was not a contest between individual candidates but a threat to the governing body itself, so the city's own interests were at stake.

Common questions

Why can't a county just reimburse an official who wins an election contest?

Because the Texas Constitution (article III, sections 50, 51, and 52) lets a government spend public money only for the government's own legitimate interests. The opinion concluded an election contest is about the candidate's personal stake in the office, so paying or reimbursing those fees is not a permitted public expenditure.

Did it matter that the sheriff won and that the court would not award his fees?

No. The opinion turned on whose interests the lawsuit served, not on the outcome. Because an election contest concerns the candidate personally, the county could not pick up the bill regardless of who won.

What if a lawsuit threatens to remove a whole governing body, not just settle who won an office?

That is a different situation. The opinion pointed to Chandler v. Saenz, where a suit would have disqualified a majority of a city council and disrupted its functions. There the government's own interests were at stake, so public funds could be used.

Could a county ever pay an official's legal fees in some other kind of case?

The opinion did not address every scenario. It said that, as a general matter, whether a lawsuit involves the government's interests is a fact question usually left to the governmental entity. Its categorical bar was specific to election contests.

Background and statutory framework

Article III, sections 50, 51, and 52 of the Texas Constitution restrict a governmental entity's use of public funds, including its authority to employ counsel, to situations where the entity's own legitimate interests (not merely the personal interests of an officer or employee) require a legal defense. Attorney General Opinion DM-107 (1992) had explained that the nature of the interests at stake is usually a fact question left to the governmental body in the first instance.

For election contests, the opinion relied on Attorney General Opinion JM-685 (1987), which concluded a school district could not use public funds to defend a school board member in an election contest. A successful candidate takes office and may hold it pending the contest's resolution (Elec. Code § 221.015), so the contest does not disable the governing body, and the contest is the last step by which an individual establishes that he was elected, a personal matter. Courts in other states had reached the same result, and the Texas case Chandler v. Saenz recognized the same principle while allowing city funds in a suit that threatened the governing body itself rather than pitting candidates against each other. Applying this framework, the opinion held a county is barred as a matter of law from reimbursing a candidate for sheriff's nomination for attorney's fees incurred in an election contest.

Citations

Constitution and statutes

• Tex. Const. art. III, §§ 50, 51, 52
• Elec. Code § 221.015

Cases

• Chandler v. Saenz, 315 S.W.2d 87 (Tex. Civ. App.-San Antonio 1958, writ ref'd n.r.e.)

Attorney General opinions referenced

• DM-107 (1992); JM-685 (1987)

Source

• Landing page: https://www.texasattorneygeneral.gov/opinions/dan-morales/dm-0431
• Original PDF: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1997/dm0431.pdf

Original opinion text

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

DAN MORALES
ATTORNEY GENERAL

Office of the Attorney General
State of Texas

January 29, 1997

The Honorable James Warren Smith, Jr.
Frio County Attorney
500 East San Antonio, Box 1
Pearsall, Texas 78061-3100

Opinion No. DM-431

Re: Whether a county is authorized to reimburse attorney's fees incurred in defending an election contest suit to a candidate for a political party's nomination for sheriff (RQ-914)

Dear Mr. Smith:

You ask whether Frio County (the "county") is authorized to reimburse the sheriff for attorney's fees he incurred in defending an election contest suit. You explain that the incumbent sheriff had several opponents in the March 1996 Democratic Party primary election and "was forced into a [r]un-[o]ff [e]lection in April, 1996." The victor of the runoff election was to run unopposed in the November 1996 general election. The incumbent sheriff prevailed over his opponent by 168 votes. The opponent filed an election contest against the sheriff. The sheriff was represented by private counsel and you represented the county clerk as an "unnamed defendant/contestee." The lawsuit was resolved in favor of the incumbent sheriff, but the court explicitly refused to award attorney's fees to the prevailing party. The sheriff's attorney has now presented a claim to the county on behalf of the sheriff seeking reimbursement for his attorney's fees in the election contest suit.

We agree with your analysis that none of the statutes you mention requires the county to reimburse the sheriff for his attorney's fees in the election contest.[1] Moreover, we believe that the county is prohibited from doing so by the Texas Constitution, see Tex. Const. art. III, §§ 50, 51, 52, which limits the authority of a governmental entity to employ counsel to situations where legitimate interests of the governmental entity, not just the personal interests of an officer or employee, require assertion of a legal defense. Attorney General Opinion DM-107 (1992) at 3. As a general matter, the nature of the interests at stake involves questions of fact and therefore this office usually defers to the governmental entity to decide in the first instance whether the matter at issue in a particular lawsuit concerns the interests of the governmental entity or whether the expenditure of public funds would only benefit the officer or employee. Id. at 4. For the reasons stated below, however, we believe election contests involve personal interests of the candidate, not interests of the governmental entity or the public interest, and that a governmental entity will always be precluded from paying for the attorney's fees of an official in an election contest, or reimbursing an official for such attorney's fees, as a matter of law.

In Attorney General Opinion JM-685, this office considered whether a school district was authorized to use public funds to defend a school board member in an election contest suit. This office concluded that the election contest against the successful school board member candidate did not involve the legitimate interests of the school board. First, the opinion noted, a successful candidate who is the subject of an election contest takes office and is entitled to occupy the office pending the resolution of the suit. See Attorney General Opinion JM-685 (1987) at 2-3 (citing Elec. Code § 221.015). Therefore, the election contest did not affect the ability of the school board to convene a quorum or otherwise conduct its business. Second, and more importantly, this office opined that "[t]he election contest in this case is the last step of the process by which an individual establishes that he has been elected trustee. It is difficult to justify on any grounds a school district's financial support of one contender in an election contest. The courts of other states have held that an individual officer's legal expenses in an election contest may not be paid from public funds." Id. at 4; see also id. at 4-5 (citing cases from other jurisdictions).

Although we have found no Texas case directly on point, Chandler v. Saenz, 315 S.W.2d 87 (Tex. Civ. App.-San Antonio 1958, writ ref'd n.r.e.), also recognizes this principle. In allowing the city council to use city funds to pay attorney's fees in the defense of a suit disputing the proper statute governing the election of city officers, the court stated: "This is not an election contest between parties as individuals, but a suit for injunction against the governing body of said city, the effect of which would be to disqualify and remove from office a majority of the city aldermen and thereby disrupt the lawful functions of the city council." Id. at 89-90.

Here, as in Attorney General Opinion JM-685, the arguments for the position that the election contest involved legitimate interests of the county as opposed to the sheriff's personal interests as a candidate for office are not persuasive and thus ultimately support our conclusion that reimbursement of officials for attorney's fees incurred in election contests from public funds is impermissible as a matter of law.

In his letter requesting reimbursement from the county, the sheriff's attorney suggests that the sheriff, as an incumbent who had been "reelected" by the voters in the runoff, was "obliged" to defend his position. As Attorney General Opinion JM-685 suggests, however, an election contest of a primary election or runoff is the last step of the process by which an individual runs for party nomination and establishes that he is the party nominee. The sheriff was no more legally obliged to defend the election contest than he was to run for election or reelection, and the election contest did not involve interests of the sheriff as a county official but rather as a candidate for office.

The sheriff's attorney also argues that the election contest involved legitimate interests of the county because the contestant attacked the county clerk, election supervisor, and other county officials. These individuals were not parties to the suit and there was no possibility of a judgment against them or the county. Furthermore, we note that you filed an answer on behalf of the county clerk as an "unnamed defendant/contestee" and therefore appear to have represented any interests of the county in the suit.

Finally, the argument that the sheriff's successful defense of the suit saved the county the expense of holding a new runoff election must fail. In any election contest, it is the interest of the authority holding the election that justice be served, not that one candidate prevail over another. In this case, as in all others, it would have served the electorate's interests, and thus county's interests, to hold a new runoff election if the court had found a basis to void the contested election.[2]

SUMMARY

A county is prohibited from reimbursing a candidate for a political party's nomination for sheriff for attorney's fees incurred in defending an election contest suit. See Tex. Const. art. III, §§ 50, 51, 52.

DAN MORALES
Attorney General of Texas

JORGE VEGA
First Assistant Attorney General

SARAH J. SHIRLEY
Chair, Opinion Committee

Prepared by Mary R. Crouter
Assistant Attorney General

Footnotes

[1] Civil Practice and Remedies Code chapter 38 governs recovery of attorney's fees in a civil action and is not applicable to the sheriff's submission of his claim for reimbursement to the county. Civil Practice and Remedies Code section 102.002 authorizes a local government to pay actual damages and attorney's fees awarded against an employee or officer if the damages or fees award "result from an act or omission . . . in the course and scope of . . . employment for the local government [and] arise from a cause of action for negligence." Civ. Prac. & Rem. Code § 102.002(a)(1), (2). The election contest does not arise from the sheriff's official duties nor is it a cause of action for negligence. Similarly, Local Government Code section 157.903, which authorizes a county to indemnify a county officer against personal liability for loss of county funds or loss of or damage to personal property, is inapplicable to the situation at issue. See also note 2 infra.

[2] The sheriff's quantum meruit argument must fail because, as we have established, his attorneys did not perform services that benefited the county. Furthermore, even if the county could be said to have entered into an implied contract to pay for the attorneys' services in the election contest, it was constitutionally prohibited from doing so.