Does a Texas county have to pay to defend a judge in a judicial conduct case?

Plain-English summary

Dallas County District Attorney Susan Hawk asked the AG whether the county had to pay to defend a county judge in a disciplinary proceeding before the State Commission on Judicial Conduct. A county judge had asked the county to represent her in defending against a Commission proceeding arising from her conduct on the bench, and the county wanted to know if Local Government Code section 157.901 made that representation mandatory.

Section 157.901(a) requires a county to represent "[a] county official or employee sued by any entity, other than the county with which the official or employee serves, for an action arising from the performance of public duty." The district attorney framed the question in two parts: does the word "sued" reach a Commission disciplinary proceeding, and does an ethics violation count as "an action arising from the performance of public duty"? The AG only had to answer the first part.

The AG read "sue" and "suit" according to their ordinary legal meaning, which is to institute a lawsuit or proceeding against another party in a court of law. A related provision in the same subchapter uses "suit," and a Texas appeals court had described the Legislature's "obvious" intent in section 157.901 to refer to civil suits, noting the statute was aimed at the problem of frivolous lawsuits against county employees and the cost of their counsel. The AG also pointed out that when the Legislature wants a representation duty to cover more than court litigation, it says so expressly (using phrases like "a suit or other legal action"), and it did not use that broader language here. So the AG concluded that "sued" in section 157.901 is unlikely to reach a Commission disciplinary proceeding.

That reading fit how the Commission actually works. The State Commission on Judicial Conduct is a state agency in the judicial branch that administers judicial discipline. Although it can discipline judges, its proceedings are not criminal proceedings, and the Legislature has stated flatly that "[t]he Commission does not have the power or authority of a court." It cannot review or change a court's decision, intervene in a pending case, award damages, or by itself remove a judge from the bench. Because a Commission proceeding is not a "suit" in a court of law, the AG concluded that section 157.901(a) likely does not require a county to defend a judge before the Commission. Having resolved the matter on the meaning of "sued," the AG expressly did not reach the second question about whether an ethics violation arises from the performance of public duty.

Currency note

This opinion was issued in 2015. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. The opinion itself noted that one statute it cited, Human Resources Code section 101.055, was being redesignated by S.B. 219 in the 2015 legislative session. 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 for those who asked

Dallas County and its commissioners court (as the opinion described it): The opinion described section 157.901 as unlikely to impose a mandatory duty on the county to defend a judge in a Commission proceeding, because that proceeding is not a "suit." It described its analysis as limited to the mandatory-duty question under section 157.901(a).

County judges facing a Commission proceeding (as the opinion described it): The opinion described a Commission disciplinary proceeding as falling outside section 157.901's representation duty, so a judge in that situation could not, based on this opinion, point to section 157.901 to require the county to fund a defense.

Where the AG declined to opine: The opinion did not decide whether an alleged ethical violation qualifies as "an action arising from the performance of public duty," because the meaning of "sued" disposed of the question. It also expressly stated it did "not address whether a county commissioners court has the discretion under other authority of law to provide representation to a county judge in a proceeding before the Commission," noting case law describing that choice as one of "governmental policy and discretion." The page does not answer either question, because the AG did not.

Common questions

Does a Texas county have to pay for a judge's defense before the Commission on Judicial Conduct?
The AG concluded a court would likely say no. It read the mandatory duty in Local Government Code section 157.901 to apply when an official is "sued," and concluded that a Commission disciplinary proceeding is not a "suit" within the meaning of the statute.

Why doesn't "sued" cover a disciplinary proceeding?
Because the AG read "sue" and "suit" by their ordinary legal meaning, an action in a court of law. The AG noted that the Legislature uses broader phrases like "a suit or other legal action" when it wants a duty to reach beyond court litigation, and it did not use that broader language in section 157.901.

Is the State Commission on Judicial Conduct a court?
No. The AG emphasized that the Legislature has stated the Commission "does not have the power or authority of a court." It cannot review or change a court's ruling, intervene in a pending case, award damages, or by itself remove a judge.

Could the county still choose to pay for the judge's defense?
The AG did not say. It expressly declined to address whether a commissioners court has discretion under some other authority to provide representation, citing case law that treats the decision to provide counsel as a matter of governmental policy and discretion.

Did the AG decide whether an ethics violation "arises from public duty"?
No. Because the meaning of "sued" resolved the question, the AG stated it did not need to reach that second issue.

Background and statutory framework

The question was whether Local Government Code section 157.901 requires a county to defend a county judge in a State Commission on Judicial Conduct proceeding. A county has only the powers and duties clearly set out by the constitution and statutes (Harrison Cnty. v. City of Marshall, 253 S.W.2d 67, 69 (Tex. Civ. App.-Fort Worth 1952, writ ref'd)). Section 157.901(a) requires representation of a county official or employee "sued by any entity ... for an action arising from the performance of public duty" (Tex. Loc. Gov't Code Ann. § 157.901(a)). Courts construe statutory words by their plain and common meaning to ascertain legislative intent (Union Carbide Corp. v. Synatzske, 438 S.W.3d 39, 51 (Tex. 2014); Nathan v. Whittington, 408 S.W.3d 870, 872 (Tex. 2013); Tex. Gov't Code Ann. § 311.011(a)).

The AG read "sue" and "suit" to mean instituting a proceeding against another party in a court of law, drawing on dictionary definitions and a related provision that uses "suit" (Tex. Loc. Gov't Code Ann. § 157.9015(a)). A Texas court had recognized the Legislature's "obvious" intent in section 157.901 to refer to civil suits, aimed at frivolous lawsuits against county employees, and had noted that the word "sue" had remained largely unchanged through the statute's evolution (White v. Eastland Cnty., 12 S.W.3d 97, 102 n.4 (Tex. App.-Eastland 1999, no pet.); see Turner v. Cook, 502 S.W.2d 824, 824 (Tex. Civ. App.-Corpus Christi 1973, no writ); Condit v. Nueces Cnty., 976 S.W.2d 278, 279 (Tex. App.-Corpus Christi 1998, no pet.)). The AG observed that the Legislature uses broader language, such as "a suit or other legal action," when it intends a representation duty to extend beyond court litigation, and pointed to several such provisions (Tex. Hum. Res. Code Ann. § 101.055; Tex. Gov't Code Ann. § 45.341(a), (d); Tex. Agric. Code Ann. § 14.013; Tex. Gov't Code Ann. § 618.006). Because the Legislature made no such distinction in section 157.901, the AG concluded "sued" was unlikely to reach a Commission proceeding (FM Props. Operating Co. v. City of Austin, 22 S.W.3d 868, 885 (Tex. 2000)).

The AG then examined the Commission itself. The State Commission on Judicial Conduct is a judicial-branch state agency that administers judicial discipline (Tex. Gov't Code Ann. § 33.002(a-1); Tex. Const. art. V, § 1-a(2), (6)). Its proceedings are not criminal proceedings, and its purpose is to maintain the honor and dignity of the judiciary rather than to punish (In re Lowery, 999 S.W.2d 639, 648 (Tex. Rev. Trib. 1998, review denied)). Although some Commission proceedings resemble those in a court (Tex. Gov't Code Ann. §§ 33.022(c)(2)(A)(i), (ii); § 33.022(g)-(h); Tex. Const. art. V, § 1-a(11)), the Legislature has stated that the Commission "does not have the power or authority of a court," and the Commission cannot exercise appellate review, intervene in a pending case, award damages, or itself remove a judge (Tex. Gov't Code Ann. § 33.002(a-1); In re Rose, 144 S.W.3d 661, 672 (Tex. Rev. Trib. 2004, aff'd)). On that basis the AG concluded section 157.901(a) likely does not require a county to defend a judge before the Commission, and it did not reach the "arising from the performance of public duty" question.

Citations

Constitutional and statutory provisions:

• Tex. Const. art. V, § 1-a(2), (6), (11) (State Commission on Judicial Conduct; judicial misconduct; due process in formal proceedings)
• Tex. Loc. Gov't Code Ann. § 157.901(a) (county duty to represent officials sued for actions arising from public duty)
• Tex. Loc. Gov't Code Ann. § 157.9015(a) (related representation provision using "suit")
• Tex. Gov't Code Ann. § 33.002(a-1) (Commission does not have the power or authority of a court)
• Tex. Gov't Code Ann. § 33.022(c)(2)(A)(i), (ii), (g)-(h) (Commission investigation and formal proceedings)
• Tex. Gov't Code Ann. § 311.011(a) (words and phrases read in context and according to common usage)
• Tex. Hum. Res. Code Ann. § 101.055; Tex. Gov't Code Ann. § 45.341(a), (d); Tex. Agric. Code Ann. § 14.013; Tex. Gov't Code Ann. § 618.006 (examples of broader "suit or other legal action" language)

Cases:

• Harrison Cnty. v. City of Marshall, 253 S.W.2d 67, 69 (Tex. Civ. App.-Fort Worth 1952, writ ref'd)
• Union Carbide Corp. v. Synatzske, 438 S.W.3d 39, 51 (Tex. 2014)
• Nathan v. Whittington, 408 S.W.3d 870, 872 (Tex. 2013)
• White v. Eastland Cnty., 12 S.W.3d 97, 102 n.4 (Tex. App.-Eastland 1999, no pet.)
• FM Props. Operating Co. v. City of Austin, 22 S.W.3d 868, 885 (Tex. 2000)
• Turner v. Cook, 502 S.W.2d 824, 824 (Tex. Civ. App.-Corpus Christi 1973, no writ)
• Condit v. Nueces Cnty., 976 S.W.2d 278, 279 (Tex. App.-Corpus Christi 1998, no pet.)
• In re Lowery, 999 S.W.2d 639, 648 (Tex. Rev. Trib. 1998, review denied)
• In re Rose, 144 S.W.3d 661, 672 (Tex. Rev. Trib. 2004, aff'd)

Source

• Landing page: https://www.texasattorneygeneral.gov/opinions/ken-paxton/kp-0027
• Original PDF: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/2015/kp0027.pdf

Original opinion text

Best-effort transcription from the official PDF. Minor extraction artifacts were corrected; the linked PDF is authoritative.

KEN PAXTON
ATTORNEY GENERAL OF TEXAS

July 13, 2015

The Honorable Susan Hawk Opinion No. KP-0027
Dallas County District Attorney
Civil Section Re: Whether section 157.901 of the Local
411 Elm Street, 5th Floor Government Code requires a county to provide
Dallas, Texas 75202 representation to a county judge involved in a
disciplinary proceeding before the State
Commission on Judicial Conduct (RQ-0005-KP)

Dear Ms. Hawk:

You ask whether Dallas County has "a duty to defend a county official or employee in a disciplinary proceeding arising from an alleged ethical violation committed in the performance of public duties." [1] You explain that a county judge has asked the county to "provide representation in defending against a disciplinary proceeding before the State Commission on Judicial Conduct [the "Commission"] arising from her conduct while on the bench." Request Letter at 1. Subsection 157.901(a) of the Local Government Code requires the county to represent "[a] county official or employee sued by any entity, other than the county with which the official or employee serves, for an action arising from the performance of public duty." TEX. LOC. GOV'T CODE ANN. § 157.901(a) (West 2008). You frame your question in two parts: (1) whether the term "sued" in subsection 157.901(a) encompasses a disciplinary proceeding brought by the Commission; and (2) whether an alleged ethical violation qualifies as "an action arising from the performance of public duty" as required by the provision. Request Letter at 2-3; TEX. LOC. GOV'T CODE ANN. § 157.901(a) (West 2008).

We are guided by the principle that "[a] county has no power or duties except those which are clearly set forth and defined by the Constitution and the State statutes." Harrison Cnty. v. City of Marshall, 253 S.W.2d 67, 69 (Tex. Civ. App.-Fort Worth 1952, writ ref'd). In construing a statute, a court's "primary objective is to ascertain the Legislature's intent." Union Carbide Corp. v. Synatzske, 438 S.W.3d 39, 51 (Tex. 2014). To achieve this goal, a court will construe the words of a statute "according to their plain and common meaning unless a contrary intention is apparent" from the context of the statute. Nathan v. Whittington, 408 S.W.3d 870, 872 (Tex. 2013); see also TEX. GOV'T CODE ANN. § 311.011(a) (West 2013) (providing that "[w]ords and phrases shall be read in context and construed according to the rules of grammar and common usage"). The word "sue" means "to institute a lawsuit" against another party. BLACK'S LAW DICTIONARY 1570 (9th ed. 2009); see also id. at 967 (defining "lawsuit" by cross reference to the term "suit"), 1572 (defining "suit" as "[a]ny proceeding by a party or parties against another in a court of law"); NEW OXFORD AMERICAN DICTIONARY 1738 (3d ed. 2010) (providing that "sue" means to "institute legal proceedings" against a person or institution), 1392 (defining a "proceeding" in the context of law as an "action taken in a court to settle a dispute"). A related provision in the same subchapter uses the word "suit" in reference to the duty of a county attorney or district attorney to provide representation in section 157.901. See TEX. LOC. GOV'T CODE ANN. § 157.9015(a) (West 2008). A Texas court has acknowledged the Legislature's "obvious" intent in section 157.901 to refer "to civil suits." White v. Eastland Cnty., 12 S.W.3d 97, 102 n.4 (Tex. App.-Eastland 1999, no pet.). [2] The same court noted that the section was the Legislature's way of addressing "the problem of frivolous lawsuits against county employees and their cost of counsel." Id. at 104. The court further observed that the word "sue" has remained largely unchanged throughout the evolution of the statute. [3] See id. at 102 n.4.

The Legislature has, in analogous contexts, referred to the duty of legal representation more broadly, suggesting that it sees a distinction between litigation in a court of law and some other legal matter. For example, the attorney general is required to represent a particular public official "if a suit or other legal action is brought or threatened to be brought against that person in connection with the person's performance of the official duties of the office." TEX. HUM. RES. CODE ANN. § 101.055 (West 2013) [4] (emphasis added). Similarly, the Wharton County Attorney is required to represent the state, the county, and county officials "in civil matters." TEX. GOV'T CODE ANN. § 45.341(a), (d) (West 2004); see also TEX. AGRIC. CODE ANN. § 14.013 (West 2004) (providing that the "department may intervene in a suit . . . or any other legal action . . . ." (emphasis added)); TEX. GOV'T CODE ANN. § 618.006 (West 2012) (referring to "a suit or other legal action against an authorized officer" (emphasis added)). The Legislature made no such distinction here and evidenced no intent to give the word "suit" a broader meaning. See FM Props. Operating Co. v. City of Austin, 22 S.W.3d 868, 885 (Tex. 2000) (relying on the principle of statutory construction that the Legislature knows how to enact laws effectuating its intent). Accordingly, a court is unlikely to conclude that the Legislature intended the word "sue" in section 157.901 to extend to a disciplinary proceeding before the Commission.

This construction is supported by an examination of the proceedings of the Commission. The Commission is a state agency within the judicial branch of government charged with administering judicial discipline. TEX. GOV'T CODE ANN. § 33.002(a-1) (West Supp. 2014); see also TEX. CONST. art. V, § 1-a(2) (establishing the Commission). Judicial misconduct is "the willful or persistent violation of rules promulgated by the Supreme Court of Texas, incompetence in performing the duties of the office, willful violation of the Code of Judicial Conduct, or willful or persistent conduct that is clearly inconsistent with the proper performance of [the judge's] duties or casts public discredit upon the judiciary or administration of justice." TEX. CONST. art. V, § 1-a(6). Although the Commission may discipline a judge, its proceedings "are not considered criminal proceedings" because the function of the Commission "is not to punish; instead, its purpose is to maintain the honor and dignity of the judiciary and to uphold the administration of justice for the benefit of the citizens of Texas." In re Lowery, 999 S.W.2d 639, 648 (Tex. Rev. Trib. 1998, review denied). And while some of its proceedings may resemble those in a court of law, [5] the Legislature has unequivocally stated that "[t]he Commission does not have the power or authority of a court." TEX. GOV'T CODE ANN. § 33.002(a-1) (West Supp. 2014). "The Commission cannot exercise appellate review over a case or change the decision or ruling of any court, nor can the Commission intervene in a pending case or proceeding .... The Commission cannot award damages or provide monetary relief to complainants," nor can the Commission itself remove a judge from the bench. STATE COMM'N ON JUDICIAL CONDUCT ANNUAL REPORT, at 7 (2014); see also In re Rose, 144 S.W.3d 661, 672 (Tex. Rev. Trib. 2004, aff'd) (stating that the Commission's "reports are considered authoritative" on the judicial disciplinary process).

Because a court is unlikely to conclude that the term "sued" in subsection 157.901(a) of the Local Government Code encompasses a disciplinary proceeding of the Commission on Judicial Conduct, subsection 157.901(a) likely does not require a county to defend a judge in a proceeding before the Commission. [6] Given this conclusion, we need not address whether an alleged ethical violation qualifies as "an action arising from the performance of public duty."

SUMMARY

Because a court is unlikely to conclude that the term "sued" in subsection 157.901(a) of the Local Government Code encompasses a disciplinary proceeding of the Commission on Judicial Conduct, subsection 157.901(a) likely does not require a county to defend a judge in a proceeding before the Commission.

Very truly yours,

KEN PAXTON
Attorney General of Texas

CHARLES E. ROY
First Assistant Attorney General

BRANTLEY STARR
Deputy Attorney General for Legal Counsel

VIRGINIA K. HOELSCHER
Chair, Opinion Committee

BECKY P. CASARES
Assistant Attorney General, Opinion Committee

[1] Letter from Honorable Susan Hawk, Dallas Cnty. Dist. Att'y, Civil Section, to Honorable Ken Paxton, Tex. Att'y Gen. at 1 (Jan. 13, 2015), https://www.texasattorneygeneral.gov/opinion/requests-for-opinion-rqs ("Request Letter").

[2] As a whole, cases considering section 157.901 have been limited to those clearly involving either civil or criminal suits in a court of law. See, e.g., Turner v. Cook, 502 S.W.2d 824, 824 (Tex. Civ. App.-Corpus Christi 1973, no writ) (involving a suit against the county and its officials); Condit v. Nueces Cnty., 976 S.W.2d 278, 279 (Tex. App.-Corpus Christi 1998, no pet.) (concerning a suit in federal court); White, 12 S.W.3d at 102 n.4 (concluding that a "suit" in section 157.901 does not include a criminal indictment).

[3] As the court noted, "[t]he phrase 'in a suit instituted by a non-political entity' in [Texas Revised Civil Statutes article 332c, the original predecessor of section 157.901,] was changed to '[a] county official or employee sued by a nonpolitical entity' in Section 157.061 in 1987, and then changed to '[a] county official or employee sued by any entity, other than the county with which the official or employee serves' in the current Section 157.901 in 1989." White, 12 S.W.3d at 102 n.4.

[4] Redesignated by Act of Mar. 30, 2015, 84th Leg., R.S., S.B. 219, § 4.361, sec. 101A.256 (to be codified at TEX. HUM. RES. CODE ANN. § 101A.256) (effective immediately).

[5] See, e.g., TEX. GOV'T CODE ANN. §§ 33.022(c)(2)(A)(i), (ii) (West 2004) (authorizing the Commission, during a full investigation, to order the judge to "submit a written response" to allegations and "appear informally before the commission"), 33.022(g)-(h) (describing the institution of "formal proceedings," at which time "the matter shall be entered in a docket" and a notice sent to the judge that specifies "the charges against the judge and the alleged facts" on which they are based); TEX. CONST. art. V, § 1-a(11) (entitling a judge subject to a Commission formal proceeding to "the right of discovery of evidence" and "due process of law," including "the right to notice, counsel, hearing, confrontation of his accusers, and all such other incidents of due process as are ordinarily available in proceedings . . . upon proof of which a penalty may be imposed").

[6] You ask only about a county's duty under subsection 157.901(a) and our opinion is limited accordingly. We do not address whether a county commissioners court has the discretion under other authority of law to provide representation to a county judge in a proceeding before the Commission. See White, 12 S.W.3d at 104 (holding that "the decision to provide or not provide counsel is one of governmental policy and discretion").