Does a Texas county have to pay for a county employee's lawyer in a lawsuit?

Plain-English summary

Dallas County District Attorney Susan Hawk asked the AG about the county's duty to pay for a former employee's defense. A former detention service officer had asked Dallas County to hire and pay for private counsel to defend him in a federal civil suit. The suit alleged that, while he worked for the county, the officer had an improper sexual relationship with an inmate of the county jail, and that same alleged conduct was the basis of a criminal charge the district attorney had brought against him in state court. The question was whether the commissioners court had a legal duty under Local Government Code section 157.901(a) and (b) to pay for his private lawyer in the civil case.

The AG read subsections (a) and (b) together. Subsection (a) entitles a county official or employee who is "sued by any entity, other than the county," for "an action arising from the performance of public duty" to representation by the district or county attorney. Subsection (b) is the one that can require the county to provide private counsel, either when additional counsel is necessary or proper, or when it reasonably appears the act complained of may form the basis for a criminal charge. But subsection (b) builds on subsection (a), so the duty to pay for private counsel arises only when the underlying suit is one "arising from the performance of public duty."

That phrase did the heavy lifting. The AG explained that "arising from" requires a legal nexus between the conduct the suit is about and the employee's performance of public duty. A court is unlikely to treat a claim for injury caused by a public servant acting wholly outside the course and scope of the job as "arising from the performance of public duty." The AG illustrated the point with a case in which a district attorney had no duty under section 157.901 to represent a justice of the peace in a civil proceeding based on an indecent-exposure charge, because the charge did not arise out of public duty.

The AG layered a constitutional limit on top. Article III, section 52(a) of the Texas Constitution bars the Legislature from authorizing a county to give away public funds for private purposes, so section 157.901 has to be read consistently with that limit. Prior opinions had concluded that a county cannot constitutionally pay for private legal representation of its officials or employees unless its governing body determines the payment serves a legitimate interest of the county, not merely the private interest of the individual. Putting it together, the AG concluded section 157.901 requires a commissioners court to fund private counsel only when the official or employee was sued for an action arising from public duty and the commissioners court determines in good faith that the representation serves a legitimate county interest. Whether that test is met in a given case, the AG stressed, is a fact question for the commissioners court in the first instance, subject to judicial review.

Currency note

This opinion was issued in 2015. 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 for those who asked

The Dallas County commissioners court and the district attorney (as the opinion described it): The opinion described the commissioners court, not the AG, as the body that decides in the first instance (subject to court review) whether a suit "arises from the performance of public duty" and whether paying for private counsel serves a legitimate county interest. It described section 157.901 as imposing a duty to pay only when both conditions are met, and it did not decide whether the specific suit here met them.

County officials and employees (and former employees) (as the opinion described it): The opinion described the right to county-paid private counsel as tied to being sued for conduct connected to public duty. On the "former employee" point, the AG noted no court had decided whether section 157.901 reaches former employees, but stated it was unlikely a court would let a county avoid the duty simply because the person was terminated or resigned after the conduct underlying the suit. It described conduct "wholly outside the course and scope" of the public position as unlikely to qualify.

Where the AG declined to decide: The opinion did not rule on whether the former officer's particular suit arose from the performance of public duty, treating that as a fact question for the commissioners court. It also expressly framed its question as the county's mandatory duty under section 157.901, "not its discretionary authority to employ private counsel," and noted no judicial opinion had construed whether section 157.901 applies to a former employee. The page does not supply those answers, because the AG left them open.

Common questions

Does a Texas county automatically have to pay for an employee's lawyer when the employee is sued?
No. The AG concluded the duty under section 157.901 is conditional. The county must pay for private counsel only if the employee was sued for an "action arising from the performance of public duty" and the commissioners court determines in good faith that paying serves a legitimate interest of the county.

What does "arising from the performance of public duty" mean here?
The AG read it to require a legal connection between the conduct the lawsuit is about and the employee's public duties. A claim based on conduct wholly outside the scope of the job is unlikely to qualify; the opinion pointed to a case where a justice of the peace's indecent-exposure charge did not arise from public duty, so there was no duty to represent him.

Who decides whether a particular lawsuit qualifies?
The commissioners court, in the first instance and subject to judicial review. The AG emphasized that no court decision lays out how a commissioners court is to make that determination, and that whether paying serves the county's legitimate interest "is always a question of fact" for the county's governing body.

Does it matter that the person no longer works for the county?
The AG noted that no court had decided whether section 157.901 covers former employees. It predicted a court would be unlikely to let a county dodge the duty just because the person left after the conduct that gave rise to the suit, but it did not definitively resolve the former-employee question.

Why does the Texas Constitution come into this?
Article III, section 52(a) prohibits using public funds for purely private purposes. The AG explained that section 157.901 must be read in light of that limit, so a county cannot be required to pay for representation that serves only the private interest of the individual rather than a legitimate interest of the county.

Background and statutory framework

The request concerned Local Government Code section 157.901, which addresses a county's duty to provide legal representation to its officials and employees. Subsection (a) entitles a county official or employee "sued by any entity, other than the county," for "an action arising from the performance of public duty" to be represented by the district attorney, the county attorney, or both. Subsection (b) addresses private counsel: it can require the county to provide additional private counsel when necessary or proper, or when "it reasonably appears that the act complained of may form the basis for the filing of a criminal charge" (Tex. Loc. Gov't Code Ann. § 157.901(a)-(b) (West 2008)). Because subsection (b) refers to and builds on subsection (a), the AG construed them together, so the duty to provide private counsel arises only where a county official or employee "has been sued ... for an action arising from the performance of public duty" (White v. Eastland Cnty., 12 S.W.3d 97, 101-02 (Tex. App.-Eastland 1999, no pet.)).

The AG placed the threshold determination with the commissioners court, because subsection (b) puts the duty to employ or pay for counsel on that body; the commissioners court therefore decides in the first instance, subject to judicial review, whether a suit arises from the performance of public duty (Tex. Loc. Gov't Code Ann. § 157.901(b)). A prior opinion construing the predecessor statute had explained that the suits "must concern events occurring during the course of the public servant's performance of public duties within the scope of the authority of the public office or position," and the AG read the current "arising from" language to require a legal nexus between the action and the performance of public duty (Tex. Loc. Gov't Code Ann. § 157.901(a)). A court is not likely to treat an action as arising from public duty when it is based on a public servant acting wholly outside the course and scope of the position (In re Reed, 137 S.W.3d 676, 679-80 (Tex. App.-San Antonio 2004, orig. proceeding)).

The AG also recognized a constitutional limit. A statute may not impose a duty the constitution prohibits (Tex. Mun. League Intergov'l Risk Pool v. Tex. Workers' Comp. Comm'n, 74 S.W.3d 377, 381 (Tex. 2002); City of Pasadena v. Smith, 292 S.W.3d 14, 19 (Tex. 2009)). Article III, section 52(a) prohibits the Legislature from authorizing a county to gratuitously grant public funds for private purposes (Tex. Const. art. III, § 52(a)). Read together with that limit, section 157.901 does not require a commissioners court to pay for private representation in a case where the payment does not serve a legitimate interest of the county, and whether it does is "always a question of fact" for the county's governing body acting in good faith. The opinion's nexus discussion drew on cases construing similar "arising from" language (LeLeaux v. Hamshire-Fannett Indep. Sch. Dist., 835 S.W.2d 49, 51 (Tex. 1992); TDIndus., Inc. v. Rivera, 339 S.W.3d 749, 754 (Tex. App.-Houston [1st Dist.] 2011, no pet.); Tex. & Pac. Ry. Co. v. Hagenloh, 247 S.W.2d 236, 239 (Tex. 1952)). The former article 332c of the Revised Civil Statutes, the predecessor provision, had required representation in a suit involving "any act of the official or employee while in the performance of public duties" (Act of May 30, 1977, 65th Leg., R.S., ch. 414, § 2, 1977 Tex. Gen. Laws 1116, 1116 (repealed 1987)).

Citations

Constitutional and statutory provisions:

• Tex. Const. art. III, § 52(a) (no gratuitous grant of public funds for private purposes)
• Tex. Loc. Gov't Code Ann. § 157.901(a)-(b) (county duty to provide legal representation; private counsel)
• Act of May 30, 1977, 65th Leg., R.S., ch. 414, § 2, 1977 Tex. Gen. Laws 1116, 1116 (repealed 1987) (former Revised Civil Statute article 332c)

Cases:

• White v. Eastland Cnty., 12 S.W.3d 97, 101-02 (Tex. App.-Eastland 1999, no pet.)
• In re Reed, 137 S.W.3d 676, 679-80 (Tex. App.-San Antonio 2004, orig. proceeding)
• Tex. Mun. League Intergov'l Risk Pool v. Tex. Workers' Comp. Comm'n, 74 S.W.3d 377, 381 (Tex. 2002)
• City of Pasadena v. Smith, 292 S.W.3d 14, 19 (Tex. 2009)
• LeLeaux v. Hamshire-Fannett Indep. Sch. Dist., 835 S.W.2d 49, 51 (Tex. 1992)
• TDIndus., Inc. v. Rivera, 339 S.W.3d 749, 754 (Tex. App.-Houston [1st Dist.] 2011, no pet.)
• Tex. & Pac. Ry. Co. v. Hagenloh, 247 S.W.2d 236, 239 (Tex. 1952)

Prior Attorney General opinions referenced:

• Tex. Att'y Gen. Op. Nos. GA-0104 (2003), JC-0294 (2000), DM-488 (1998), JM-1276 (1990), JM-755 (1987)

Source

• Landing page: https://www.texasattorneygeneral.gov/opinions/ken-paxton/kp-0031
• Original PDF: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/2015/kp0031.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

August 10, 2015

The Honorable Susan Hawk Opinion No. KP-0031
Dallas County District Attorney
Frank Crowley Courts Building Re: Duty of a county to provide legal
133 North Riverfront Boulevard, LB 19 representation for a former county employee
Dallas, Texas 75207-4399 under subsections 157.901(a) and (b) of the
Local Government Code (RQ-0011-KP)

Dear Ms. Hawk:

You state that a former detention service officer has asked Dallas County "to employ and pay for private legal counsel to represent him in a civil suit" in federal court based on allegations that the officer had an "improper sexual relationship with an inmate of the Dallas County Jail" while employed by the county. [1] You further state that the alleged misconduct is the basis of a pending criminal charge in state court that your office has brought against the officer. Request Letter at 1. You ask whether "the Dallas County Commissioners Court [has] a legal duty to employ and pay for private legal counsel to represent the [detention service officer] in the civil suit under [Texas Local Government Code subsections] 157.901(a) and (b)[.]" Id. [2]

Subsections 157.901(a) and (b) provide:

(a) 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 is entitled to be represented by the district attorney of the district in which the county is located, the county attorney, or both.

(b) If additional counsel is necessary or proper in the case of an official or employee provided legal counsel under Subsection (a) or if it reasonably appears that the act complained of may form the basis for the filing of a criminal charge against the official or employee, the official or employee is entitled to have the commissioners court of the county employ and pay private counsel.

TEX. LOC. GOV'T CODE ANN. § 157.901(a)-(b) (West 2008). A county's duty to provide private legal counsel is addressed in subsection (b). See id. § 157.901(b). Subsection (b) expressly refers to subsection (a) and, therefore, subsections (a) and (b) must be construed together. White v. Eastland Cnty., 12 S.W.3d 97, 101-02 (Tex. App.-Eastland 1999, no pet.). When a district or county attorney is providing representation in a suit described in subsection (a), subsection (b) may require the county to provide additional private counsel. TEX. LOC. GOV'T CODE ANN. § 157.901(b) (West 2008). Also, in an apparent attempt to avoid conflicts of interest, subsection (b) may require a county to provide private counsel when "it reasonably appears that the act complained of may form the basis for the filing of a criminal charge." Id. The "act complained of" refers to the acts that serve as the basis of a suit described in subsection (a). See id.; White, 12 S.W.3d at 102. Consequently, in either circumstance, subsection 157.901(b) requires a commissioners court to provide private counsel only when a county official or employee has been "sued . . . for an action arising from the performance of public duty." TEX. LOC. GOV'T CODE ANN. § 157.901(a) (West 2008). [3]

Because the duty to employ or pay for legal representation in subsection 157.901(b) is placed on the commissioners court, it is the commissioners court that must determine, in the first instance and subject to judicial review, whether a suit against an official or employee "aris[es] from the performance of public duty" such that the county is required to employ and pay private counsel. Id. § 157.901(b). No judicial opinion of which we are aware, however, states how a commissioners court is to determine whether a particular suit involves "an action arising from the performance of public duty." A prior opinion of this office addressing the predecessor statute to section 157.901 explained that the "suits must concern events occurring during the course of the public servant's performance of public duties within the scope of the authority of the public office or position." Tex. Att'y Gen. Op. No. JM-755 (1987) at 5 (construing former Revised Civil Statute article 332c). [4] While the provision was reworded in a non-substantive recodification, the phrase "arising from" in section 157.901(a) as it is currently written plainly requires a legal nexus between the "action" that is the basis of the suit and the public servant's "performance of public duty." TEX. LOC. GOV'T CODE ANN. § 157.901(a) (West 2008). [5] A court is not likely to construe an "action arising from the performance of public duty" as including a claim for injury caused by a public servant acting wholly outside the course and scope of the servant's public position. See In re Reed, 137 S.W.3d 676, 679-80 (Tex. App.-San Antonio 2004, orig. proceeding) (stating that district attorney had no duty under section 157.901 to represent a justice of the peace in a civil proceeding based on an indecent exposure charge, because it was undisputed that the charge did not "aris[e] out of the performance of public duty"). [6]

Moreover, a statute may not grant authority or impose a duty that the Texas Constitution prohibits. See Tex. Mun. League Intergov'l Risk Pool v. Tex. Workers' Comp. Comm'n, 74 S.W.3d 377, 381 (Tex. 2002). Thus, section 157.901 must be construed in light of any applicable constitutional limitations. City of Pasadena v. Smith, 292 S.W.3d 14, 19 (Tex. 2009). Article III, section 52(a) of the Texas Constitution prohibits the Legislature from authorizing a county to gratuitously grant public funds for private purposes. TEX. CONST. art. III, § 52(a). Prior opinions of this office explain that a county or other political entity cannot constitutionally pay to provide private legal representation of its officials or employees unless the entity's governing body determines that the payment serves a legitimate interest of the entity, not merely the private interest of the official or employee. See, e.g., Tex. Att'y Gen. Op. Nos. GA-0104 (2003) at 3; JC-0294 (2000) at 2-3; DM-488 (1998) at 2-3. Thus, section 157.901, when read in light of article III, section 52(a) of the Texas Constitution, does not require a commissioners court to pay for private legal representation of a county official or employee in a particular case when such payment does not serve a legitimate interest of the county. Whether paying public funds to provide a county official or employee with private legal representation will serve the legitimate interests of the county "is always a question of fact that must await the good faith determination of the governing body of the county ... in light of all relevant facts." Tex. Att'y Gen. Op. No. JM-1276 (1990) at 11.

In sum, section 157.901 of the Local Government Code does not require a commissioners court to employ private counsel to provide legal representation for a county official or employee unless the official or employee has been sued for an "action arising from the performance of public duty," and the commissioners court determines in good faith that such representation serves a legitimate interest of the county, not merely the private interest of the individual.

SUMMARY

Section 157.901 of the Local Government Code does not require a commissioners court to employ private counsel to provide legal representation for a county official or employee unless the official or employee has been sued for an "action arising from the performance of public duty," and the commissioners court determines in good faith that such representation serves a legitimate interest of the county, not merely the private interests of the individual.

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

WILLIAM A. HILL
Assistant Attorney General, Opinion Committee

[1] Letter from Honorable Susan Hawk, Dallas Cnty. Dist. Att'y, to Honorable Ken Paxton, Tex. Att'y Gen. at 1 (Feb. 10, 2015), https://www.texasattorneygeneral.gov/opinion/requests-for-opinion-rqs ("Request Letter").

[2] Your question is about a commissioners court's duty to provide legal representation under section 157.901 of the Texas Local Government Code, not its discretionary authority to employ private counsel.

[3] You characterize the detention service officer's employment status as "former," although you do not state when his employment ended. Request Letter at 1. Section 157.901 expressly applies only to a "county official or employee sued ... for an action arising from the performance of public duty." TEX. LOC. GOV'T CODE ANN. § 157.901(a) (West 2008). Although no judicial opinion has construed whether section 157.901 would apply to a former employee, it is unlikely that a court would allow a county to avoid its duty to fund representation of an official or employee because the official or employee was terminated or resigned after the action that serves as the basis of the suit occurred.

[4] Former article 332c of the Revised Civil Statutes stated that a county was required to provide representation in a suit against a county official or employee "if the suit involves any act of the official or employee while in the performance of public duties." Act of May 30, 1977, 65th Leg., R.S., ch. 414, § 2, 1977 Tex. Gen. Laws 1116, 1116 (repealed 1987).

[5] See LeLeaux v. Hamshire-Fannett Indep. Sch. Dist., 835 S.W.2d 49, 51 (Tex. 1992) (construing the phrase "aris[ing] from" in the Texas Tort Claims Act's waiver for injury arising from certain acts as requiring a nexus between the injury and the act); TDIndus., Inc. v. Rivera, 339 S.W.3d 749, 754 (Tex. App.-Houston [1st Dist.] 2011, no pet.) (examining pleadings to determine if a negligence claim "aris[es] out of the provision of professional services" under subsection 1001.003(c) of the Occupations Code).

[6] Cf. Tex. & Pac. Ry. Co. v. Hagenloh, 247 S.W.2d 236, 239 (Tex. 1952) ("It is not ordinarily within the scope of a servant's authority to commit an assault on a third person.").