Texas Attorney General Opinion: GA-0755 Page: 2 of 3
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The Honorable Lynda K. Russell - Page 2 (GA-0755)
(Vernon Supp. 2009) ("State Liability; Persons Covered"), 104.0035 (Vernon 2005) ("State Liability;
Criminal Prosecution"). This issue was addressed in a recent attorney general opinion. See Tex.
Att'y Gen. Op. No. GA-0523 (2007) at 1-2 (explaining that "a criminal district attorney must be
considered to be an employee or officer of a 'state agency, institution, or department' for chapter 104
to apply") (quoting TEX. CIV. PRAC. & REM. CODE ANN. 104.001(1) (Vernon Supp. 2009)). That
opinion concluded that a criminal district attorney was not a covered person under section 104.001.
See id. As the court in Hill County v. Sheppard, 178 S.W.2d 261 (Tex. 1944) explains, a criminal
district attorney is simply a "class or kind" of district attorney. 178 S.W.2d at 263; see also Tex.
Att'y Gen. Op. No. GA-0523 (2007) at 2 (citing to Hill County v. Sheppard). Finding no case law
that construes section 104.001 differently, we reaffirm Attorney General Opinion GA-0523's
conclusion that a district attorney is not a covered person under section 104.001. The State has no
duty to indemnify a district attorney under Texas Civil Practice and Remedies Code sections 104.001
and 104.0035.
Your third question asks whether Code of Criminal Procedure article 59.06(c)(1) authorizes
the use of asset forfeiture funds to pay for a district attorney's civil legal defense. Request Letter
at 3, 7. Article 59.06(c)(1) provides that when an attorney representing the state executes a local
agreement with a law enforcement agency, the attorney may deposit forfeiture funds into "a special
fund in the county treasury for the benefit of the office of the attorney representing the state, to be
used by the attorney solely for the official purposes of his office." TEX. CODE CRIM. PROC. ANN. art.
59.06(c)(1) (Vernon Supp. 2009) (emphasis added). You conclude that "[w]hen the elected
prosecutor has been sued civilly for acts done while in the performance of her official duties ... that
the defense expenditure is" an "official purpose" of the office. Request Letter at 7.
In a recent opinion, this office examined the kind of expenditures that are "solely for the
official purposes" of the district attorney's office. See Tex. Att'y Gen. Op. No. GA-0613 (2008) at
6-8. We concluded in that opinion that only those expenditures related to the district attorney's
duties and functions as delineated by statute or the constitution constitute permissible expenditures
under article 59.06(c)(1). See id. In that way, the opinion adopted a narrow construction of the
phrase "official purpose." See id. at 5-6 (rejecting a broad construction of the statute that would
include any expenditure that fell short of an expenditure for a private purpose).
We find no provision of state law that addresses a district attorney's duty or function to pay
for her own legal defense in a civil suit, and thus, it follows that the payment of such costs is not an
official purpose of that office within the meaning of article 59.06(c)(1). Accordingly, we conclude
that forfeiture funds may not be used under Code of Criminal Procedure article 59.06(c)(1) to pay
for a district attorney's own civil legal defense.2
2Finally, you ask about the indemnification protection, if any, available to a district attorney's support staff in
a civil suit. See Request Letter at 3. Because the issue raised in your fourth question is not briefed and because this issue
is characterized by you as being "subsumed" in your first three questions, we do not separately address your fourth
question. Id. at 3, n. 1.
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Texas. Attorney-General's Office. Texas Attorney General Opinion: GA-0755, text, January 20, 2010; (https://texashistory.unt.edu/ark:/67531/metapth275651/m1/2/: accessed July 12, 2024), University of North Texas Libraries, The Portal to Texas History, https://texashistory.unt.edu.; crediting UNT Libraries Government Documents Department.