Texas Attorney General Opinion: LO97-065 Page: 2 of 3
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Mr. Don H. Hazelip, C.P.A. Page - 2
defense of a criminal prosecution under certain conditions, subject to a $10,000 limit,5 but we find
no similar provision applicable to county officers and employees. Accordingly, we find no legal
authority for the state's payment of the sheriff's legal fees.
You next inquire whether the commissioners court may pay the sheriff's claim. Numerous
opinions of this office have cited the following rule for determining whether a governing body may
provide for legal counsel to defend public officers and employees in litigation arising in the course
of their public duties:
When a Texas governing body believes in good faith that the public
interest is at stake, even though an officer is sued individually, it is
permissible for the body to employ attorneys to defend the action. ... The
propriety of such a step is not made dependent upon the outcome of the
litigation, but upon the bona fides of the governing body's motive.'
This common-law rule is codified in part in section 157.901 of the Local Government Code,
which authorizes the county to pay for the defense of a county official or employee under certain
circumstances. Section 157.901(a) provides that "[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." Moreover, "[i]f 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."
Thus, the authority of the county to employ attomeys o defend county officers and
employees is limited to situations where the legitimate interest of the county, not just the personal
interest of the officer or employee, is at stake.7 This is a question of fact, to be resolved by the
commissioners court in the exercise of good faith judgment.'
Both the common-law rule and section 157.901 of the Local Government Code permit only
the commissioners court to employ an attorney for the county officer and do not authorize the
5Civ. Prac. & Rein. Code 104.003.-
6Attorney General Opinions JM-824 (1987) at 2, JM-755 (1987) at i-2, MW-252 (1980) at 1, H-887 (1976)
at 2, H-70 (1973) at 5; see also Attomrney General Opinion M-726 (1970).
7Attomey General Opinion JM-824 (1987) at 2.
'You have inquired about the validity of the motion directing the sheriff to remove the fence. Since the
relevant inquiry is whether the commissioners court made a good faith determination that the county's interests required
it to defend the sheriff, we need not address your questions about the motion.(L097-065)
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Texas. Attorney-General's Office. Texas Attorney General Opinion: LO97-065, text, July 7, 1997; (https://texashistory.unt.edu/ark:/67531/metapth277248/m1/2/: accessed July 18, 2024), University of North Texas Libraries, The Portal to Texas History, https://texashistory.unt.edu.; crediting UNT Libraries Government Documents Department.