Who pays for a Texas district attorney's legal defense when she is sued for civil rights violations on the job?

TX AG Opinion GA-0755: Must a county or the state pay a district attorney's civil defense, and can forfeiture funds be used?

Plain-English summary

A Shelby County district attorney asked the Attorney General who, if anyone, has to pay for her legal defense when she is sued in a federal civil rights lawsuit under 42 U.S.C. § 1983 for actions taken in the course and scope of her official duties. She raised three main avenues: the county, the state, and asset forfeiture funds.

The Attorney General closed off all three. On the county: Local Government Code section 157.901 entitles certain county officials and employees to representation, but a district attorney is a district officer, not a county officer, and prior opinions had consistently read the statute that way. So a county commissioners court has no duty under section 157.901 to pay a district attorney's civil defense.

On the state: Civil Practice and Remedies Code sections 104.001 and 104.0035 govern state indemnification, but a prior opinion (GA-0523) had concluded that a district attorney is not a covered person under section 104.001, which requires the person to be an officer or employee of a state agency, institution, or department. The opinion reaffirmed that, so the state has no duty to indemnify a district attorney under those sections.

On forfeiture funds: Code of Criminal Procedure article 59.06(c)(1) lets an attorney representing the state spend forfeiture funds "solely for the official purposes" of the office. A prior opinion (GA-0613) had read "official purpose" narrowly, limited to duties and functions set by statute or the constitution. Because no state law makes paying for a district attorney's own civil defense an official duty of the office, the opinion concluded forfeiture funds may not be used for that purpose. The opinion did not reach a fourth question about the district attorney's support staff, since it was not briefed and was described as subsumed in the first three.

Currency note

This opinion was issued in 2010. 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.

Local Government Code section 157.901, Civil Practice and Remedies Code chapter 104, and Code of Criminal Procedure article 59.06 may have been amended since 2010. Confirm current law before relying on anything below.

Who this opinion affected (as of 2010)

District attorneys sued in civil suits: The opinion described that, as the law stood, neither the county nor the state was obligated to pay their defense, and forfeiture funds could not be used for that defense.

County commissioners courts: The opinion told them section 157.901 imposed no duty to fund a district attorney's defense, because a district attorney is a district officer outside that statute.

Anyone overseeing asset forfeiture accounts: The opinion described the "official purposes" limit on article 59.06(c)(1) spending narrowly, so a prosecutor's personal civil defense fell outside it.

Common questions

Does my county have to pay to defend me if I'm a district attorney sued on the job?
According to the opinion, no. Local Government Code section 157.901 covers county officials and employees, and a district attorney is a district officer, not a county officer, so the commissioners court has no duty under that statute.

Will the state indemnify a district attorney for the costs?
The opinion said no. It reaffirmed a prior opinion holding that a district attorney is not a covered person under Civil Practice and Remedies Code section 104.001, so the state has no duty to indemnify under sections 104.001 and 104.0035.

Can a district attorney pay her own defense out of asset forfeiture funds?
No. The opinion read article 59.06(c)(1)'s "official purposes" requirement narrowly and found no state law making a district attorney's own civil defense an official duty of the office, so forfeiture funds may not be used for it.

What about the district attorney's staff?
The opinion did not decide that. It declined to separately address the fourth question on support-staff indemnification because it was not briefed and was described as subsumed in the first three.

Background and statutory framework

The request concerned a district attorney's defense in a 42 U.S.C. § 1983 civil rights suit over official conduct. Local Government Code section 157.901 entitles certain county officials and employees to representation in some circumstances (Tex. Loc. Gov't Code Ann. § 157.901(a)-(b) (Vernon 2008)), but the opinion, agreeing with prior opinions and finding no contrary case law, concluded the statute does not require a commissioners court to pay a district attorney's defense because a district attorney is a district officer, not a county officer.

For state indemnification, chapter 104 of the Civil Practice and Remedies Code requires that the person be an employee or officer of a state agency, institution, or department (Tex. Civ. Prac. & Rem. Code Ann. §§ 104.001, 104.001(1) (Vernon Supp. 2009), 104.0035 (Vernon 2005)). The opinion reaffirmed Attorney General Opinion GA-0523 (2007), which concluded a district attorney is not a covered person under section 104.001, noting that a criminal district attorney is simply a "class or kind" of district attorney (Hill County v. Sheppard, 178 S.W.2d 261, 263 (Tex. 1944)). On forfeiture funds, article 59.06(c)(1) permits an attorney representing the state to use deposited funds "solely for the official purposes of his office" (Tex. Code Crim. Proc. Ann. art. 59.06(c)(1) (Vernon Supp. 2009)). Following the narrow construction of "official purpose" adopted in Attorney General Opinion GA-0613 (2008), and finding no state law that makes paying for a district attorney's own civil defense a duty or function of the office, the opinion concluded forfeiture funds may not be used for that purpose.

Citations

Statutes:

• Tex. Loc. Gov't Code Ann. § 157.901(a)-(b) (Vernon 2008)
• Tex. Civ. Prac. & Rem. Code Ann. §§ 104.001, 104.001(1) (Vernon Supp. 2009); § 104.0035 (Vernon 2005)
• Tex. Code Crim. Proc. Ann. art. 59.06(c)(1) (Vernon Supp. 2009)
• 42 U.S.C. § 1983

Cases:

• Hill County v. Sheppard, 178 S.W.2d 261 (Tex. 1944)

Source

• Landing page: https://www.texasattorneygeneral.gov/opinions/greg-abbott/ga-0755
• Original PDF: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/2010/ga0755.pdf

Original opinion text

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

ATTORNEY GENERAL OF TEXAS

GREG ABBOTT

January 20, 2010

The Honorable Lynda K. Russell
123rd Judicial District Attorney
Shelby County
200 San Augustine Street, Suite # 12
Center, Texas 75935

Opinion No. GA-0755

Re: Whether a county or the state must defend a district attorney in a civil lawsuit, and whether a district attorney may use asset forfeiture funds to pay for her defense in such a suit (RQ-0816-GA)

Dear Ms. Russell:

You ask several questions regarding the defense of a district attorney "in a federal civil rights lawsuit filed under 42 USC 1983" involving "actions she took in the course and scope of performing her official duties."[1]

First, you ask whether a county commissioners court has a duty to pay for a district attorney's legal defense in a civil lawsuit. See Request Letter at 3-5. You limit your analysis to Local Government Code section 157.901. Id.; see also TEX. LOC. GOV'T CODE ANN. § 157.901(a)-(b) (Vernon 2008) (providing that a county official or employee is "entitled to be represented" in some circumstances). We limit our analysis accordingly.

You point out that "[t]he attorney general has determined that a district attorney is a district officer and not a county officer" for purposes of section 157.901. See Request Letter at 6; Tex. Att'y Gen. Op. Nos. JC-0047 (1999) at 2 (explaining that section 157.901 does not apply to district officers like district judges), JM-1276 (1990) at 11-12 (identifying a district attorney as an example of a non-county official for purposes of section 157.901), MW-252 (1980) at 2 (concluding that predecessor statute did not apply to district officers such as a district attorney). Finding no case law that construes section 157.901 differently, we agree with the conclusion of those prior opinions. Local Government Code section 157.901 does not require a county commissioners court to pay for a district attorney's legal defense. Thus, a commissioners court has no duty under section 157.901 to pay for a district attorney's legal defense in a civil lawsuit.

Your second question asks whether the State of Texas must indemnify a district attorney for court costs and attorney's fees under Texas Civil Practice and Remedies Code sections 104.001 and 104.0035. See Request Letter at 3, 6; see also TEX. CIV. PRAC. & REM. CODE ANN. §§ 104.001 (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]

SUMMARY

A county commissioners court has no duty to provide for the defense of a district attorney pursuant to Local Government Code section 157.901. The state is not obligated to indemnify a district attorney under Texas Civil Practice and Remedies Code sections 104.001 and 104.0035. A district attorney is not authorized to utilize forfeiture funds under Code of Criminal Procedure article 59.06(c)(1) to pay for the district attorney's legal defense.

Very truly yours,

GREG ABBOTT
Attorney General of Texas

ANDREW WEBER
First Assistant Attorney General

JONATHAN K. FRELS
Deputy Attorney General for Legal Counsel

NANCY S. FULLER
Chair, Opinion Committee

Christy Drake-Adams
Assistant Attorney General, Opinion Committee

[Footnote 1: Request Letter at 2-3 (available at http://www.texasattorneygeneral.gov).]

[Footnote 2: Finally, 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.]