Can a Texas school district pay an administrator's legal bills to sue someone for defamation?

Plain-English summary

Robert Scott, the Commissioner of Education, asked the Attorney General whether an independent school district may pay the legal costs of an administrator who wants to sue a third party for defamation. The backdrop, described in a letter from the district's attorney, was that local media stories had alleged improprieties by district administrators in connection with student testing, admissions, and attendance. The stories, the district said, injured the reputations of both the administrators and the district, and the board of trustees believed the district itself had been defamed. The district asked the Attorney General to assume the board considered funding the administrator's lawsuit to be in the district's interest, not just the employee's personal interest.

The opinion treated this as a question of first impression: no prior Texas case or AG opinion had addressed a governmental body paying an employee's legal expenses to bring a lawsuit as a private plaintiff. The opinion drew on settled rules about the other direction, where an employee is sued. There, a school board may employ an attorney for a trustee sued individually only when the district's interests, not merely the trustee's personal interests, require it. The decisive point was that a governmental body cannot itself sue for defamation. A Texas court of appeals held in the Port Arthur ISD (Klein) case that a governmental body is prohibited from filing a defamation action, relying on the United States Supreme Court's decision in New York Times v. Sullivan, which observed that no court of last resort has ever suggested that prosecutions for libel on government have a place in American jurisprudence.

Because the district could not bring a defamation suit on its own behalf, the opinion reasoned, its administrators could not do so for the district or with district funding. An employee could not circumvent the prohibition by bringing a personal lawsuit bankrolled by the governmental body, because that would necessarily serve only the employee's personal interests. The opinion analogized to a Texas Supreme Court decision holding that a party "cannot accomplish indirectly what it could not do directly." Funding the suit would fail the test for district financial support set out in the earlier AG opinion. The opinion concluded that an independent school district may not defray the legal expenses of an administrator who files a private defamation lawsuit advancing personal interests. It added, in a footnote, that reimbursing a plaintiff-employee might be questionable in any event, since a plaintiff (unlike a defendant) is not required to incur legal expenses on the governmental body's behalf.

Currency note

This opinion was issued in 2011. Subsequent statutory amendments, court decisions, or later Attorney General 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

School districts and their boards (as the opinion held for them): The opinion told districts that they may not pay or reimburse an administrator's legal expenses for filing a private defamation lawsuit that advances the administrator's personal interests, even if the board believes the suit also serves the district.

Administrators considering such a suit (as the opinion described it): Under the opinion, an administrator could still pursue a personal defamation claim, but not with district funds, because that funding would amount to the district doing indirectly what it cannot do directly.

On why the district itself can't sue (as the opinion described it): The opinion explained that a governmental body is barred from bringing a defamation action at all, citing a Texas court of appeals decision that relied on the U.S. Supreme Court's ruling in New York Times v. Sullivan.

Where the opinion noted a further doubt: In a footnote, the opinion observed that reimbursing an employee who acts as a plaintiff might never be proper, since a plaintiff-employee is not required to incur legal expenses on the governmental body's behalf, unlike an employee sued as a defendant.

Common questions

Can a Texas school district pay for an administrator to sue a newspaper for defamation?
No. The opinion concluded a district may not defray the legal expenses of an administrator who files a private defamation suit advancing personal interests.

Can a school district sue for defamation itself?
No. The opinion relied on a Texas court of appeals decision holding that a governmental body is prohibited from filing a defamation action, which in turn rested on the U.S. Supreme Court's ruling in New York Times v. Sullivan.

Why can't the employee just sue personally with district money?
Because, the opinion reasoned, that would let the employee circumvent the bar on government defamation suits and would serve only the employee's personal interests, failing the test for when a district may fund an employee's litigation.

Is this different from when an employee is sued?
Yes. The opinion noted that when an employee is a defendant, a district may fund a defense if the district's own interests require it, but a plaintiff-employee is not required to incur expenses on the district's behalf, which made reimbursement here improper.

Background and statutory framework

The opinion treated the question as one of first impression, with no prior Texas decision or AG opinion on a governmental body funding an employee's suit as a private plaintiff. It started from the rule that a school board may employ counsel for a trustee sued individually only where the district's interests, not merely the trustee's personal interests, require it, citing Attorney General Opinion GA-0104 (2003).

A Texas court of appeals held that a governmental body, there an independent school district, is prohibited from filing a defamation action. Port Arthur Indep. Sch. Dist. v. Klein & Assocs. Political Relations, 70 S.W.3d 349, 351, 353 (Tex. App.-Beaumont 2002, no pet.). That court relied on the United States Supreme Court's statement that no court of last resort has held or suggested that prosecutions for libel on government have a place in American jurisprudence. New York Times v. Sullivan, 376 U.S. 254, 291 (1964). The opinion analogized to the principle that a party cannot accomplish indirectly what it cannot do directly. Daughters of Charity Health Servs. of Waco v. Linnstaedter, 226 S.W.3d 409, 410 (Tex. 2007).

Citations

Cases:

• Port Arthur Indep. Sch. Dist. v. Klein & Assocs. Political Relations, 70 S.W.3d 349, 351 (Tex. App.-Beaumont 2002, no pet.)
• New York Times v. Sullivan, 376 U.S. 254 (1964)
• Daughters of Charity Health Servs. of Waco v. Linnstaedter, 226 S.W.3d 409, 410 (Tex. 2007)

Source

• Landing page: https://www.texasattorneygeneral.gov/opinions/greg-abbott/ga-0878
• Original PDF: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/2011/ga0878.pdf

Original opinion text

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

ATTORNEY GENERAL OF TEXAS
GREG ABBOTT

August 12, 2011

Mr. Robert Scott Opinion No. GA-0878
Commissioner of Education
Texas Education Agency Re: Authority of an independent school district to
1701 North Congress Avenue defray the legal expenses of an administrator who
Austin, Texas 78701-1494 files an action for defamation (RQ-0953-GA)

Dear Commissioner Scott:

You ask whether an independent school district may defray the legal expenses of an administrator who files a lawsuit against a third party for defamation.[1]

A letter from an attorney representing the school district in question explains that "[o]ne or more of the District's administrators have been subject to stories in local media, alleging improprieties in connection with student testing, student admissions and attendance, etc."[2] The letter indicates that "[t]he stories have had the tendency to injure the reputation not only of the administrators, but of the District itself," and that "[t]he Board of Trustees believes that the District itself has been defamed[.]" Safi Letter at 1-2. The letter asks us to "assume that the Board believes that the expenditure in funding the plaintiff's lawsuit would be in the District's interest, and not merely in the employee's personal interest." Id. at 3.

This is a case of first impression in Texas. No judicial decision or attorney general opinion has heretofore considered a situation in which a governmental body seeks to pay or reimburse its employee's legal expenses for bringing a lawsuit as a private party plaintiff.

When the employee is a defendant, we have said that a "school board's authority to employ an attorney for a trustee sued in an individual capacity is limited to situations where the district's interests, and not merely the trustee's personal interests, require assertion or defense in court." Tex. Att'y Gen. Op. No. GA-0104 (2003) at 4 (citations omitted). As we have noted, the attorney for the school district argues that the plaintiff-employee's contemplated legal action "would be in the District's interests." Safi Letter at 3.

However, as the attorney for the district acknowledges, "the District itself does not have standing to file a defamation case on its own behalf." Id. at 2. In a Texas court of appeals case, the court considered whether a governmental body, in that case an independent school district, may sue for defamation. See Port Arthur Indep. Sch. Dist. v. Klein & Assocs. Political Relations, 70 S.W.3d 349, 351 (Tex. App.-Beaumont 2002, no pet.). After observing that the matter is "a question of law," the court held that a governmental body is prohibited from filing an action for defamation. Klein, 70 S.W.3d at 353. Relying on the United States Supreme Court's decision, New York Times v. Sullivan, 376 U.S. 254 (1964), the Klein court declared:

In distinguishing a suit brought by a governmental unit from a suit filed by a government official, the United States Supreme Court has stated as follows: "For good reason, 'no court of last resort in this country has ever held, or even suggested, that prosecutions for libel on government have any place in the American system of jurisprudence.'"

Klein, 70 S.W.3d at 351 (quoting Sullivan, 376 U.S. at 291).

The fact that a governmental body is itself proscribed from bringing an action for defamation means that the administrators at issue here may not do so on the district's behalf, or with funding from the district. Because the United States Supreme Court has said that governmental bodies may not bring defamation lawsuits, the governmental body's employee may not attempt to circumvent that prohibition by bringing a personal lawsuit with funding from the governmental body because doing so would necessarily be limited to the employee's personal interests.[3] The district's use of its resources to advance an employee's personal interests fails the test for financial support or reimbursement articulated in Attorney General Opinion GA-0104 (2003).[4] Thus, we conclude that an independent school district may not defray the legal expenses of an administrator who files a private defamation lawsuit that advances his or her personal interests.

SUMMARY

An independent school district may not defray the legal expenses of an administrator who files an action for defamation.

Very truly yours,

DANIEL T. HODGE
First Assistant Attorney General

DAVID J. SCHENCK
Deputy Attorney General for Legal Counsel

JASON BOATRIGHT
Chair, Opinion Committee

Rick Gilpin
Assistant Attorney General, Opinion Committee

[1] Letter from Mr. Robert Scott, Commissioner of Education, Texas Education Agency, to Honorable Greg Abbott, Attorney General of Texas (Mar. 15, 2011), https://www.oag.state.tx.us/opin/index_rq.shtml ("Request Letter").

[2] Letter from S. Anthony Safi, Mounce, Green, Myers, Safi, Paxson & Galatzan, to Mr. Robert Scott at 1 (Jan. 24, 2011) (attached to Request Letter), https://www.oag.state.tx.us/opin/index_rq.shtml ("Safi Letter").

[3] In a recent decision, the Texas Supreme Court held that, because a hospital that has been paid by a workers' compensation carrier is barred by statute from pursuing a claim against the covered patient for the remaining charges, a hospital may not file a lien against the patient's property to recoup the remaining charges because it "cannot accomplish indirectly (by filing a lien) what [it] could not do directly (by filing suit)." Daughters of Charity Health Servs. of Waco v. Linnstaedter, 226 S.W.3d 409, 410 (Tex. 2007).

[4] Moreover, it might be questioned whether reimbursement to an employee who acts as a plaintiff is ever proper. Unlike an employee who is sued as a defendant, a plaintiff employee is not required to incur any legal expenses on behalf of his governmental body. And in the present instance, the administrator is attempting to raise an issue, defamation, which his employer would be barred ab initio from raising in a legal action.