Can a Texas school district use public money to pay a trustee's lawyer when the trustee is personally sued for an intentional tort?

Texas AG Opinion JM-968: Can a School District Pay a Trustee's Lawyer?

Plain-English summary

A dispute in the Huffman Independent School District put a familiar question in sharp relief. A teacher alleged she had been sexually harassed and that a trustee then retaliated by voting against renewing her contract. Two lawsuits followed. One was against the district itself over civil rights. The other was a private suit the former teacher brought against the trustee personally, claiming he committed an intentional tort in the school parking lot after a board meeting. The school board wanted to pay for the trustee's defense in that personal suit, and the trustee had signed a letter agreeing to pay the district back if it turned out the payments were improper. A state senator asked the Attorney General whether the district could lawfully foot that bill.

The answer was a qualified yes, and it turned on who decides. A school district is allowed to hire and pay lawyers to protect its own interests in a lawsuit, even when the suit is technically against an individual officer or employee rather than the district. But that authority has a limit built into it by the Texas Constitution, which bars spending public money for purely private benefit. The district can pay only when its own legitimate interests, not just the officer's personal interests, call for a vigorous defense on behalf of the public.

Because that line between "public interest" and "personal interest" depends entirely on the facts, the Attorney General said the decision is not one his office can make. It is a fact question, and the office does not find facts when it issues opinions. The call belongs to the school board itself, specifically to a majority of the disinterested board members, meaning the ones who do not have a personal stake in the outcome. Their job is to decide whether the lawsuit genuinely implicates the district's interests or whether paying for the defense would just benefit the trustee personally.

The Attorney General was careful to give the board realistic guidance, not an impossible standard. The trustees do not have to conclude, before they authorize the defense, that the trustee is completely blameless or that the lawsuit is bound to fail. They only need to use their best judgment, based on what is in front of them, to decide that the officer was acting in good faith within the scope of an official duty. And here is a point that matters for intentional-tort cases specifically: even when a lawsuit contains allegations that make the officer's conduct sound personal or outside his official role, that does not automatically block a publicly funded defense. An allegation is just an allegation. Whether the conduct really fell outside official duties gets sorted out at trial, so the mere fact that the plaintiff pleaded an intentional tort does not, by itself, prevent the board from providing a defense.

The opinion noted that these same principles have gone even further in other cases, allowing a public officer to be defended at taxpayer expense in criminal prosecutions, not just civil ones. The bottom line for the senator's question: a district may pay to defend a trustee in a private intentional-tort suit if the disinterested board members make a good-faith finding that the defense serves the public interest, and it may not pay if the suit really only concerns the trustee's personal interests.

Currency note

This opinion was issued in 1988. 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.

The Education Code has been recodified since 1988, so the authority cited here as section 23.26 now appears under different section numbers, and the Legislature and courts have since addressed governmental immunity and the defense and indemnification of local officials in more detail. Anyone dealing with a school district's payment of an official's legal defense today should consult the current Education Code and current case law on public funds and official immunity rather than the section numbers used here.

Who this opinion affected (as of 1988)

School boards and trustees: The opinion put the decision squarely on the disinterested board members, giving them a good-faith, public-interest standard for deciding whether to fund a trustee's defense.

School district taxpayers: The opinion protected public funds from being spent on purely personal legal defenses while allowing defense where the district's own interests are genuinely at stake.

Public officers facing personal lawsuits: The opinion clarified that even an intentional-tort allegation does not automatically disqualify them from a publicly funded defense.

Common questions

Can a Texas school district pay to defend a trustee sued for an intentional tort?
Yes, but conditionally. In this opinion the Attorney General concluded the district may pay if a majority of the disinterested board members make a good-faith determination that defending the suit is in the public interest.

Who decides whether the defense serves the public interest?
The disinterested members of the school board. The Attorney General's office does not make that factual determination in the opinion process.

Does the board have to be sure the trustee will win first?
No. The trustees need only use their best judgment to conclude that the officer acted in good faith within the scope of an official duty; they need not decide in advance that the officer is blameless or that the suit will be defeated.

Does an intentional-tort allegation automatically bar a publicly funded defense?
No. An allegation alone does not prevent the board from providing a defense. Whether the conduct fell outside official duties is decided at trial.

Background and statutory framework

An independent school district may retain and pay attorneys to protect its interests in a lawsuit, even though the suit is brought against an individual officer or employee of the district (Education Code section 23.26; Attorney General Opinions JM-685 (1987) and H-70 (1973); Stewart v. Newton Independent School District, 134 S.W.2d 429 (Tex. Civ. App. - Beaumont 1939, no writ); Harding v. Raymondville Independent School District, 51 S.W.2d 826 (Tex. Civ. App. - San Antonio 1932, writ dism'd); Arrington v. Jones, 191 S.W. 361 (Tex. Civ. App. - Texarkana 1917, no writ)). The district's authority to employ attorneys is limited to situations where the legitimate interests of the district, and not merely the personal interests of the officer, require the assertion of a vigorous legal defense on behalf of the public interest (Attorney General Opinions JM-824 and JM-685 (1987), H-70 (1973); Tex. Const. art. III, sections 50, 51, 52; State v. Averill, 110 S.W.2d 1173 (Tex. Civ. App. - San Antonio 1937, writ ref'd); Graves & Houtchens v. Diamond Hill Independent School District, 243 S.W. 638 (Tex. Civ. App. - Fort Worth 1922, no writ); City of Corsicana v. Babb, 290 S.W. 736 (Tex. Comm'n App. 1927, judgment adopted); City of Del Rio v. Lowe, 111 S.W.2d 1208 (Tex. Civ. App. - San Antonio 1937), rev'd on other grounds, 122 S.W.2d 191 (Tex. 1938)).

The lawfulness of expending public funds to protect the public interest in a suit brought against a school district officer is always a question of fact (Attorney General Opinion JM-824 (1987)). The trustees must decide whether the suit really involves the interests of the school district or whether the expenditure of taxpayer funds would accrue solely to the personal benefit of the officer. The office does not make determinations of fact in issuing legal opinions; that responsibility rests with the judgment of a majority of the disinterested members of the school board.

In making the decision, the trustees do not have to conclude absolutely in advance that the officer sued is blameless or that the suit ultimately will be defeated (Attorney General Opinion M-726 (1970)). They need only use their best judgment to determine, based on the information before them, that the officer's actions were undertaken in good faith within the scope of an official duty. Even when a lawsuit contains allegations that seem to place the officer's actions outside the scope of official duties, a defense at public expense may still be proper; such an issue can be decided only at trial, and standing alone an allegation does not prevent the board from providing for the defense (Attorney General Opinion JM-824 (1987); City of Del Rio v. Lowe, supra). These general principles have been applied by the courts to permit defense of a public officer or employee at taxpayer expense even in criminal prosecutions (City of Corsicana v. Babb, supra; see generally Annot., 130 A.L.R. 736 (1941)).

Citations

Constitutional and statutory authority:

• Section 23.26, Education Code (school district's authority to employ attorneys)
• Article III, sections 50, 51, 52, Texas Constitution (limits on lending credit and granting public money for private benefit)

Cases:

• Stewart v. Newton Independent School District, 134 S.W.2d 429 (Tex. Civ. App. - Beaumont 1939, no writ)
• Harding v. Raymondville Independent School District, 51 S.W.2d 826 (Tex. Civ. App. - San Antonio 1932, writ dism'd)
• Arrington v. Jones, 191 S.W. 361 (Tex. Civ. App. - Texarkana 1917, no writ)
• State v. Averill, 110 S.W.2d 1173 (Tex. Civ. App. - San Antonio 1937, writ ref'd)
• Graves & Houtchens v. Diamond Hill Independent School District, 243 S.W. 638 (Tex. Civ. App. - Fort Worth 1922, no writ)
• City of Corsicana v. Babb, 290 S.W. 736 (Tex. Comm'n App. 1927, judgment adopted)
• City of Del Rio v. Lowe, 111 S.W.2d 1208 (Tex. Civ. App. - San Antonio 1937), rev'd on other grounds, 122 S.W.2d 191 (Tex. 1938)

Prior Attorney General opinions referenced: JM-685 (1987), JM-755 (1987), JM-824 (1987), M-726 (1970), MW-157 and MW-252 (1980), H-70 (1973), H-544 (1975), H-887 (1976), WW-1464 (1962), Letter Advisory No. 24 (1973).

Source

• Landing page: https://www.texasattorneygeneral.gov/opinions/jim-mattox/jm-968
• Original PDF: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1988/jm0968.pdf

Original opinion text

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

October 21, 1988

Honorable Carl A. Parker
Chairman
Education Committee
Texas State Senate
P. O. Box 12068
Austin, Texas 78711

Opinion No. JM-968

Re: Authority of a school district to expend funds to defend a trustee in an action alleging an intentional tort (RQ-1542)

Dear Senator Parker:

You ask our opinion on the following question:

May an independent school district lawfully expend funds for attorney's fees for defense of a trustee in a civil suit alleging an intentional tort against the trustee?

You furnish the following statement of facts in support of your question:

Circumstances exist in the Huffman I.S.D. whereby a trustee became embroiled in a difference of opinion with a teacher. The teacher has alleged sexual harassment and in retaliation of the complaints one trustee has voted against renewal of her contract. Two lawsuits have been filed, one against the school district alleging various civil rights violations, and a private lawsuit by the former teacher against a trustee alleging an intentional tort taking place in the parking lot of the school district following a school board meeting.

Apparently, the school board of trustees has undertaken to provide legal counsel for the trustee in defense of the civil suit alleging the intentional tort. The trustee has signed a letter of agreement agreeing to reimburse the district in the event it is determined that payments for attorney's fees in his behalf are not proper.

An independent school district may retain and pay attorneys to protect its interests in a lawsuit, even though the suit is brought against an individual officer or employee of the district. Educ. Code section 23.26; Attorney General Opinion JM-685 (1987); Attorney General Opinion H-70 (1973); see Stewart v. Newton Independent School District, 134 S.W.2d 429 (Tex. Civ. App. - Beaumont 1939, no writ); Harding v. Raymondville Independent School District, 51 S.W.2d 826 (Tex. Civ. App. - San Antonio 1932, writ dism'd); Arrington v. Jones, 191 S.W. 361 (Tex. Civ. App. - Texarkana 1917, no writ).

The authority of the district to employ attorneys is limited to those situations where the legitimate interests of the district, and not merely the personal interests of the officer, require the assertion of a vigorous legal defense on behalf of the public interest. Attorney General Opinions JM-824, JM-685 (1987); H-70 (1973); see Tex. Const. art. III, sections 50, 51, 52; State v. Averill, 110 S.W.2d 1173 (Tex. Civ. App. - San Antonio 1937, writ ref'd); Graves & Houtchens v. Diamond Hill Independent School District, 243 S.W. 638 (Tex. Civ. App. - Fort Worth 1922, no writ). See also City of Corsicana v. Babb, 290 S.W. 736 (Tex. Comm'n App. 1927, judgment adopted); City of Del Rio v. Lowe, 111 S.W.2d 1208 (Tex. Civ. App. - San Antonio 1937), rev'd on other grounds, 122 S.W.2d 191 (Tex. 1938); City National Bank of Austin v. Presidio County, 26 S.W. 775 (Tex. Civ. App. 1894, no writ); Attorney General Opinions MW-252, MW-157 (1980); H-887 (1976); H-544 (1975); WW-1464 (1962); Letter Advisory No. 24 (1973).

Thus, the question of the lawfulness of expending public funds to protect the public interest in a suit brought against the officer of a school district will always be a question of fact. Attorney General Opinion JM-824 (1987). The question which the trustees of the district must decide is whether or not the suit really involves the interests of the school district or whether the expenditure of taxpayer funds will accrue solely to the personal benefit of the officer. This office does not make determinations of fact in the process of issuing legal opinions; that responsibility in this kind of question must rest with the judgment of a majority of the disinterested members of the school board. Id.

We emphasize that in making such a decision, the trustees do not have to conclude absolutely in advance that the officer sued is blameless, or that the suit ultimately will be defeated. Id. The trustees need only use their best judgment to determine based on the information before them that the actions of the officer were undertaken in good faith within the scope of an official duty. Id.; see also Attorney General Opinion M-726 (1970). Even when a lawsuit contains allegations that seem to place the actions of the officer outside the scope of official duties, a defense at public expense may still be proper. Such an issue can only be decided at the trial of the case; standing alone, an allegation does not prevent the school board from providing for the defense of an officer. Attorney General Opinion JM-824 (1987); see, e.g., City of Del Rio, supra; see also Attorney General Opinions JM-755 (1987); H-887 (1976); H-544 (1975).

Your request letter indicates that you are concerned particularly about the application of these general principles to a situation involving the defense with public funds of an officer alleged to have committed an intentional tort. The general principles discussed above have been applied by the courts to permit the defense of a public officer or employee at taxpayer expense in criminal prosecutions. City of Corsicana v. Babb, supra; see generally Annot., 130 A.L.R. 736 (1941).

SUMMARY

A school district may expend public funds for the defense of a school trustee in a private lawsuit alleging an intentional tort if a majority of the disinterested members of the school board make a good faith determination that a defense of the action is in the public interest. A school district may not expend public funds to represent the purely personal interests of an individual trustee.

JIM MATTOX
Attorney General of Texas

MARY KELLER
First Assistant Attorney General

LOU MCCREARY
Executive Assistant Attorney General

JUDGE ZOLLIE STEAKLEY
Special Assistant Attorney General

RICK GILPIN
Chairman, Opinion Committee

Prepared by D. R. Bustion, II
Assistant Attorney General