Can a Texas county pay legal fees for a commissioner investigated but never charged?

Plain-English summary

Elton Mathis, the Waller County Criminal District Attorney, asked the Attorney General two questions about a sensitive local situation: whether the county could pay the legal bills of current and former county commissioners who had been criminally investigated for possible Open Meetings Act violations, and whether the commissioners under investigation could vote to approve those payments. A criminal complaint had been filed, the district attorney's office recused itself, special prosecutors took the matter to a grand jury, and the grand jury declined to indict. Afterward, the commissioners court voted to pay the lawyers who had defended the officials.

On the first question, the AG started with the statute the commissioners court relied on, section 157.901 of the Local Government Code. That section entitles a county official who is "sued" for an action arising from public duty to representation by the district or county attorney, and requires the commissioners court to hire private counsel when necessary, including when the act complained of may form the basis of a criminal charge. But a court of appeals had read that criminal-charge language as still about civil cases, and the AG agreed that section 157.901 does not address paying for representation in criminal matters.

That did not end it, though. The AG explained that a commissioners court has general, common-law authority to hire private attorneys when there is no constitutional or statutory limit, and that section 157.901 does not displace that common-law rule. Drawing on prior opinions, the AG laid out the test a court would likely use for criminal-defense fees: so long as the official is not found guilty, the commissioners court may reimburse criminal-defense costs if it determines that the prosecution was for an act done in the bona fide performance of official duties and that paying will serve a public interest, not merely the official's private interest. Whether a legitimate public interest is involved is a fact question for the governing body in the first instance, subject to judicial review. So the AG concluded a county does have authority to pay a commissioner's fees for a criminal investigation that ended without charges, provided the commissioners court makes that public-interest determination. The AG also addressed a misreading of an earlier opinion: that opinion required deferring payment until charges were resolved because the city there could not pay an official found guilty, but it should not be read to bar paying fees for a criminal matter that ends favorably at the grand jury stage.

On the second question, the AG said public policy does not let a member vote on his own interest. A public official may not cast the deciding vote on a matter in which the official has a direct, personal interest. A prior opinion had concluded that a city council member indicted for an Open Meetings Act violation could not vote on paying his own defense fees, and also could not vote on paying the fees of other members indicted for the same offense, because he could not make a disinterested judgment about them. Following the same reasoning, the AG concluded a court would likely hold that a commissioner under criminal investigation cannot vote on county payment of his own defense fees or the fees of other commissioners caught up in the same investigation.

The AG was careful to flag what it was not deciding: it did not address whether members who are not under investigation may approve payment for the members who are.

Currency note

This opinion was issued in 2015. 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 mentioned here.

What the opinion meant for those who asked

County commissioners courts (as the opinion described it): The opinion described a commissioners court as having common-law authority to pay an official's criminal-defense fees, even where no charges were filed, if it determines the prosecution concerned the bona fide performance of official duties and the payment serves a public interest rather than a private one, subject to judicial review. It described that public-interest call as a fact question for the court in the first instance.

Commissioners who were investigated (as the opinion described it): The opinion described a member under criminal investigation as barred by public policy from voting on payment of his own defense fees, and also from voting on the fees of other members subject to the same investigation, because of the direct personal interest.

County and district attorneys advising the county (as the opinion described it): The opinion described section 157.901 as addressing civil representation rather than criminal matters, and located the county's authority to pay criminal-defense fees in the common law instead. It corrected a reading of a prior opinion that would have barred payment for a criminal matter resolved favorably before any indictment.

Where the AG declined to opine: The opinion expressly did not address whether members of the commissioners court who were not under investigation could approve payment of fees for the members who were. The page does not answer that, because the AG did not.

Common questions

Can a Texas county pay a commissioner's criminal-defense lawyer if charges are never filed?
The AG said yes, if the commissioners court determines, subject to judicial review, that the prosecution concerned the bona fide performance of official duties and that paying serves a public interest, not merely the official's private interest. The authority comes from the county's common-law power to hire attorneys, not from section 157.901.

Doesn't section 157.901 cover this?
The AG said section 157.901 addresses civil representation of officials, not criminal matters. Its reference to criminal charges still concerns when a county must provide civil counsel. The power to pay criminal-defense fees rests on the common law.

Can a commissioner who was investigated vote to pay his own legal fees?
No. The AG said public policy bars a member with a direct, personal interest from voting on it. That member also cannot vote on paying the fees of other commissioners caught up in the same investigation.

Does the official have to be acquitted first?
The AG said the official must not be found guilty, but a matter that ends favorably at the grand jury stage, with no indictment, can qualify. It corrected a reading of an earlier opinion that would have required waiting for charges to be resolved in every case.

What public-interest test applies?
The AG described it as whether the prosecution was for an act done in the bona fide performance of official duties and whether the expenditure serves a public interest rather than merely the official's private interest, a fact question for the commissioners court in the first instance, subject to judicial review.

Background and statutory framework

The Waller County Criminal District Attorney has the duties Texas law assigns to county and district attorneys (Tex. Gov't Code Ann. § 44.337(a)-(b)). Local Government Code section 157.901 entitles a county official or employee "sued" for an action arising from public duty to representation by the district attorney, county attorney, or both, and requires the commissioners court to employ private counsel when additional counsel is necessary or proper, or when the act complained of may form the basis of a criminal charge (Tex. Loc. Gov't Code Ann. § 157.901(a), (b)). A court of appeals construed that criminal-charge reference as still concerning civil representation, so section 157.901 does not address representation in criminal matters (White v. Eastland Cnty., 12 S.W.3d 97, 102 (Tex. App.-Eastland 1999, no pet.)).

The AG explained that a commissioners court nonetheless has implied, common-law authority to contract with attorneys when necessary, so long as doing so does not usurp other officials' statutory duties, and that section 157.901 does not supplant that common-law rule (White, 12 S.W.3d at 100; Guynes v. Galveston Cnty., 861 S.W.2d 861, 863-64 (Tex. 1993); Tex. Att'y Gen. Op. No. JM-1276 (1990)). Under prior opinions, a commissioners court may reimburse criminal-defense costs, provided the official is not found guilty, when it determines the prosecution was for an act in the bona fide performance of official duties and the expenditure serves a public interest, a fact question for the governing body in the first instance and subject to judicial review (Tex. Att'y Gen. Op. Nos. GA-0523 (2007), JC-0047 (1999); White, 12 S.W.3d at 104). The AG distinguished an earlier opinion that had required deferring payment until charges were resolved, explaining it should not be read to bar paying fees for a criminal matter that concludes favorably at the grand jury stage (Tex. Att'y Gen. Op. No. JC-0294 (2000)).

On voting, the AG applied the public-policy rule that an official may not cast the deciding vote on a matter in which the official has a direct, personal interest (Hager v. State ex rel. Te Vault, 446 S.W.2d 43, 49-50 (Tex. Civ. App.-Beaumont 1969, writ ref'd n.r.e.)). A prior opinion had barred an indicted city council member from voting on his own defense fees and on the fees of others indicted for the same offense, reasoning he could not make a disinterested determination, and the AG followed that reasoning here (Tex. Att'y Gen. Op. No. JC-0294 (2000)). The AG did not address whether members not under investigation could approve payment for those who were, noting the general rule that a proposition passes by a majority of those present and voting (Tex. Att'y Gen. Op. No. GA-0554 (2007); Comm'rs Ct. of Limestone Cnty. v. Garrett, 236 S.W. 970, 973 (Tex. Comm'n App. 1922, judgm't adopted)). A violation of the Open Meetings Act, separately, renders the action voidable and subject to being set aside (Tex. Gov't Code Ann. § 551.141; Smith Cnty. v. Thornton, 726 S.W.2d 2, 2-3 (Tex. 1986)).

Citations

Statutory provisions:

• Tex. Gov't Code Ann. § 44.337(a)-(b) (duties of a criminal district attorney)
• Tex. Loc. Gov't Code Ann. § 157.901(a), (b) (representation of county officials sued for acts of public duty)
• Tex. Gov't Code Ann. § 551.141 (Open Meetings Act violations are voidable)

Cases:

• White v. Eastland Cnty., 12 S.W.3d 97, 102 (Tex. App.-Eastland 1999, no pet.)
• Guynes v. Galveston Cnty., 861 S.W.2d 861, 863-64 (Tex. 1993)
• Hager v. State ex rel. Te Vault, 446 S.W.2d 43, 49-50 (Tex. Civ. App.-Beaumont 1969, writ ref'd n.r.e.)
• Smith Cnty. v. Thornton, 726 S.W.2d 2, 2-3 (Tex. 1986)
• Comm'rs Ct. of Limestone Cnty. v. Garrett, 236 S.W. 970, 973 (Tex. Comm'n App. 1922, judgm't adopted)

Prior Attorney General opinions referenced:

• Tex. Att'y Gen. Op. Nos. JM-1276 (1990), GA-0523 (2007), JC-0047 (1999), JC-0294 (2000), GA-0554 (2007)

Source

• Landing page: https://www.texasattorneygeneral.gov/opinions/ken-paxton/kp-0016
• Original PDF: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/2015/kp0016.pdf

Original opinion text

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

KEN PAXTON
ATTORNEY GENERAL OF TEXAS

May 11, 2015

The Honorable Elton R. Mathis Opinion No. KP-0016
Waller County Criminal District Attorney
645 12th Street Re: Payment of attorney's fees for members
Hempstead, Texas 77445 of a county commissioners court under
criminal investigation for potential violations
of the Open Meetings Act (RQ-1228-GA)

Dear Mr. Mathis:

You ask two questions about the payment of attorney's fees for current and former members of the Waller County Commissioners Court who were under criminal investigation for potential violations of the Open Meetings Act. [1] You state that after a criminal complaint was filed alleging the violations, the county criminal district attorney's office [2] recused itself from the matter. Request Letter at 1. The commissioners court "voted to retain counsel to defend county officials who may be subject to claims or litigation for actions arising from the performance of a public duty in which the public interest requires a defense of such matters." Id. at 2-3. Special prosecutors presented their investigation to the grand jury, which declined to return indictments against the commissioners. Id. at 2. Thereafter, the commissioners court voted to approve payment of legal fees for defending county officials who were the subject of the claims and the investigation. Id. In its order, the commissioners court found that: (1) the allegations implicated county officials in civil or criminal investigations concerning the performance of their public duties; (2) the public interest in the matter "required a vigorous defense"; (3) the district or county attorneys could not provide representation because of a conflict of interest; (4) the defense required outside representation; and (5) the criminal investigation "concluded with no findings of misconduct." Id. Subsequently, the current and former commissioners submitted invoices they had received from the defense counsel for payment by the county. Id. [3]

You first ask whether section 157.901 of the Local Government Code authorizes the payment of attorney's fees for a criminal investigation that did not result in any criminal charges filed. Request Letter at 1. Under subsection 157.901(a), a "county official or employee sued by any entity ... 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." TEX. LOC. GOV'T CODE ANN. § 157.901(a) (West 2008). Subsection 157.901(b) requires a commissioners court to employ and pay private counsel for a representation under subsection (a) when "additional counsel is necessary or proper," 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." Id. § 157.901(b). A court of appeals has determined that subsection 157.901(b)'s reference to criminal charges concerns circumstances that require a county to employ private counsel to represent its officials and employees in civil, not criminal, matters. White v. Eastland Cnty., 12 S.W.3d 97, 102 (Tex. App.-Eastland 1999, no pet.). Section 157.901 does not address county authority to provide legal representation to its officials and employees in criminal matters. See White, 12 S.W.3d at 102.

As the court in White recognized, however, a commissioners court has general authority to employ private attorneys in the absence of constitutional or statutory limitations. Id. at 100 (stating that a county's "implied powers include the authority to contract with experts when necessary, including attorneys"); see also Guynes v. Galveston Cnty., 861 S.W.2d 861, 863-64 (Tex. 1993) (determining that a commissioners court may employ attorneys provided that doing so does not usurp other officials' statutory duties); Tex. Att'y Gen. Op. No. JM-1276 (1990) at 11 (stating that, with respect to counties, section 157.901 "does not supplant the common-law rule"). This office has summarized the standards that a court would likely utilize when reviewing the payment of criminal defense fees:

Provided that the official or employee is not found guilty, the commissioners court may reimburse criminal defense costs upon its determination that the prosecution was for an act performed in the bona fide performance of official duties and that the expenditure will serve a public interest and not merely an officer's or employee's private interest.

Tex. Att'y Gen. Op. No. GA-0523 (2007) at 4. [4] Whether employing legal counsel in such circumstances "implicates a legitimate public interest is a question of fact to be resolved by the political subdivision's governing body in the first instance." Tex. Att'y Gen. Op. No. JC-0047 (1999) at 3; White, 12 S.W.3d at 104 (determining that whether a county will provide criminal counsel to its officers or employees in appropriate circumstances is a matter "of governmental policy and discretion"). Accordingly, a county has the authority to pay attorney's fees for a member of a commissioners court who sought legal representation for a criminal investigation that did not result in any criminal charges filed, provided that the commissioners court determines, subject to judicial review, that the payment will serve a public interest and not merely the member's private interest.

While a county may have the authority to pay for the criminal defense of county officials in principle, you also ask whether individual members of a commissioners court who were under criminal investigation may vote on the approval of county payment of their own attorney's fees and the fees of other commissioners subject to the investigation. Request Letter at 1. As a matter of public policy, a public official may not cast the deciding vote in a matter in which the official has a direct, personal interest. Hager v. State ex rel. Te Vault, 446 S.W.2d 43, 49-50 (Tex. Civ. App.-Beaumont 1969, writ ref'd n.r.e.). This office determined in a prior opinion that public policy precluded a city council member who had been indicted for violating the Open Meetings Act from voting not only on county payment of attorney's fees for the member's own defense but also on payment of attorney's fees for the defense of other council members indicted for the same offense. Tex. Att'y Gen. Op. No. JC-0294 (2000) at 1-4. The opinion observed that it would "be extremely difficult for any of the indicted council members to make a disinterested determination as to the other council members indicted for the same offense." Id. at 3. Following the same reasoning, a court would likely conclude that public policy precludes a member of a commissioners court under criminal investigation from voting on county payment of the member's criminal defense fees or the fees of other members subject to the same investigation. [5]

SUMMARY

A county has the authority to pay attorney's fees for a member of a commissioners court who sought legal representation for a criminal investigation that did not result in any criminal charges filed, provided that the commissioners court determines, subject to judicial review, that the payment will serve a public interest and not merely the member's private interest.

A court would likely conclude that public policy precludes a member of a commissioners court under criminal investigation from voting on county payment of the member's criminal defense fees or the fees of other members subject to the same investigation.

Very truly yours,

KEN PAXTON
Attorney General of Texas

CHARLES E. ROY
First Assistant Attorney General

BRANTLEY STARR
Deputy Attorney General for Legal Counsel

VIRGINIA K. HOELSCHER
Chair, Opinion Committee

WILLIAM A. HILL
Assistant Attorney General, Opinion Committee

[1] See Letter from Honorable Elton R. Mathis, Waller Cnty. Crim. Dist. Att'y, to Honorable Greg Abbott, Tex. Att'y Gen. at 1 (Nov. 6, 2014), https://www.texasattorneygeneral.gov/opinion/requests-for-opinion-rqs ("Request Letter").

[2] The Waller County Criminal District Attorney has all of the duties that the law assigns to Texas county and district attorneys. TEX. GOV'T CODE ANN. § 44.337(a)-(b) (West 2004).

[3] If a governmental body's actions are determined to violate the Open Meetings Act, they are voidable and subject to being set aside by judicial proceeding. See TEX. GOV'T CODE ANN. § 551.141 (West 2012); Smith Cnty. v. Thornton, 726 S.W.2d 2, 2-3 (Tex. 1986).

[4] Citing Attorney General Opinion JC-0294, you suggest that a county may not pay for counsel to provide criminal defense services to a county official unless charges are filed and the official is found not guilty. Request Letter at 3-4. In that opinion, city officials had been indicted, and because "[t]he city may not pay the expenses of an official who is found guilty of the charges [, the city council] must therefore defer its decision to pay the legal expenses until after disposition of the charges." Tex. Att'y Gen. Op. No. JC-0294 (2000) at 9. The opinion should not be read as precluding the payment of attorney's fees for services rendered in a criminal matter that concludes favorably at the grand jury stage.

[5] You do not ask and we do not address the authority of members of a governing body who are not subject to criminal investigation to approve payment of attorney's fees for other members who are under criminal investigation. Cf. Tex. Att'y Gen. Op. No. GA-0554 (2007) at 2 (stating that generally a proposition is enacted if it receives "a majority vote of the members present and voting at a meeting where a quorum is present" (citation and quotation marks omitted)); Comm'rs Ct. of Limestone Cnty. v. Garrett, 236 S.W. 970, 973 (Tex. Comm'n App. 1922, judgm't adopted) (stating that the "general rule is that, in the absence of an express [statutory] provision to the contrary, a proposition is carried in a deliberative body by a majority of the legal votes cast").