Office of the Attorney General
Honorable Billy Fred Lacy
Opinion No. MW-157
Re: Article 332c, V.T.C.S., and the expenditure of county funds as reimbursement for attorneys' fees incurred in defending an ouster suit.
Dear Mr. Lacy:
You have requested our opinion regarding the authority of Potter County under article 332c, V.T.C.S., to reimburse the Sheriff and County Attorney for the attorneys' fees these two officers incurred while defending an ouster suit brought against them by the District Attorney. The District Attorney brought the action for removal under the terms of article 5970, V.T.C.S., and your question in whether the costs of defending this suit can be borne by the county in accordance with the provisions of article 332c, V.T.C.S. It is our opinion that the employment of private counsel that is provided for in section 3 of the latter article was not intended to include the hiring of such counsel when the action involved is an ouster suit seeking the removal of county officials.
Article 5970, V.T.C.S., and article V, section 24 of the Texas Constitution have been held to require a suit for removal to be brought in the name of the state. As the Texas Supreme Court noted in Garcia v. Laughlin, 285 S.W.2d 191, 194 (Tex. 1955), '[i]ndividial citizens have no private interest distinguishable from the public as a whole and have no right to maintain an ouster suit without being joined by a proper state official.'
These suits must follow the procedures set out by the Texas Legislature in articles 5970-5997, V.T.C.S., and must be sworn to and conducted in the name of the State of Texas. Childress County v. Sachse, 310 S.W.2d 414, 419 (Tex. Civ. App.--Amarillo), writ ref'd n.r.e. by per curiam, 312 S.W.2d 380 (1958). See V.T.C.S. art. 5977 (proceedings conducted in name of state).
Article 332c, V.T.C.S., was enacted to provide legal representation to county officials and employees who are sued while in the performance of public duties and are the subject of an action brought by a 'nonpolitical entity.' Section 1 of this act states that a 'nonpolitical entity' does not include 'the state, a political subdivision of the state, a city, a special district, or other public entity.' It is clear that the Stae of Texas is a political entity, and therefore article 332c does not authorize the payment of attorneys' fees. See Letter Advisory No. 24 (1973).
For an analysis of those instances in which the case law permits a city or county to pay the legal fees of officials who have acted within the scope of their official duties see Attorney General Opinions H-887 (1976) and WW-1464 (1962). See generally Letter Advisory No. 24 (1973).
A county cannot rely on the provisions of article 332c, V.T.C.S., as authority to pay the attorneys' fees of officials who are subjected to an ouster suit brought under the provisions of article 5970, V.T.C.S.
Very truly yours,
Attorney General of Texas
John W. Fainter, Jr.
First Assistant Attorney General
Ted L. Hartley
Executive Assistant Attorney General
Prepared by Walter Davis
Assistant Attorney General