Untitled Texas Attorney General Opinion

ATTORNEY GENERAL OF TEXAS
GREG ABBOTT

January 20,2010

The Honorable Lynda K. Russell Opinion No. GA-0755
123rd Judicial District Attorney
Shelby County Re: Whether a county or the state must defend a
200 San Augustine Street, Suite # 12 district attorney in a civil lawsuit, and whether a
Center, Texas 75935 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."l

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)
01ernon 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. Crv. PRAC. & REM. CODE ANN. §§ lO4.001

lRequest Letter at 2-3 (available at http://www.texasattomeygeneral.gov).
The Honorable Lynda K. Russell - Page 2 (GA-0755)

(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 ofhis 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" ofthe 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

2Finally, 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.
The Honorable Lynda K. Russell - Page 3 (GA-0755)

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.

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