Texas Attorney General Opinion: KP-0031 Page: 2 of 4
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The Honorable Susan Hawk - Page 2
commissioners court of the county employ and pay private
counsel.
TEX. Loc. Gov'T CODE ANN. 157.901(a)-(b) (West 2008). A county's duty to provide private
legal counsel is addressed in subsection (b). See id. 157.901(b). Subsection (b) expressly refers
to subsection (a) and, therefore, subsections (a) and (b) must be construed together. White v.
Eastland Cnty., 12 S.W.3d 97, 101-02 (Tex. App.-Eastland 1999, no pet.). When a district or
county attorney is providing representation in a suit described in subsection (a), subsection (b) may
require the county to provide additional private counsel. TEX. Loc. GoV'T CODE ANN.
157.901(b) (West 2008). Also, in an apparent attempt to avoid conflicts of interest, subsection
(b) may require a county to provide private counsel when "it reasonably appears that the act
complained of may form the basis for the filing of a criminal charge." Id. The "act complained
of' refers to the acts that serve as the basis of a suit described in subsection (a). See id.; White, 12
S.W.3d at 102. Consequently, in either circumstance, subsection 157.901(b) requires a
commissioners court to provide private counsel only when a county official or employee has been
"sued . . . for an action arising from the performance of public duty." TEX. Loc. GOV'T CODE
ANN. 157.901(a) (West 2008).3
Because the duty to employ or pay for legal representation in subsection 157.901(b) is
placed on the commissioners court, it is the commissioners court that must determine, in the first
instance and subject to judicial review, whether a suit against an official or employee "aris[es]
from the performance of public duty" such that the county is required to employ and pay private
counsel. Id. 157.901(b). No judicial opinion of which we are aware, however, states how a
commissioners court is to determine whether a particular suit involves "an action arising from the
performance of public duty." A prior opinion of this office addressing the predecessor statute to
section 157.901 explained that the "suits must concern events occurring during the course of the
public servant's performance of public duties within the scope of the authority of the public office
or position." Tex. Att'y Gen. Op. No. JM-755 (1987) at 5 (construing former Revised Civil Statute
article 332c).4 While the provision was reworded in a non-substantive recodification, the phrase
"arising from" in section 157.901(a) as it is currently written plainly requires a legal nexus between
the "action" that is the basis of the suit and the public servant's "performance of public duty."
3You characterize the detention service officer's employment status as "former," although you do not state
when his employment ended. Request Letter at 1. Section 157.901 expressly applies only to a "county official or
employee sued . . . for an action arising from the performance of public duty." TEX. Loc. Gov'T CODE ANN.
157.901(a) (West 2008). Although no judicial opinion has construed whether section 157.901 would apply to a
former employee, it is unlikely that a court would allow a county to avoid its duty to fund representation of an official
or employee because the official or employee was terminated or resigned after the action that serves as the basis of
the suit occurred.
'Former article 332c of the Revised Civil Statutes stated that a county was required to provide representation
in a suit against a county official or employee "if the suit involves any act of the official or employee while in the
performance of public duties." Act of May 30, 1977, 65th Leg., R.S., ch. 414, 2, 1977 Tex. Gen. Laws 1116, 1116
(repealed 1987).(KP-0031)
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Texas. Attorney-General's Office. Texas Attorney General Opinion: KP-0031, text, August 10, 2015; (https://texashistory.unt.edu/ark:/67531/metapth1051096/m1/2/: accessed July 8, 2024), University of North Texas Libraries, The Portal to Texas History, https://texashistory.unt.edu; crediting UNT Libraries Government Documents Department.