Texas Attorney General Opinion: KP-0031 Page: 3 of 4
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The Honorable Susan Hawk - Page 3
TEX. Loc. Gov'T CODE ANN. 157.901(a) (West 2008). A court is not likely to construe an
"action arising from the performance of public duty" as including a claim for injury caused by a
public servant acting wholly outside the course and scope of the servant's public position. See In
re Reed, 137 S.W.3d 676, 679-80 (Tex. App.-San Antonio 2004, orig. proceeding) (stating that
district attorney had no duty under section 157.901 to represent a justice of the peace in a civil
proceeding based on an indecent exposure charge, because it was undisputed that the charge did
not "aris[e] out of the performance of public duty").6
Moreover, a statute may not grant authority or impose a duty that the Texas Constitution
prohibits. See Tex. Mun. League Intergov 'tl Risk Pool v. Tex. Workers' Comp. Common, 74 S.W.3d
377, 381 (Tex. 2002). Thus, section 157.901 must be construed in light of any applicable
constitutional limitations. City of Pasadena v. Smith, 292 S.W.3d 14, 19 (Tex. 2009). Article III,
section 52(a) of the Texas Constitution prohibits the Legislature from authorizing a county to
gratuitously grant public funds for private purposes. TEX. CONST. art. III, 52(a). Prior opinions
of this office explain that a county or other political entity cannot constitutionally pay to provide
private legal representation of its officials or employees unless the entity's governing body
determines that the payment serves a legitimate interest of the entity, not merely the private interest
of the official or employee. See, e.g., Tex. Att'y Gen. Op. Nos. GA-0104 (2003) at 3; JC-0294
(2000) at 2-3; DM-488 (1998) at 2-3. Thus, section 157.901, when read in light of article III,
section 52(a) of the Texas Constitution, does not require a commissioners court to pay for private
legal representation of a county official or employee in a particular case when such payment does
not serve a legitimate interest of the county. Whether paying public funds to provide a county
official or employee with private legal representation will serve the legitimate interests of the
county "is always a question of fact that must await the good faith determination of the governing
body of the county ... in light of all relevant facts." Tex. Att'y Gen. Op. No. JM-1276 (1990) at
11.
In sum, section 157.901 of the Local Government Code does not require a commissioners
court to employ private counsel to provide legal representation for a county official or employee
unless the official or employee has been sued for an "action arising from the performance of public
duty," and the commissioners court determines in good faith that such representation serves a
legitimate interest of the county, not merely the private interest of the individual.
'See LeLeaux v. Hamshire-Fannett Indep. Sch Dist., 835 S.W.2d 49, 51 (Tex. 1992) (construing the phrase
"aris[ing] from" in the Texas Tort Claims Act's waiver for injury arising from certain acts as requiring a nexus
between the injury and the act); TDIndus., Inc. v. Rivera, 339 S.W.3d 749, 754 (Tex. App.-Houston [1st Dist.]
2011, no pet.) (examining pleadings to determine if a negligence claim "aris[es] out of the provision of professional
services" under subsection 1001.003(c) of the Occupations Code).
6Cf Tex. & Pac. Ry. Co. v. Hagenloh, 247 S.W.2d 236, 239 (Tex. 1952) ("It is not ordinarily within the
scope of a servant's authority to commit an assault on a third person.").(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/m1/3/: accessed June 24, 2024), University of North Texas Libraries, The Portal to Texas History, https://texashistory.unt.edu; crediting UNT Libraries Government Documents Department.