0308041.11
COMMISSIONERS' COURT AGENDA REQUEST
PLEASE FURNISH ONE ORIGINAL AND NINE COPIES OF THIS REQUEST AND DOCUMENTS TO BE
REVIEWED BY THE COURT.
MADE BY: Jonathan Letz OFFICE: Commissioners' Court
MEETING DATE: March 8, 2 04 TIME PREFERRED:
SUBJECT: (PLEASE BE SPECIFIC)
Consider and discuss if the County Attorney represents the Commissioners and County Judge
in civil and criminal matters related to the health insurance claim.
EXECUTNE SESSION REQUESTED: (PLEASE STATE REASON)
NAME OF PERSON ADDRESSING THE COURT:
ESTIMATED LENGTH OF PRESENTATION:
IF PERSONNEL MATTER -NAME OF EMPLOYEE:
Comm. Pct. #3
Time for submitting this request for Court to assure that the matter is posted in accordance with Title 5, Chapter
551 and 552, Government Code, is as follows:
Meeting scheduled for Mondays
THIS REQUEST RECEIVED BY:
THIS REQUEST RECEIVED ON:
5:00 P.M. previous Tuesday.

All Agenda Requests will be screened by the County Judge's Office to determine if adequate information has been
prepared for the Court's formal consideration and action at time of Court Meetings. Your cooperation will be
appreciated and contribute towards you request being addressed at the earliest opportunity. See Agenda Request Rules
Adopted by Commissioners' Court.
Consider and discuss if the County Attorney represents the Commissioner's and County
Judge in civil and criminal matters related to the health insurance claim.
The County Attorney has made comments about the possible "unlawful authorization" of
funds by the Commissioner's Court concerning the pending health insurance claim. At
the February 23, 2004 Commissioner's Court meeting the court passed an order
requesting the County Attorney forward information he has developed and request an
investigation by the District Attorney into these issues and allegations.
Brooks' treatise, county and special district law Section 21.15 and Section 21.16, as well
as State Statutes, provide that the County Attorney provide legal advise and opinions to
county elected officials.
The question here is whether or not the County Attorney is going to provide legal advise
to elected county officials as it relates to the health insurance matter or does the County
Attorney want the elected officials hire outside counsel. To date the County Attorney has
not answered questions posed to him by at least one commissioner.
Jonathan Letz
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ADMINCSTI;:A'1`I~ON OF JU817CE Pt. 4
elected county or district attorney may serve in a private capacity for any
other County or public entity so long as there is no improper use of
public property, funds, or employees" When a commissioners court does
choose to employ its owr~ county attorney or district attorney for services
not required of him, the attorney fees are simply a matter of private
negotiation.`'
Library Refererx:es:
C.J.S. district and Prosecuting Attorneys $ 20-21, 29-80.
Want's Key No. Digests, District and ProsacutingAttorneys ~+f3.
~ 21.15 Legal Advice and Opinion
A county or district attorney may become generally involved in
almost any legal matter pertaining to a county (short of litigation
perhaps} by virtue of a 1913 statute requiring a local prosecutor to
render ]egal advice or opinion to any county or precinct official upon
request (in earlier versions limited to advising the tax collector, sheriff,
and court clerks).' District offtcials, primarily district judges, are got
included within the category of those authorized to insist upon a written
opinion from a county or district attorney.
This statutory provision was enacted because these was a "riiseon-
ception in the public mind" regarding the duties of the district and
county attorneys, and the attorney general with respect to rendering
legal advice.a This responsibility for rendering Legal advice or opinion is
the primary exception to the rule that the county or district attorney is
not gexreralltiq responsible for all legal matters touching the county or
attorney for 'barioub and sundry" duties
not required in ax af1'icio capacity); Jame v.
- Voltmana, 141 S.W. 267 (Tea.Civ.App.---
San Antonio 1914, writ refd} ?COmLniesion-
ere court may not employ and eompeueate
~~ rnunty attorney for a~istance in the issu•
once of road bonds because he is under duty
to provide legal ad~zce); Grooms v. Atasavaa
County, 32 6.'W. 18S (Tex.Civ.App.2895, no
' : writ; (commiss~anere co,~rt may not retain
county 8tternep to represent county in any
• i and all possible suits although county attor-
' ney may be employed for epecitYc matters).
~' Qp. Tex. Att'y Gen. N'os. JM-198 (1964)
(cv~misaianars court ma`y pay criminal dis•
trict attorney for condemnation work per-
~ formed in private capacity); p-3656 (1941)
' (responsibility of county attorney to render
Iegal opinions dues rot give right to repre-
sent County in all civil uses; commiagivnere
court may employ county attorney to re-
move tenant From county poor farm);
0.198 r 1939) (commibsionere court may
employ and compensate county attorney to
collect an vendor lien note for sale of school
land and retain ten portent a9 attorney's
fees).
28. See, e.g., Op. Tex, Att'y Cron. No.
D-2610 (1940) (commiseivners court mFy
contract with county 8ktiorney of another
county to collect delinquent fazes}.
27. See, e.g., dp- Tax. Att'y Gen. Igoe.
0-4301 (1942) (no duty of county attorney
to exansine abetracta for county airport;
cemmiaeioners court may contract with
County attorney for this purpose and com•
pensete him); 0-864 (X939) (eommiesioners
court may employ district attorney for road
district band issue and pay hire from pro.
ceods). .
4 al.lfi
1. V,T G.A., Gooemmonti Code $ 41.007.
2. Session l.awa-Acts 1913, 33rd Leg.,
pp. 4e1, 49, ch. 26, 9 8 [emergency clause],
2sa

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GL. 2i PROSECY3'I'OIEZS AND PL'BI.YC ATTOIiNEYB ~ 21.16
county off cials.r The duty on the part of the local prosecutor to render
legal opinions to local officials is comparable to the responsibility of the
attorney+ general to render legal advice to specified officials. These
opinions have no legal force or effect but merely represznt the legal
opinion of that officeholder `
unrery Relersncee:
C.J.S. District. snd Prosecuting Attorneys $ 20-21, 290.
Waat'a Rey No. Digests, District and Prosecuting Attorneys ea8,
~ 21.16 R~epre~entation of Public Officially
Legislation enacted in 1979 permits any county or other local
government to provide private legal counsel to any public official or
employee sued for negligence except in cases of official misconduct,
willful wrongdoing, or gross negligance.r Thie counsel may be the "local
government's regularly empioyed counsel"Y unless ther® may be a con-
flict of int~reet-
An earliez statute, adopted in 1973, requires county and district
attorneys to represent county officials or employees when sued by a
private entity far acts conducted in the performance of public duties.9 It
is unclear from the statute which pf the two attorneys has the primary
responsibility in these cases. In tiny event, the commissioners court is
authorized by the same law to private counsel to a county official or
employee in the event that criminal charges are possible or if additional
legal counsel is "neceseaty or proper."`
It is not required under eitlser of these two laws that a county or
other local government be named a party, or be otherwise subject to
liability, before it may provide legal representation for its officers and
employees who are sued both officially and personally.
Legislation enacted in 1999 clarifies the authority of a county or
district attorney td represent one county official, or the county, against
another county of~iaal or employee without there existing a conflict of
interest, This law also provides that the district or county attorney can,
continue to advise ari official in a separate matter.6
An example of a legislatively imposed duty on county attorneys to
1'ep9~esent county officials i$ a 1997 law requiring the county attorney in
3. See, e.g., aP, 'Tex. Att'y Oren. Ito. ~ 21.96
3-OS (1968) (a'iminal district attorney has 1• V,T.CA., Civ, Frac. & Rem. Cale
no duty to represent county is ~anQrai evil § 102.OG1 et seq.
litigation with the ezeeptioa of rendering
legal vpiuion; no duty to represent flood 2. Id-, ~ 102.004(a).
matrol diatriet). 8. V,T.CA., Local Government Code
4. gee, e.g., Travis Cpuatiy v_ Matthews, ~ 157,841.
296 S•W.2d 691 (Te:-Civ.App.-Austin 4. Id, ~ 157,801(b).
19b0, writ ref d na•e,) (suit by saunty judge
to vompel payment of salar7). 5. Id., ~ 157.9010.
265
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