Untitled Texas Attorney General Opinion

KEN PAXTON

ATTORNEY GENERAL OF TEXAS

July 13, 2015

The Honorable Susan Hawk Opinion No. KP-0027

Dallas County District Attorney

Civil Section Re: Whether section 157.901 of the Local

411 Elm Street, 5th Floor Government Code requires a county to provide

Dallas, Texas 75202 representation to a county judge involved in a

disciplinary proceeding before the State

Commission on Judicial Conduct (RQ-0005-KP)

Dear Ms. Hawk:

You ask whether Dallas County has "a duty to defend a county official or employee in a

disciplinary proceeding arising from an alleged ethical violation committed in the performance of

public duties." 1 You explain that a county judge has asked the county to "provide representation

in defending against a disciplinary proceeding before the State Commission on Judicial Conduct

[the "Commission"] arising from her conduct while on the bench." Request Letter at 1. Subsection

157.901(a) of the Local Government Code requires the county to represent "[a] county official or

employee sued by any entity, other than the county with which the official or employee serves, for

an action arising from the performance of public duty." TEX. Loe. Gov'TCODEANN. § 157.901(a)

(West 2008). You frame your question in two parts: (1) whether the term "sued" in subsection

157.901(a) encompasses a disciplinary proceeding brought by the Commission; and (2) whether.

an alleged ethical violation qualifies as "an action arising from the performance of public duty" as

required by the provision. Request Letter at 2-3; TEX. Loe. Gov'TCODE ANN.§ 157.901(a) (West

2008).

We are guided by the principle that "[a] county has no power or duties except those which

are clearly set forth and defined by the Constitution and the State statutes." Harrison Cnty. v. City

of Marshall, 253 S.W.2d 67, 69 (Tex. Civ. App.-Fort Worth 1952, writ refd). In construing a

statute, a court's "primary objective is to ascertain the Legislature's intent." Union Carbide Corp.

v. Synatzske, 438 S;W.3d 39, 51 (Tex. 2014). To achieve this goal, a court will construe the words

of a statute "according to their plain and common meaning unless a contrary intention is apparent"

from the context of the statute. Nathan v. Whittington, 408 S.W.3d 870, 872 (Tex. 2013); see also

TEX. Gov'T CODE ANN.§ 311.0ll(a) (West 2013) (providing that "[w]ords and phrases shall be

read in context and construed according to the rules of grammar and common usage"). The word

1

Letter from Honorable Susan Hawk, Dallas Cnty. Dist. Att'y, Civil Section, to Honorable Ken Paxton, Tex.

Att'y Gen. at 1 (Jan. 13, 2015), https://www.texasattomeygeneral.gov/opinion/requests-for-opinion-rqs ("Request

Letter").

The Honorable Susan Hawk - Page 2 (KP-0027)

"sue" means "to institute a lawsuit" against another party. BLACK'S LAW DICTIONARY 1570 (9th

ed. 2009); see also id. at 967 (defining "lawsuit" by cross reference to the term "suit"), 1572

(defining "suit" as "[a]ny proceeding by a party or parties against another in a court oflaw"); NEW

OXFORD AMERICAN DICTIONARY 1738 (3d ed. 2010) (providing that "sue" means to "institute legal

proceedings" against a person or institution), 1392 (defining a "proceeding" in the context of law

as an "action taken in a court to settle a dispute"). A related provision in the same subchapter uses

the word "suit" in reference to the duty of a county attorney or district attorney to provide

representation in section 157.901. See TEX. Loe. Gov'T CODE ANN.§ 157.9015(a) (West 2008).

A Texas court has acknowledged the Legislature's "obvious" intent in section 157.901 to refer "to

civil suits." White v. Eastland Cnty., 12 S.W.3d 97, 102 n.4 (Tex. App.-Eastland 1999, no pet.). 2

The same court noted that the section was the Legislature's way of addressing "the problem of

frivolous lawsuits against county employees and their cost of counsel." Id. at 104. The court

further observed that the word "sue" has remained largely unchanged throughout the evolution of

the statute. 3 See id. at 102 n.4.

The Legislature has, in analogous contexts, referred to the duty oflegal representation more

broadly, suggesting that it sees a distinction between litigation in a court of law and some other

legal matter. For example, the attorney general is required to represent a particular public official

"if a suit or other legal action is brought or threatened to be brought against that person in

connection with the person's performance of the official duties of the office." TEX. HUM. REs.

CODE ANN.§ 101.055 (West 2013)4 (emphasis added). Similarly, the Wharton County Attorney

is required to represent the state, the county, and county officials "in civil matters." TEX. Gov'T

CODE ANN.§ 45.34l(a), (d) (West 2004); see also TEX. AGRIC. CODE ANN.§ 14.013 (West 2004)

(providing that the "department may intervene in a suit . . . or any other legal action . . . . "

(emphasis added)); TEX. Gov'T CODE ANN.§ 618.006 (West 2012) (referring to "a suit or other

legal action against an authorized officer" (emphasis added)). The Legislature made no such

distinction here and evidenced no intent to give the word "suit" a broader meaning. See FM Props.

Operating Co. v. City of Austin, 22 S.W.3d 868, 885 (Tex. 2000) (relying on the principle of

statutory construction that the Legislature knows how to enact laws effectuating its intent).

2

As a whole, cases considering section 157.901 have been limited to those clearly involving either civil or

criminal suits in a court of law. See, e.g., Turner v. Cook, 502 S.W.2d 824, 824 (Tex. Civ. App.-Corpus Christi

1973, no writ) (involving a suit against the county and its officials); Condit v. Nueces Cnty., 976 S. W.2d 278, 279

(Tex. App.-Corpus Christi 1998, no pet.) (concerning a suit in federal court); White, 12 S.W.3d at 102 n.4

(concluding that a "suit" in section 157.901 does not include a criminal indictment).

3

As the court noted, "[t]he phrase 'in a suit instituted by a non-political entity' in [Texas Revised Civil

Statutes article 332c, the original predecessor of section 157.901,] was changed to '[a] county official or employee

sued by a nonpolitical entity' in Section 157.061in1987, and then changed to '[a] county official or employee sued

by any entity, other than the county with which the official or employee serves' in the current Section 157.901 in

1989." White, 12 S.W.3d at 102 n.4.

4

Redesignated by Act of Mar. 30, 2015, 84th, Leg., R.S., S.B. 219, § 4.361, sec. lOIA.256 (to be codified at

TEX. HUM. RES. CODE ANN.§ IOIA.256) (effective immediately).

The Honorable Susan Hawk - Page 3 (KP-0027)

Accordingly, a court is unlikely to conclude that the Legislature intended the word "sue" in section

157.901 to extend to a disciplinary proceeding before the Commission.

This construction is supported by an examination of the proceedings of the Commission.

The Commission is a state agency within the judicial branch of government charged with

administering judicial discipline. TEX. Gov'T CODE ANN.§ 33.002(a-1) (West Supp. 2014); see

also TEX. CONST. art. V § 1-a(2) (establishing the Commission). Judicial misconduct is "the

willful or persistent violation of rules promulgated by the Supreme Court of Texas, incompetence

in performing the duties of the office, willful violation of the Code of Judicial Conduct, or willful

or persistent conduct that is clearly inconsistent with the proper performance of [the judge's] duties

or casts public discredit upon the judiciary or administration of justice." TEX. CONST. art. V § l-

a( 6). Although the Commission may discipline a judge, its proceedings "are not considered

criminal proceedings" because the function of the Commission "is not to punish; instead, its

purpose is to maintain the honor and dignity of the judiciary and to uphold the administration of

justice for the benefit of the citizens of Texas." In re Lowery, 999 S.W.2d 639, 648 (Tex. Rev.

Trib. 1998, review denied). And while some of its proceedings may resemble those in a court of

law, 5 the Legislature has unequivocally stated that "[t]he Commission does not have the power or

authority of a court." TEX. Gov'T CODE ANN. § 33.002(a-l) (West Supp. 2014). "The

Commission cannot exercise appellate review over a case or change the decision or ruling of any

court, nor can the Commission intervene in a pending case or proceeding .... The Commission

cannot award damages or provide monetary relief to complainants," nor can the Commission itself

remove a judge from the bench. STATE COMM'N ON JUDICIAL CONDUCT ANNUAL REPORT, at 7

(2014); see also In re Rose, 144 S.W.3d 661, 672 (Tex. Rev. Trib. 2004, affd) (stating that the

Commission's "reports are considered authoritative'' on the judicial disciplinary process).

Because a court is unlikely to conclude that the term "sued" in subsection 157.90l(a) of

the Local Government Code encompasses a disciplinary proceeding of the Commission on Judicial

Conduct, subsection 157.901(a) likely does not require a county to defend a judge in a proceeding

before the Commission. 6 Given this conclusion, we need not address whether an alleged ethical

violation qualifies as "an action arising from the performance of public duty."

5

See, e.g., TEX. Gov'T CODE ANN. §§ 33.022(c)(2)(A)(i), (ii) (West 2004) (authorizing the Commission,

during a full investigation, to order the judge to "submit a written response" to allegations and "appear informally

before the commission"), 33.022(g}-(h) (describing the institution of"formal proceedings," at which time "the matter

shall be entered in a docket" and a notice sent to the judge that specifies "the charges against the judge and the alleged

facts" on which they are based); TEX. CONST. art. V, § 1-a(l 1) (entitling a judge subject to a Commission formal

proceeding to "the right of discovery of evidence" and "due process of law," including "the right to notice, counsel,

hearing, confrontation of his accusers, and all such other incidents of due process as are ordinarily available in

proceedings . . . upon proof of which a penalty may be imposed").

6

You ask only about a county's duty under subsection 157.90\(a) and our opinion is limited accordingly. We

do not address whether a county commissioners court has the discretion under other authority of law to provide

representation to a county judge in a proceeding before the Commission. See White, 12 S.W.3d at 104 (holding that

"the decision to provide or not provide counsel is one of governmental policy and discretion").

The Honorable Susan Hawk - Page 4 (KP-0027)

SUMMARY

Because a court is unlikely to conclude that the term "sued"

in subsection 157.901(a) of the. Local Government Code

encompasses a disciplinary proceeding of the Commission on

Judicial Conduct, subsection 157.901(a) likely does not require a

county to defend a judge in a proceeding before the Commission.

Very truly yours,

~?~

KEN PAXTON

Attorney General of Texas

CHARLES E. ROY

First Assistant Attorney General

BRANTLEY STARR

Deputy Attorney General for Legal Counsel

VIRGINIA K. HOELSCHER

Chair, Opinion Committee

BECKY P. CASARES

Assistant Attorney General, Opinion Committee