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BACKGROUND AND PURPOSE
Current law
tasks county auditors with ensuring strict compliance with financial laws.
Interested parties note that a county auditor's primary enforcement tool is
the ability to prohibit payment of a claim that is not legally compliant, an
action that necessarily involves the interpretation of state law and could
place the auditor at greater risk for internal suit. Current law also permits county officers and employees to be
represented by the county or district attorney in a third party legal action.
In counties without an elected attorney, the commissioners court may contract
for legal counsel. However, interested parties assert that this practice
potentially leaves county officials, including a county auditor, without a
resource for legal consultation when the need for clarification arises.
Interested
parties further assert that in certain cases where representation is lacking,
it is increasingly common for a lawsuit to name a county officer or employee
in both an official and individual capacity and for the issue to be referred
to the Texas attorney general. The parties contend that efforts should be
made to ensure greater local collaboration in these matters and to reduce the
number of legal requests submitted to the attorney general. Interested
parties note that it is necessary to clarify in relevant statutes that a
county official, including a county auditor, is authorized to request
assistance from the district or county attorney in interpreting statute.
C.S.H.B. 3762 seeks to address these issues relating to the entitlement of
county officials to legal assistance.
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INTRODUCED
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HOUSE COMMITTEE
SUBSTITUTE
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SECTION 1. Section 157.901,
Local Government Code, is amended by adding Subsection (d) to read as
follows:
(d) At the request of a
county official or employee, the attorney general may represent the
official or employee in an action arising from:
(1) the performance of a
public duty; or
(2) the refusal to take a
formal action that the official or employee considers to be contrary to
law.
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No
equivalent provision, but see SECTION 1 below.
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SECTION 2. Subchapter Z,
Chapter 157, Local Government Code, is amended by adding Section 157.9011
to read as follows:
Sec. 157.9011.
REPRESENTATION IN MANDAMUS ACTION. (a) A county official is entitled to be
represented in a mandamus action by the district attorney of the district
in which the county is located, the county attorney, or both.
(b) A county official is
not required to accept the legal counsel provided in this section.
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No
equivalent provision.
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SECTION 3. Section
157.9015(a), Local Government Code, is amended to read as follows:
(a) It is not a conflict of
interest for a district or county attorney under Section 157.901 to defend
a county or a county official or employee sued by the county or
another county official or employee and also to advise or represent the
opposing party on a separate matter arising from the performance of a
public duty, regardless of whether the attorney gives the advice or
representation to the opposing party before the suit began or while the
suit is pending.
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No
equivalent provision.
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SECTION 4. Subchapter Z,
Chapter 157, Local Government Code, is amended by adding Section 157.9016
to read as follows:
Sec. 157.9016. RECOVERY
OF LEGAL FEES. (a) A county or district attorney who is not fully funded
to provide representation under Section 157.901(a) is entitled to
reasonable legal fees paid from the general fund or a legal expenses fund
of the county.
(b) The attorney general
is entitled to reasonable legal fees for providing representation under
Section 157.901(d) to be paid from the general fund or a legal expenses
fund of the county in which the county official or employee requesting the
representation serves or is employed.
(c) Legal fees paid under
this section from the county's general fund may be recovered by court order
from a person, other than the county, a county official, or a county
employee, initiating a legal action.
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No
equivalent provision.
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SECTION 5. Section 157.903,
Local Government Code, is amended to read as follows:
Sec. 157.903. AUTHORITY TO
INDEMNIFY ELECTED AND APPOINTED COUNTY OFFICERS. The commissioners court
of a county by order may provide for the indemnification of an elected or
appointed county officer against personal liability for the loss of county
funds, [or] loss of or damage to personal property, or other
losses incurred by the officer in the performance of official duties if
the loss was not the result of the officer's negligence or criminal action.
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No
equivalent provision.
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SECTION 6. The changes in
law made by Sections 157.901 and 157.9015(a), Local Government Code, as
amended by this Act, and Section 157.9011, Local Government Code, as added
by this Act, apply only to an action filed on or after the effective date
of this Act. An action filed before the effective date of this Act is
governed by the law in effect when the action was filed, and the former law
is continued in effect for that purpose.
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No
equivalent provision.
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No
equivalent provision, but see SECTION 1 above.
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SECTION 1. Section 41.007,
Government Code, is amended to read as follows:
Sec. 41.007. OPINIONS TO
COUNTY AND PRECINCT OFFICIALS. (a) A [district or county
attorney, on request, shall give to a] county or precinct official may
request in writing [of his district or county] a written opinion
or written advice relating to the official duties of that official,
including the interpretation of a statute relating to the official duties
of the official, from the district or county attorney.
(b) Not later than the
30th day after the date a written request is submitted under Subsection
(a), the district or county attorney shall:
(1) grant the request and
provide the written opinion or written advice; or
(2) deny the request in
writing.
(c) If a county or
precinct official is sued for an action arising from the performance of a
public duty as a result of following an opinion or the advice provided
under Subsection (a), the county or precinct official is entitled to
representation as provided by Section 157.901, Local Government Code.
(d) In this section,
"county official" includes a county auditor.
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No
equivalent provision.
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SECTION 2. The changes in
law made by Section 41.007, Government Code, as amended by this Act, apply
only to a request submitted for a written opinion or written advice on or
after the effective date of this Act. A request submitted before the
effective date of this Act is governed by the law in effect when the
request was submitted, and the former law is continued in effect for that
purpose.
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SECTION 7. This Act takes
effect September 1, 2013.
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SECTION 3. This Act takes effect immediately if it receives a
vote of two-thirds of all the members elected to each house, as provided by
Section 39, Article III, Texas Constitution. If this Act does not receive
the vote necessary for immediate effect, this Act takes effect
September 1, 2013.
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