Attorney General Opinion JM-0633

THE .ATTI-R~~~~~ESERAL A February 19, 1987 Honorable Mike Driscoll Aarris County Attorney 1001 Preston, Suite 634 Eouston, Texas 77002 Opinion No. JM-633 Re: Whether the Earris County Attorney is authorized or required to represent or advise the sheriff in certain cases Dear Mr. Driscoll: You advise this office that the following questions have been prompted by the Rarris County Sheriff’s Department Civil Service CoomIssion seeking advice from your office regarding its official duties and a case pending before it. 1. Is the Barris County Attorney authorized or required to advise members of the Barris County Sheriff’s Department Civil Service Commission in regard to their official duties? 2. Is the Earris County Attorney required to advise the Earris County Sheriff’s Department Civil Service Commission in regard to cases pending before it? 3. Is the Bards County Attorney authorized or required to represent the sheriff at hearings before the Harris County Sheriff’s Department Civil Service Commission? The Earris County Sheriff’s Department Civil Service Cormnfssion was created pursuant to article 2372h-8, V.T.C.S. The commission is composed of three members having the authority to “make. publish. and enforce rules” relating to personnel matters within the sheriff’s department. See V.T.C.S. art. 2372h-8, 554, 6(a). Consequently, we conclude thatthe Rarris County Sheriff’s Department Civil Service Cmission is an administrative agency of the county. Its powers are those expressly granted by the legislature, together with those necessarily implied from the authority conferred or duties imposed. See Stauffer V. City of San Antonio, - 344 S.W.2d 158 (Tex. 1961). p. 2864 Eooorable Kike Driscoll - Page 2 (JM-633) Moreover, it is apparent from the reading of the statute that each member is a “public official” of Barris County. The members, as individuals and as a body, exercise a sovereign function of goveroment far the benefit of the oublic largely independent of others’ control. See Aldine Iodependent’School District v: Standley. 280 S.W.2d 570 (Tcx. 1955); see also Northwestern National Life Insurance Co. V. Black, 383 S.W.2d 806 (Tax. Civ. App. - Texarkaoa 1964. writ rcf’d n.r.e.‘). Once an individual is aovointed to the commission, he is entitled to serve a two year term ‘independent of the control of the sheriff or other appointing officials. V.T.C.S. art. 2372h-8, 04(b). Tou first ask whether the Rarris County Attorney Is authorized or required to advise members of the commission in regards to their official duties. We believe that the county attorney is required. under section 41.007 of the Government Code, to give written advice, (upon request) to members of the commission. See Govt. Code 541.007. - Section 41.007 provides in part: A district or county attorney, on request, shall give to a county or precinct official of his district or county a written opinion or written advice relating to the official duties of that official. (Emphasis added). Govt. Code 141.007. Consequently, section 41.007 is dlspositive of your first question requiring the county attorney to give written advice to members of the commission in regard to their official duties. IO your second question you ask vhether the county attorney is required to advise the commission in regard to cases pending before it. We understand that the word “case” refers to a disciplinary or grievance proceeding before the commissioo. See Earris County Sheriff’s Department Civil Service Regulations. Rules 12. 13 (1982). In these administrative proceedings before the commisslon. the sheriff is ao adverse party to the employee instituting the appropriate proceeding. See Id. Rule 2.22 (Defioitioo of Hearing). This poses a possible conflict between the county attorney’s duty to represent the sheriff and his duty to advise the commissioo. Article V. section 21, of the Texas Constitution provides in pertioaot part: A county attorney, for counties in which there is not a resident criminal district attorney. shall be elected by the qualified voters of each county, who shall be commissioned by the Governor, and hold his office for the term of four years. p. 2865 gooorable Mike Driscoll - Page 3 (JM-633) In case of vacancy the comissiooers court of the county shall have the power to appoint a county attorney until the oext general election. The county attorneys shall represent the state lo all cases in the district and inferior courts in their respective counties; but if any county shall be included in a district In which there shall be a district attorney, the respective duties of district attorneys and county attorneys shall in such counties be regulated by the legislature. l’he legislature may provide for the election of district attorneys in such districts, as may be deemed necessary. and make provision for the compensation of district attorneys and county attorneys. District attorreys shall hold office for a term of four years, and until their succeesors have qualified. As amended Nov. 2, 1954. Bards County is ooe of the counties having both a county attorney and a district attorney. ‘fhus. the legislature is authorized to regulate the duties of the county attorney in Harris County. ‘fhe legislature has defined the duties of the Harris County Attorney. It is the primary duty of the county attorney . . in Ear&3 County or nis assistants to- represent the state, Rarrls County, sod the officials of Fiarris County lo all civil matters pending before the courts of Harris County and any other courts in which the state, the county, or the officials of the county have matters pending. The county attorney shall represent the Harris County Flood Control District and perform the other duties Imposed by this section without any additional fee, compensation, or prerequisite other thao that paid by Harris County out of its officers’ salary fund. (Emphasis added). Govt. Code 145.201. You have informed us that the sheriff often requests the advice of the county attorney regarding the future or prior termination of an employee who may appeal or has appealed his dismissal to the com- mission. At the same time, the commission may seek advice regarding its statutory powers and duties and how these pavers may be exercised in a particular case. The conflict may,also arise when the comsission may seek advice where the sheriff disagrees with Its ruling. - p. 2866 Eooorable Mike Driscoll - Page 4 (JM-633) Section 45.201 of the Government Code gives the county attorney authority to represent the sheriff in court. The provisions also give the county attorney the authority to represent the co~lssloo in - court. IO Hill v. Texas Water Quality Board, 568 S.W.Zd 738 (Ter. Civ. APP. - Austin 1978. writ ref’d o.r.e.), the court in addressing the authority vested in the Attorney General of Texas under the Texas Constitution, article IV, section 22, and county and district attorneys under the Texas Constitution , article V, section 21 stated: Thus, either the Attorney General or a county or district attorney may represent the State in a particular situatioo, choices, but these are the only whichever official represents the State exercises exclusive authority and If services of other lawyers are utilized, they must be ‘lo subordination’ to his authority. (Emphasis supplied). IO Attorney Geoeral Opinion J’M-28 (1983). after citing Hill v. Texas Water Quality Board vith approval for the foregoing proposition. the matter of the attorney general representing parties with conflicting interests was addressed: You also ask whether the .attorney general is prohibited from representing the office of the public utility counsel in court where the Public utility colmsission* also represented by the attorney general. is ao adverse party. We have been unable to find a coostitutlooal provision which would prevent the attorney general from representing opposing parties In a lawsuit. The attorney general has a duty under article IV, section 22, to represent the state in the supreme court. Where two state agencies are 00 opposfte sides of a lavsuit, the attorney general is required to represent both agencies. IO at least one case. the attorney geoeral and three assistant attorneys general were counsel of record for one agency. while another assistant attorney general was counsel of record for the opposing party. Texas National Guard Armory Board v. McCrav. 126 S.W.Zd 627 (Tex. 1939). . . . . Article 6252-26, V.T.C.S., authorizes the attorney general to defend officers and employees p. 2867 Eooorable Mike Drlscoll - Page 5 (JM-633) of the state against certain kinds of lawsuits arisiog out of acts or omissions by that person in the scope of his office or employment. Section 3(a) of article 6252-26 provides in part: It is not a conflict of interest for the attorney geoeral to defend a person or estate under this Act and also to prosecute a legal action against that person or estate as may be required or authorized by law if differeot assistant attorneys general are assigned the responsibility for each action. Thus, while the attorney general defends an individual for actions undertaken within the scope of his state office or employment, he may at the same time sue that person. as long as different assistant attorneys general are assigned to each action. We have been unable to find a constftutiooal provision which would prevent the county attorney from representing any of the parties falling within the ambit of his responsibilities heretofore outlined. Thus * the fact that the Rarris County Sheriff's Department Civil Service Commissiou may be in an adverse positioo to a party appearing before the commission does not relieve the county attorney of his obligation to advise the commission in regard to cases pending before it. In the l veot that it is deemed advisable to employ private counsel, we find the opinion in Driscoll v. Earris County Commis- sioners Court, 680 S.W.2d 569 (Tex. App. - Houston 114th Dist.] 1984, writ ref'd 0.r.e.) to be controlling. After recognizing the duty imposed on the Harris County Attorney to represent Harris County, its offices and officials, the court held the employment of private counsel must be in accordance with article 2371~. V.T.C.S.. which states that special couosel shall be named by the county attorney . . . and such employment shall be made for such time and on such terms as said county attorney . . . may deem proper and expedient subject to the approval of the commissioners court. You ask vhether the Earris County Attorney is authorized or required to represent the sheriff at hearings before the Harris County Sheriff's Department Civil Service Commissioo. As noted above, the county attorney has the primary duty to p. 2868 Eonorable Mike Driscoll - Page 6 (JM-633) represent the state, Aarris County, and the officials of Rarris County in all civil matters pending before the courts of Earris County aod any other courts in which the state, the county, or the officials of the county have matters pending. Govt. Code 145.201. It would appear that the county attorney is only required to represent an official in a court proceeding. However, ve do not believe that the county attorney is prohibited from representing the sheriff before the Earris County Sheriff's Department Civil Service C~issioo. The representation of a client in a court proceeding may entail representatioo and sdvice before the suit is actually instituted in order to eosure effective representation in the court actioo. SUMMARY The Ranis County Attorney is required to advise members of the Rarris County Sheriff's Department Civil Service Commission regarding their official duties. The county attorney is also required to advise such c~ssioo lo regard to cases peoding before the commission. The county attorney may represent the sheriff in a case pending before the c~ssioo. Very truly your L-L-b . JIM MATTOX Attorney General of Texas JACR EIGRTOWRR First Assistant Attorney General NARY KELLER Executive Assistant Attorney General RICR GILPIN Chairmao, Opinion Committee Prepared by Tom G. Davis Assistant Attorney General p. 2869