Texas Prosecutor, January-February 2019

“Cover that up!” The reassurance of a ­liability policy

“Needing insurance is like needing a parachute. If it isn’t there the first time, chances are you won’t be needing it again.”
— Unknown (but lucid) source

As you glide through these pages, reading think pieces, stories, and pointers from your colleagues about prosecuting crime and seeing that justice is done, what could build on that enthusiasm more than taking a momentary pause to think about … insurance? Sure. To use a self-generated, cheesy analogy, insurance coverage is like your socks. It’s probably a good idea to have insurance, and there doesn’t appear to be much reason to think about it until the point of exposure. But just as surely as your big toe will be laid bare for the world to see at the TSA checkpoint if your sock has a hole, so too will inadequate insurance coverage become a matter of consternation (to say the least) when a citation or—worse yet—a federal court summons lands on your desk.
    No one needs me to add another stanza to the refrain often seen in the pages of the very songbook you’re reading right now about how cool it is to be a prosecutor. Even so, I completely agree that we have the greatest job in the legal profession and the second greatest job in the world (I concur with Jeff Foxworthy that No. 1 would be shooting frozen chickens from a cannon at the windshields of airplanes). Yet, it can’t be denied that if we’re doing our jobs even reasonably competently, someone is going to wind up feeling a bit chippy about the ordeal. While violence remains a happily rare outcome from that seething anger, litigation is less so. As you do your job, then, you may ask yourself, “Can I get sued over this?” The answer is clichéd but largely accurate. All it takes to file a lawsuit is a bad attitude and about $300.
    Of course, that doesn’t mean the lawsuit will be meritorious. In fact, the vast majority of civil suits for damages against prosecutors are abjectly frivolous. In considerable part, that is true because of prosecutorial immunity. A painstaking discussion of prosecutorial immunity would be really long, and probably really dull, and it wouldn’t really be germane to the ultimate purpose of this writing. Suffice it to say that prosecutors who are sued for acts within their duties that are “intimately associated with the judicial phase of the criminal process” have absolute immunity from such lawsuits.1 In case you lack experience with civil litigation, it is worth pointing out that an absolute immunity is strong medicine, indeed. The immunity effectively cuts off the suit early in the process, generally even before discovery begins. But someone has to assert it for the court to apply it. And, while that can be done pro se, the old saying that “the lawyer who represents himself has a fool for a client” didn’t become an old saying just because it’s pithy.
    If you’re sued, then, you probably will need someone to file the appropriate responsive pleading on your behalf. As the rather indelicate police adage goes, “You may beat the rap, but you won’t beat the ride.” Though lawsuits may be unavoidable, the headaches that come with worrying about representation don’t need to be.

The county ride
For those who haven’t already moved along to see if any pictures of you at a recent seminar made it into this issue, and for those who may be assistants, key personnel, or elected county attorneys, Texas law authorizes in-house help. Specifically:

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 is entitled to be represented by the district attorney of the district in which the county is located, the county attorney, or both.2

    Where criminal charges may arise from the same facts that generate the lawsuit or where additional counsel is necessary, the official or employee is entitled to have the commissioners court employ and pay private counsel.3 There is no requirement to accept the representation,4 but the statute does not obligate the commissioners court to fund representation by a lawyer of the officer’s or employee’s choice, either. On its face, the statute provides a measure of assurance for county attorneys, assistant prosecutors, and staff members (who are paid from county funds) if the commissioners court determines the suit against any of them “arises from the performance of public duty.”5 But what about cases in which the commissioners court does not or will not make that determination? And what about elected district attorneys?
    Let’s consider the latter circumstance first, as its answer is instructive in both instances. Within the context of the Local Government Code’s representation provision, a district attorney is not a county officer or employee.6 On the other hand, a district attorney is entitled to be defended by the attorney general in an action in federal court if:
    1)    the district attorney is a defendant because of his or her office;
    2)    the cause of action accrued while the plaintiff was confined the Texas Department of Criminal Justice;
    3)    the district attorney requests the attorney general’s assistance in the defense; and
    4)    there is no action pending against the district attorney in which the attorney general is required to represent the State.7
    Anecdotally, district attorneys have reported, at best, mixed results in securing federal court representation from the attorney general’s office—and that says nothing of cases filed against district attorneys in state court. Essentially, then, that brings us back to the authority of the commissioners court. Even where the Local Government Code does not require county-funded defense in a given case, the county retains a common-law authority to provide a civil defense if the commissioners court finds that the suit involves a public interest requiring a vigorous defense or that paying the legal fees serves a public (not merely the officer’s or employee’s private) interest.8 Additionally, the court must determine that the officer or employee committed the alleged act or omission that is the basis of the lawsuit while acting in good faith and within the scope of official duties.9 That authority applies in cases involving district officers, as well as county officers and employees.10 Existence of those factors is no guarantee, though, because the common-law authority is discretionary, not mandatory.11

Is there something else out there?
Not every county has the in-house capability to provide effective civil defense. Where that may be true, alternatives exist. Texas commissioners courts are statutorily authorized to provide insurance to protect “a county officer or employee” from “liability for losses arising from the performance of official duties by the officer or duties of employment by the employee, including losses resulting from errors or omissions of the officer or employee or from crime, dishonesty, or theft.”12 Included within the scope of who may be “a county officer or employee” in this context are district attorneys.13 Coverage of this sort may be provided through a self-insurance program or risk retention group under Chapter 2259 of the Government Code or through a governmental pool operating under Chapter 119 of the Local Government Code.14 Even if some commissioners courts are woefully unappreciative of prosecutorial valor and value, elected prosecutors are authorized to use “state or county funds appropriated or allocated for the expenses of [his or her] office” or discretionary funds to purchase liability insurance or similar coverage—from the same sources available to commissioners courts—to insure against claims arising from the performance of official duties.15
    “Now, wait,” you may be saying. “Don’t I recall something about the Attorney General putting the kibosh on defending myself out of forfeiture funds?” Yes, you do. Sort of. Noting that it has narrowly construed the concept of “official purposes” of the office, as required for expenditure of forfeiture funds under Code of Criminal Procedure Art. 59.06, the Attorney General’s Office has concluded that legal defense of the elected district attorney in a civil suit is not an official purpose of the office for which forfeiture funds may be used.16 The legislature subsequently amended Art. 59.06 to provide that an official purpose of the office may include “legal fees, including court costs, witness fees, and related costs, including travel and security, audit costs, and professional fees.”17 While the change in law may affect the vitality of the Attorney General’s opinion, it doesn’t establish whether adequate funds exist in the forfeiture account at any given time to pay for a civil defense lawyer. Either way, even under the narrow construction of the Attorney General’s Office, its opinion did not pass upon whether forfeiture funds could be used to purchase liability insurance, as opposed to directly using them to pay defense counsel. That’s probably because—as mentioned above—county and district attorneys have explicit statutory authority to purchase liability insurance for official duty claims “from accounts maintained by the county or district attorney, including but not limited to the fund created by charges assessed by the county or district attorney in connection with the collection of ‘insufficient fund’ negotiable instruments.”18 Taken together, those factors make it worthwhile to at least consider insurance.
    Where to start? Several private, commercial insurers offer liability insurance, as well as some variant of “errors and omissions” coverage that may provide a measure of protection against official duty claims. Whether any given company’s premium rates and its fiscal stability are such that it may be an attractive provider are matters for informed comparative shopping. How complicated that may be is, in part, a function of how much will be spent. If the premium outlay will exceed $50,000, acquisition of coverage will need to comply with the County Purchasing Act, because insurance is included within the definition of an “item” subject to the act’s procedures.19 If your county has a purchasing agent, it’s probably advisable to involve that person in the review of available insurers because purchasing agents tend to be, for lack of a better term, trained shoppers.20 In doing that shopping, it may be worthwhile to consider an alternative with a bit more governmental flavor.
    You may recall the earlier discussion of sources from which commissioners courts, or prosecutors, may obtain liability coverage. Those sources include a governmental pool operating under Chapter 119 of the Local Government Code. In practice, that means the Texas Association of Counties Risk Management Pool (TAC RMP). The TAC RMP has been around for more than 40 years. It is governed by a board of trustees consisting of elected county officials from around the state. Meetings of that board are subject to the Texas Open Meetings Act. Beyond the fact that the TAC RMP has to clear some of the same hurdles as a commissioners court in running its affairs, it is worth noting that the staff that handles the day-to-day operations of the pool comprises people with substantial experience in county government who understand the intricacies and peculiarities of the way Texas counties work.
    TAC RMP is no small-time, Mom-and-Pop outfit. The pool fund exceeds half a billion dollars, and the protection it provides is backed up by excess liability coverage through County Reinsurance Limited, reinforcing the stability and solvency of the RMP’s claims capacity.21 Among the panoply of coverages offered through the TAC RMP is Public Officials Liability (POL) coverage, which is most germane to the subject at hand here.
    The coverage provided by POL policies extends to claims arising from a wrongful act (meaning any actual or alleged error or misstatement, omission, act of neglect, or breach of duty) while performing official county duties. Within this scope, coverage is provided for employment-related liability including claims arising from termination, harassment, and discrimination. Unless you have an employment lawyer already on staff (or if the employment lawyer is the one getting the axe), that kind of reassurance can prove invaluable when human resources problems arise.
    Elected officials or employees of a county insured by the TAC RMP are covered while acting in their official capacity. That coverage expressly includes elected county attorneys. Moreover, this coverage extends to an assistant county attorney, assistant district attorney, or other employee of a county attorney’s or district attorney’s office for claims sounding in malicious prosecution (in addition to other potential official-capacity claims). Of potential interest to elected district attorneys and criminal district attorneys is the availability of optional coverage by endorsement for a district attorney when performing functions on behalf of the county. Malicious prosecution coverage is included, with the coverage becoming applicable if the Attorney General does not provide defense.
    Unlike some commercial insurers, TAC RMP does not deduct defense costs from a policy’s limit of liability. Also distinguishing TAC RMP from some other commercial carriers is the pool’s inclusion of cyber liability coverage, which is included within POL coverage.
    While larger counties may have adequate staff and sizeable human resources and risk management departments to assess and train on liability minimization, many smaller counties do not. To that end, coverage through TAC RMP makes available guidance services from an array of consultants with substantial county experience in risk management involving law enforcement, road and bridge work and human resources, among other areas of county endeavor. So even if you can’t provide training on lawsuit avoidance, TAC RMP staff members can. Even when misfortune does strike, the pool provides pre-claims assistance, upon written request, prior to the existence of a formal claim. When a formal claim arises, the pool’s claims staff is knowledgeable not only about liability issues, but also county governance and workflow, substantially flattening the learning curve about how things work within a given county while trying to resolve a claim.
    To learn more about TAC RMP coverage, you can contact the Risk Management Consultant for your region online. You can determine the region that includes your county or district by going to https://www.county.org/County-Risk-Management-Map.
    Whether you choose to pursue coverage through TAC RMP or some other insurer, the nature of prosecutorial work makes liability coverage something of an imperative unless you want to spend your time defending civil lawsuits instead of prosecuting crime. Just like wearing new socks at the airport, liability coverage will make you more comfortable and confident in getting to where you’re going.

Endnotes

1  Imbler v. Pachtman, 424 U.S. 409, 430-31 (1976); Charleston v. Pate, 194 S.W.3d 89, 90 (Tex. App.—Texarkana 2006, no pet.).

2   Tex. Loc. Gov’t Code §157.901(a).

3   Id. at (b).

4   Id. at (c).

5   Tex. Att’y Gen. Op. No. KP-0031 (2015), at 2.

6  See Tex. Att’y Gen. No. JM-1276 (1990) at 11-12 (district attorney is non-county official for purposes of §157.901); Tex. Att’y Gen. Op. No. MW-252 (1980), at 2 (under essentially identical predecessor statute, district attorney was not “county officer or employee” entitled to representation).

7   Tex. Gov’t Code §402.024(a).

8   Tex. Att’y Gen. Op. No. JC-0047 (1999), at 3.

9  Id.

10   See id. at 5 (concluding county has authority to defend district judge).

11  See id. at 3 (“the common-law rule is permissive — it does not require the political subdivision to provide counsel”).

12   Tex. Loc. Gov’t Code §157.043(b).

13   Id. at (a).

14   Id. at (b).

15   Tex. Gov’t Code §41.012.

16   Tex. Att’y Gen. Op. No. GA-0755 (2010), at 2.

17  Act of May 13, 2013, 83rd Leg., R.S., ch. 157, §1, 2013 Tex. Gen. Laws 595, 596 (codified at Tex. Code Crim. Proc. Art. 59.06(d-4)(8)).

18   Tex. Gov’t Code §41.012 (emphasis added).

19  Tex. Loc. Gov’t Code §262.022(5); see also id. §262.023(a) (requiring competitive purchasing procedures for purchase of items under contract entailing expenditure exceeding $50,000).

20  See Tex. Loc. Gov’t Code §262.011(p) (requiring judicially-appointed purchasing agent to complete at least 25 hours of training each two-year term).

21   See Tex. Loc. Gov’t Code §119.005(e) (authorizing pool board to purchase reinsurance).