A late breakfast with a county commissioner

Just last week, I was preparing for a particularly vexing Sexual Assault  of  a  Child  case.  At  4
 o’clock one morning, my neighbor’s dog woke me up with its barking. Despite my annoyance at being awake so early, an idea for my closing argument popped into my head. Unable to sleep with the idea simmering, I got up and went to work so I could figure out the particulars of my closing.
    A couple hours into building my PowerPoint, my stomach rumbled and reminded me that, in my haste, I had forgotten to eat breakfast. It was after 8 already, but because I had been at the office for a while already, I figured that I deserved my favorite drive-through guilty pleasure.
    Twenty minutes later, I returned to the courthouse with breakfast-on-a-bun in hand. As I strode across the parking lot, I heard, “Good morning, Mr. Wavrusa,” from behind me. Whom did I have the good fortune of running into as I arrived an hour “late” for work? Only one of our wonderfully hard-working and budget-conscious county commissioners, of course.
    Before I could deliver the explanation for my apparent tardiness, the commissioner launched into a problem he was having with a stretch of county road in his precinct. He ended with a question about the procedure for permanently closing a county road, and I gave him my promise to get him an answer as soon as I could.
       As an attorney in a rural prosecutor’s office, I am now used to interactions with our county commissioners, so I took this exchange (which forced me to shift gears from my Sexual Assault of a Child case to a question on closing a county road) all in stride. However, for new attorneys and those making the transition from a large to a small office, this kind of request could create some uneasiness, especially if the focus of your practice has been entirely criminal. So in the spirit of offering advice, I hope to provide some important considerations before you decide to advise or undertake representation of your county’s commissioners court.

How must I help?
If you are employed in any capacity by a prosecutor’s office in Texas, you should be familiar with the job description. Article V, §21 of the Texas Constitution provides that:
“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. … The County Attorneys shall represent the State in 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.”
    In addition, the Texas Code of Criminal Procedure articulates, “It shall be the primary duty of all prosecuting attorneys, including any special prosecutors, not to convict, but to see that justice is done. They shall not suppress facts or secrete witnesses capable of establishing the innocence of the accused.”1
    What you might not realize is that the obligation to see that justice is done is only part of our duties. Article 2.01 of the Code of Criminal Procedure is more directly aimed at district attorneys and requires them to represent the State in all criminal cases in district courts as well as examining trials, appeals, and writs of habeas corpus.
    Article 2.02 discusses the duties of county attorneys. They are obligated to attend the terms of court in their counties below the grade of district court and shall represent the State in all criminal cases under examination or prosecution in said county; and in the absence of the district attorney the county attorney shall represent the State alone and, when requested, shall aid the district attorney in the prosecution of any case on behalf of the State in the district court. He shall also represent the State in cases he has prosecuted which are appealed.
    These three provisions are the most well-known in describing the duties and responsibilities of county and district attorney offices. Based on them, you might guess that county and district attorneys do not represent the county or state in civil matters, and you would be right for the most part. Generally, there is no obligation to provide representation in the civil matters of the county or state, but there are instances where statute expressly requires a county or district attorney’s office to engage in civil representation.
    To determine the civil duties of your office, first consult the statute in the Government Code that creates your office or that is specifically applicable to it. There are three types of prosecutors’ offices in Texas: 1) county attorneys, 2) district attorneys, and 3) criminal district attorneys.2
    The Legislature lays out General Provisions and Provisions Applicable to Specific Districts in Chapter 43 (District Attorneys), Chapter 44 (Criminal District Attorneys), and Chapter 45 (County Attorneys). The General Provisions for each chapter are outlined in Subchapter A; provisions applicable to specific districts are found in Subchapter B.
    Subchapter A just isn’t that interesting. Its provisions vary depending on the type of prosecutor’s office, but generally, Subchapter A covers topics like Bonds, Failure to Attend Court, and Expenses.
    Subchapter B of each chapter is where you’ll find the meat and potatoes of each office’s authority. When a county official approaches a county prosecutor with a civil issue, it is critical that you consult the provision in relevant Subchapter B that specifically applies to your office. Chances are that you are simply obligated to prosecute criminal matters in a particular set of courts, but you may find the odd provision about your county’s ability to accept grants3 or the even odder provision allowing your office’s investigator to be someone other than a licensed attorney.4
    But it could well be that your county or district has specific civil obligations placed on it.5 For example, the Fort Bend County Attorney’s Office is obligated to represent the Fort Bend County Drainage District and any other county entity created by law.6 The Grimes County Attorney shall represent the State, Grimes County, and the officials of the county in all civil matters pending before the courts of Grimes County and any other court.7 Conversely, the Grimes County Attorney, per statute, has no power, duty, or privilege in Grimes County relating to criminal matters, including asset forfeitures under Chapter 59, Code of Criminal Procedure, appearance bond forfeitures under Chapter 17, Code of Criminal Procedure, or habeas corpus related to criminal matters.8
    If, in your review of the relevant portion of Subchapter B, you discover that you have an obligation to whatever entity is requesting your help, you don’t have much of an option. However, many offices will see that they have no duty to undertake representation.
    But even if you do not have an obligation to the entity, you are not necessarily barred from helping out. Chapters 43, 44, and 45 are not the only areas of the Government Code that place civil obligations on the county or district attorney’s offices. Other responsibilities are scattered throughout the Government Code, and if you don’t know where to find them, it would be easy to overlook them.
    For instance, 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.9 “County or precinct official” is a pretty broad term that applies to more than just elected officials.10 If a county or precinct official requests an opinion from the county or district attorney, that official is not bound by that opinion.11 (Nothing like someone asking for your opinion then completely disregarding it, right?)

How may I help?
When you work in a rural county, you will inevitably come to know the local officials regardless of your high or low position in the office. In many ways knowing most everybody can work to your benefit. In other ways it does not. One such way is that a personal relationship with these county officials often leads to their being comfortable enough with you to just drop in and ask questions about their official duties.
    The county commissioners court will be the likely source of most civil legal questions you receive. It is the largest source of executive power in the county, and it will be the final decision-maker in all of the county’s business. This role leads to lots of questions from a group that is not normally composed of individuals with a legal education.
    The power of the county commissioners court comes from Article V, §18(b) of the Texas Constitution, which provides that the county be divided into four commissioners precincts and that each shall elect one county commissioner. The county judge presides over the commissioners court.
    The Texas Supreme Court has construed Article V, §18 to mean “that although a commissioners court may exercise broad discretion in conducting county business, the legal basis for any action taken must be grounded ultimately in the constitution or statutes.”12 However, the Guynes court noted, “As the administrative head of county government, a commissioners court also possesses broad implied powers to accomplish its legitimate directives.”13 These powers include the authority to contract with experts when necessary, including attorneys,14 because the commissioners court has the implied power to control litigation and choose its legal remedies.15
    The commissioners court’s power to contract with attorneys means that the ability of a prosecutor’s office to represent a county entity in civil matters can be contracted away as long as the legislature has not specifically obligated the office to undertake representation. Counties have taken different approaches in contracting civil work away from the local prosecutor’s office. Some commissioners courts will create a team of “in-house” attorneys, who are not members of the local prosecutor’s office, to advise them in civil matters. In In re Cascos, for example, the Cameron County Commissioners Court transferred the Cameron County Civil Legal Division out of the County Attorney’s Office. A suit was brought by the County Attorney’s Office to prevent this action, and the appellate court held that because Texas Government Code §45.131 did not grant the Cameron County Attorney’s Office authority to represent the county in civil matters, it was within the commissioners court’s powers to move civil representation out of the County Attorney’s Office.16
    The ability of the commissioners court to contract away civil representation does come with one significant limitation. The commissioners court of a county with a population of more than 1.25 million may employ an attorney as special counsel. The special counsel may be employed to represent the county in any suit brought by or against the county; prepare necessary documents and otherwise assist the court, the county engineer, and other county employees in the acquisition of rights-of-way for the county and for state highways; or represent the county in condemnation proceedings for the acquisition of rights-of-way for highways and other purposes for which the county has the right of eminent domain. The county attorney17 is obligated to select this special counsel.  The county attorney determines the terms and duration of the special counsel’s employment subject to approval by the commissioners court.18   
    The more common approach is to retain independent counsel in civil disputes on the recommendation of the county insurance provider. A good example is the Texas Association of Counties (TAC). TAC has a risk management pool to help protect against a variety of liabilities including workers compensation, workplace discrimination, harassment, retaliation, wrongful termination, and claims under the Americans with Disabilities Act.19 For the many counties that participate in this risk management pool, TAC provides a list of local attorneys who are approved to represent counties in civil matters. If your county participates in such a program, you have two options. The first is to simply decline to answer the commissioner’s question and recommend he consult with the commissioners court’s insurance provider. The second is to answer the question with the caveat that he should consult with the insurance provider, as the provider will bear the responsibility of representing the official and/or county in court should litigation result.

What are expectations?
The obligations of each county and district attorney’s office to represent local officials vary a bit from one jurisdiction to the next—but the differences in responsibilities don’t hold a candle to the differences in personalities and expectations. For that reason, there is no one-size-fits-all strategy that I can offer for dealing with local commissioners and elected officials. What I can give you, though, are some considerations for each time you decide to offer advice.
    Time. I have yet to meet a county or district attorney who is a bona-fide expert in everything from deceptive trade practices, to wills and probate, to the administration of county roads. Yet county and precinct officials will ask questions on all of these subjects and more. I would expect that at least a little bit of research will be required for almost every question you are asked, which is why it is important to establish a timeline for the expected response early on.20 You don’t want a county commissioner to expect an answer in a day when you don’t plan on researching it for a week. That type of miscommunication won’t be remembered kindly during the county budget discussions.21
    Detail of response. Sometimes the county or precinct official is simply looking for a yes or no answer to the question, “Can I do this?” Other times, he is looking for a more detailed response that discusses the ramifications of one course of action versus another. Find out what is expected when the official poses the question.
    Form of response. I would be absolutely fine if voicemail had never been invented—I would rather respond to 10 emails than two voicemail messages. Unfortunately, technology is not the strong suit for most officials in my county. Chances are that at least a few of your local authorities are the same way, so be sure to ask them how they would like to hear back from you on their questions.
    Follow-up. This is just a customer service tip more than anything else. All people, county officials especially, want to feel important. Following up with the local official within a couple of days will go a long way toward building a good rapport. If you are supplying the answer to a governmental body that will be making a decision with the information, offer to prepare a presentation for the meeting or be available via phone or email to the other members in case there are additional questions.
    
Conclusion
Working in a rural county is a lot like running a small business. You quickly get to know everyone who works there, from top to bottom, and what their responsibilities are. Most attorneys in county and district attorney offices will be seen simply as prosecutors, but there will be times when a county official has a legal question. In that moment, you won’t be thought of as “the prosecutor”—you will be thought of as “my attorney.” When that moment arises, it will be important to know what you as a prosecutor can do, what you must do, and what you shouldn’t do for that county official. You will be doing yourself a huge favor by having an understanding of these rules and, if you’re lucky, you won’t have to explain why you didn’t bring enough breakfast for everybody.

Endnotes

1 Tex. Code Crim. Proc. Art. 2.01.
2 There are a handful of County Attorney’s Offices with felony jurisdiction, which is the constitutional default in the absence of a statute creating an overlapping district attorney for that county. We often refer to them as “County & District Attorney’s Offices,” and not all of them have an enabling statute in the Government Code.
3 For example, Tex. Gov’t Code §43.115 allows the county commissioners for the 29th Judicial District to accept gifts and grants from any political subdivision to finance adequate and effective prosecution programs within the county or district.
4 For example, Tex. Gov’t Code §43.105 specifically allows the 9th Judicial District to hire an investigator who is not a licensed attorney.
5 County Attorneys in Fort Bend, Grimes, Harris, Lee, Matagorda, Montgomery, Oldham, Swisher, and Wharton Counties are empowered with the exclusive right to represent their respective commissioners courts in civil matters or in all county matters. See Tex. Gov’t Code §§45.179, .193, .201, .244, .261, .270, .280, .319, and .341.
6 Tex. Gov’t Code §45.179.
7 Id. at §45.193.
8 Id.
9 Tex. Gov’t Code §41.007.
10 For example, members of the Harris County Sheriff’s Department Civil Service Commission in regards to their official duties. Each member of the commission is a “public official” of Harris County. Tex. Op. Att’y Gen. JM-0633 (1987).
11 A county auditor is not bound by the advice or opinion of the county attorney regarding the lawfulness of a claim, bill, or account against a county.  Tex. Op. Att’y Gen. GA-0604 (2008).
12 Guynes v. Galveston County, 861 S.W.2d 861, 863 (Tex. 1993) (citing Canales v. Laughlin, 147 Tex. 169, 214 S.W.2d 451, 453 (1948); Renfro v. Shropshire, 566 S.W.2d 688, 690 (Tex. Civ. App.—Eastland 1978, writ ref’d n.r.e)).
13 Id. (citing Pritchard & Abbott v. McKenna, 162 Tex. 617, 350 S.W.2d 333, 334 (1961); Anderson v. Wood, 137 Tex. 201, 152 S.W.2d 1084, 1085 (1941); Galveston County v. Gresham, 220 S.W.560, 562 (Tex. Civ. App.—Galveston 1920, writ ref’d)).
14 Id. (citing McKenna, 350 S.W.2d at 334; McClintock & Robertson v. Cottle County, 127 S.W.2d 319, 321 (Tex. Civ. App.—Amarillo 1939, writ dism’d judgm’t cor.)).
15 Looscan v. Harris County, 58 Tex. 511, 514 (1883).
16 Cascos v. Cameron County Atty. (In re Cascos), 319 S.W.3d 205, 2010 Tex. App. LEXIS 5543 (Tex. App. Corpus Christi 2010). In Cascos, the appellate court found it irrelevant that the commissioners court had acquiesced to the county attorney handling the county’s civil work load for more than 100 years. The appellate court also held that the mandatory duty of the county attorney’s office to provide written advice to county officials only if asked or requested by a county official, under Tex. Gov’t Code §41.007, did not require the commissioners court to seek advice solely from the county attorney’s office.
17 Or the district attorney or criminal district attorney if there is no county attorney.
18  See Local Govt Code §89.001.
19 TAC’s website also boasts that it protects members of the risk management pool against “alleged malicious prosecution by county prosecutors.” That was infuriating to see.
20 Timing is also especially important if the information a prosecutor provides is critical to the meeting of a governmental body. The Texas Open Meetings Act places strict requirements on the form and substance of notices of open meetings. Providing your response in a timely manner will help the elected official stay in compliance with this important legislation.
21 Helpful hint: I have a canned answer that I give to officials when they inevitably ask me about a topic that I’m unfamiliar with: “You know, I don’t know the perfect answer to that question off of the top of my head, but if you will give me some time, I’ll make myself an expert in that area of the law.”