HB 516 was filed on January 10 to add Sec. 89.0011 to the Local Gov't Code to allow a commissioners court to employ special counsel to (1) advise on contracts and on open meetings and records issues; (2) to counsel elected officers of the county on their official duties; and (3) "other legal representation and counsel as the county may require." The only caveat is that such counsel "may not perform any function expressly granted by law to another person." What in the heck is this all about?

Someone's mad at their local CA or DA, it would appear. Probably someone from my county. But, returning to the issue at hand, this gem of drafting shows some sign of hasty composition, doesn't it? For instance, it authorizes this new "special counsel" to advise county elected officials about their official duties, but conspicuously says that the "special counsel" can't perform any function that is expressly granted by law to another person. Like advising county officials about their official duties, a-la Gov't Code sec. 41.007. The real question in my mind is, why is this necessary? The Supreme Court in Guynes v. Galveston County confirmed that it long has been and continues to be the law that a commissioners court has authority to retain counsel of its choosing for the county, so long as the DA's or CA's constitutional and statutory duties are not thereby usurped. This statute wouldn't change that landscape, so what's the burning need to codify such well-established law?

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The Supreme Court in Guynes v. Galveston County confirmed that it long has been and continues to be the law that a commissioners court has authority to retain counsel of its choosing for the county, so long as the DA's or CA's constitutional and statutory duties are not thereby usurped. This statute wouldn't change that landscape, so what's the burning need to codify such well-established law?

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Scott, I think HB 516 goes further than Guynes. In dicta, the Guynes court noted that the DA consented to the arrangement with the commissioners court, but didn't comment any further on it. Without so stating, its the gentlist of implications that getting consent from the DA or CA is important. HB 516 seems to make the DA's or CA's consent unimportant.

Aside from the built-in conflicts (for instance, LGC sec. 89.001, applicable to counties of more than 1.25 million, says the CA or DA will pick "special counsel," which appears to be similar in many respects to the authorization under this bill; then there's the Gov't Code sec. 41.007 issue), the bill seems intended to ensure that, if the local CA/DA gets crosswise with the commissioners court, he/she is out of the civil business (other than CPS, DADS, mentals and the occasional 157.901 defense) until he/she makes nice. For some, that may not be a bad thing. But it could wind up costing the county more money. I know that we have been challenged under Tex. R. Civ. P. 12 (unmeritoriously) in an effort to eliminate the lawyer who isn't billing hourly, start the meter running and thereby leverage a settlement despite the county's solid jurisdictional defenses. I guess we'll see what happens.

I know I shouldn't read forums, but...

This thread has me thinking about this. Other thoughts.

The part of HB 516 that may be problematic is the last sentence in (b), which says that "[t]he special counsel may not perform any function expressly granted by law to another person."

With that in mind, the Govt Code gives many Criminal DAs the powers and duties "conferred by law on county and district attorneys in the various counties." So what is "various counties"? In chapter 45 of the Government Code it appears that the vast majority of county attorneys must represent the county and its officials in "civil matters."

In my opinion, those county attorneys with that language of authority, and those Criminal DAs with that "various counties" language of authority may assert that the new statute does not apply to them as the more specific statute (their own) says otherwise.

Interestingly, the legislature has specifically authorized a commissioners court to hire outside counsel in certain counties. Here are some examples:

- The Denton County CDA has the "various counties" language except the commissioners court is specifically authorized to retain other legal counsel in a civil matter as it considers appropriate." Tex. Govt Code 44.161(c).

- The same is true of Calhoun County . Tex. Govt Code 44.129(b).

- The Tarrant County CDA has the "various counties" language, except in a condemnation case in which the commissioners court hires special counsel to represent the county. Tex. Govt Code 44.320(b) and (d). The statute says that the Tarrant County commissioners court may retain "special counsel of its own choice, learned in the law" for eminent domain proceedings.

- The Walker County CDA's office is statutorily not required to represent the county in either tax or condemnation matters, and the commissioners court is specifically authorized to retain other legal counsel at any time. Tex. Govt Code 44.336(c).

Given the above, HB 516 may muddle rather than clarify. It could invite litigation in counties where the Criminal DA or the CA has expansive language regarding its civil duties.

[This message was edited by Grant Brenna on 02-21-07 at .]

one of my favorite points from the hearings on this bill was first from the Bexar County representative (and later echoed by the Walker County representative) who argued quite succinctly, we're not trying to go around the AG on the state level, why are we trying to do it at the local level? i just loved that.

[This message was edited by David Newell on 02-21-07 at .]

Anyone else wishing to view the lively debate at the hearing can access it here:

HB 516 in House County Affairs

(the bill is taken up around the 1:15:00 mark, if you want to skip forward to that)