Recently our past county attorney and assistant county attorney were sued in Federal Court for actions that are alleged to have occured while they were in office. The plaintiff is an "expert" who was indicted for, later dismissed, aggraveted perjury. Both were sued pursuant to ?1983, but in their individually capacity. County's insurer has denied coverage. Is the county obligated to defend? The denial is not based on current status of employment. The only way a ?1983 action is available is the claim that they were acting "under the color of law", i.e. in their official capacity. The case is set for mediation and the county has been providing a defense. Now the commis. court wants the individual defendants to pay for the mediation fee personally. Any suggestions. I believe that the county is obligated to defend but where is the authority?

Section 157.901 of the Texas Local Government Code is the key provision. Although it uses the word entitled there is still some debate within the AG opinions interpreting this section and its predecessor in the Revised Civil Statutes. If you cannot reprensent them outside counsel should be hired pursuant to the same section. Good Luck.

If they were sued for acting as prosecutors, the case probably shouldn't be going to mediation. It should be going to dismissal under Fed. R. Civ. P. 12(b)(6). Prosecutorial immunity is absolute. Even if there were investigative nuances to their actions, they still should be entitled to qualified immunity unless they really did manufacture evidence. In either case, the U.S. Supreme Court and the Fifth Circuit have made clear that the issue is subject to resolution before discovery or any of the other burdens of litigation ensue. As an aside, I would assume they were sued under some variant of a malicious prosecution claim. Universally, one of the elements of malicious prosecution is lack of probable cause. If a grand jury indicted, that's prima facie evidence of probable cause. Dismissal may occur later because the case can't be proven beyond a reaonable doubt, because witnesses have disappeared or flip-flopped or the prosecutor to whom the case is assigned would rather play golf than pursue a conviction. Whatever. None of that is a scintilla of evidence that probable cause was lacking. On the other hand, maybe they're sued under RICO. What do I know?

The AG opinions tend to agree that, in the first instance, the question of whether the former CA personnel were sued for performance of public duty, as contemplated by section 157.901, is one for the commissioners court to make. The express language of the statute requires the provision of a defense. It does not speak to the county's responsibility to advance items that might ultimately be included in the court costs. That issue has not been addressed by a court or the AG. Thus, the call is one for the commissioners court to make (subject to district court review for abuse of discretion -- the real issue being how well your commissioners court gets along with your district judge(s)). As Ray said, "good luck."

Keith: I think Scott is on point. I have had two cases this year where our DA's office has been sued in federal court. I have plead immunity and used this 5th circuit case which has gotten both actions thrown out at the trial level: MOWBRAY v. CAMERON COUNTY, 274 F.3d 269; 2001 which says: Under 42 U.S.C.S. � 1983, prosecutors are entitled to absolute immunity for acts performed as advocates of the state. For acts of investigation or administration, prosecutors are entitled to only qualified immunity. Absolute immunity extends to a prosecutor's actions preliminary to the initiation of a prosecution and apart from the courtroom. This includes a prosecutor's decision on which witnesses to call and what other evidence to present, and an out-of-court effort to control the presentation of a witness' testimony. GOOD LUCK!

In addition to the excellent advice furnished so far, may I suggest further review of the insurance company's determination of the lack of coverage as being an improper ground for a refusual to defend. Coverage is not the same as a duty to defend and the company may still owe a defense, regardless of whether the suit is ultimately covered. Many times the coverage issue is determined based on what is actually believed to be the correct allegations of fact or "esssence" of the case--this may well be true of coverage issues that are determined at the end of a case.

However, the duty to defend is very different. The duty to defend depends only on the eight corners rule- one uses the four corners of the insurance policy and four corners of the pleading, with both documents liberally construed in favor of a duty to defend. If any alleged fact or alleged cause of action (including claims that are completely without any arguable merit based on law or the facts) can possibly be construed to provide even an arguable bit of coverage and is NOT expressly and completely excluded by the express language of the policy, there is a duty to defend and pay all costs associated with the defense, regardless of whether there is ultimately coverage of the outcome or a valid cause of action. This duty to defend determination does not depend on whether there is any arguable basis for imposing liability or that the cause of action is recognized by the courts.

Also the issue of being sued in the individual capacity creates confusion on the part of insurers as well as others. Normally when one is sued individually for a tort, it is because the person is thought to NOT be within the course and scope of employment- a very key issue under most insurance policies and even under the Texas Statutes cited above.

This is not the situation in the "individual capacity" civil rights case as the key allegation to win a civil rights case is that the person was acting under color of law. Such an allegation is (especially for coverage and duty to defend purposes) the same as alleging the person to be acting as an employee/officer/agent within course and scope as distinguished from being on some purely personal mission or some purely personal vendatta not connected with their employment.

The confusion arises from the fact that merely acting within course and scope is not enough to impose liability on a government body and one must show that via an "official capacity" claim that there was a governmental policy and custom that resulted in the violation. Therefore, the official capacity allegation is often omitted due to an inability or unwillingness to pursue the more difficult claim and NOT because the defendant was ouside course and scope.

Unfortunately, the insurance company or the Commissioners may not recognize or understand that the individual capacity civil rights lawsuit still requires an asssumption that the person was somehow acting as an employee, therefore entitled to coverage or at a minimum, a defense.

One very important item is to carefully review all portions of all insurance policies, including those you do not think could provide coverage.
Check the errors and ommission policy of public officials or any law enforcement policies that you may or may not have. Often while it may not ulitimately pay damages assessed, it may well provide an arguable basis for a duty to defend one small portion of one of the claims, so as to require payment of all fees incurred, including those in the past.

I highly recommend you consult with an excellent coverage attorney and have them review the actual language of the correct version of the policies-- beware that insurance adjustors sometimes DONOT review the correct version of a particular policy.
And it is important to have someone highly experienced and specialized perform this review. The policies can be very difficult to read and undestand, even for specialists as demonstrated by the numerous and sometimes conflicting decisions over the meaning and effect of various terms of a policy.