Abbott asked to opine on county's outside counsel

By Chris Rizo | Mar 19, 2010


DALLAS (Legal Newsline)-Texas Attorney General Greg Abbott has been asked to opine as to whether Dallas County Commissioners have the authority to hire outside lawyers to represent the county in certain civil cases, his office said Friday.

State Sen. Florence Shapiro, R-Plano, submitted the request to the attorney general's office for an official legal opinion.

In a March 8 letter to Abbott, the senator asked whether or not the Dallas County Commissioners Court can legally retain independent legal counsel to represent the county in matters where a conflict of interest exists for the county's district attorney or in cases when the district attorney has declined to act.

The question is whether §89.001 of the Texas Local Government Code grants the Dallas County district attorney exclusive authority to select outside lawyers to represent the county in civil matters.

The legal issue arose out of a probe the County Commissioners Court ordered in September 2008 to determine whether there were improper employment practices at two Dallas County constables' offices.

Hired by the commissioners were an investigator and an attorney to provide legal advice on the investigator's contract with the county.

The investigation into Precinct One and Precinct Five led to the Dallas County Grand Jury's subpoenaing of Dallas County Judge Jim Foster, the Commissioners Court administrator and the investigator, among others. Five civil lawsuits against the county also ensued.

In a white paper prepared by the Commissioners Court legal counsel -- Burt Barr & Associates LLP -- the Dallas law firm said Texas statute allows the body to hire outside counsel for civil cases filed against the county since it has a population of more than 1.25 million residents.

The paper said Texas law, moreover, doesn't give the district attorney exclusive representation of the county in civil matters, adding that the attorney general's office and the state Supreme Court have found that commissioners' hiring of outside counsel does not usurp the powers and duties of a district attorney or county attorney.

In a Feb. 23 letter to Abbott, Dallas County Auditor Virginia Porter did not convey the same interpretation. She noted that Texas Government Code §89.001 says the county attorney "shall select the special counsel" with the approval of commissioners, and in counties without a county attorney the district attorney is to make the selection.

As for at least some of the civil lawsuits against the county that stemmed from the commissioners' investigation, District Attorney Craig Watkins has mishandled matters, wrote Burt Barr & Associates's Patricia Kay Dube in a March 10 missive to the attorney general.

She said there is a conflict of interest between the offices of the Dallas County district attorney and his client the Dallas County Commissioners Court, the Dallas County Commissioners and Foster, the judge who was subpoenaed.

The conflicts of interest could violate the Texas Disciplinary Rules of Professional Conduct, Dube wrote.

"The failure of the Dallas County Criminal District Attorney to recognize legal conflicts of interest, protect client confidences, and the desire to have protected attorney-client communications inspired the Dallas County Commissioners Court to retain outside/independent lawyers," Dube wrote.

She added, "The Dallas County Commissioners and the Dallas County judge should be permitted to employ counsel of their choice."

Watkins, a Democrat, was elected district attorney in 2006.

From Legal Newsline: Reach staff reporter Chris Rizo at

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