FALFURRIAS, TEXAS – David T. Garcia, the county attorney for Brooks County, signed a contingency fee agreement with his employer to represent the county in an opioid lawsuit – a relationship that seemingly comes into conflict with the Texas Local Government Code.
Garcia’s first signature appears directly below County Judge Eric Ramos’ on page nine of the contract. Garcia’s title, county attorney for the County of Brooks County, is directly underneath his name.
On page 10 of the contract, Garcia signs again – this time with the words “Signature of Authorized Representatives of Co-Counsel” hanging above his name.
Garcia’s second signature appears right below the mark of Martin Phipps, a partner at Phipps Deacon Purnell who is also representing Bexar County in its opioid lawsuit.
The contract shows Garcia and Phipps’ firm, as co-counsel, will split the legal fees 50/50. The lawyers are entitled to 35 percent of the gross recovery.
If Brooks County prevails in the lawsuit, Garcia’s contingency fee could be prohibited by state law.
Under Section 154.004 of the Texas Local Government Code, the state and its counties are prohibited from paying fees or commissions to salaried officers.
“If a county officer is paid an annual salary, the state or any county may not pay a fee or commission to the officer for the performance of a service by the officer,” the statute states.
According to the Brooks County Treasurer’s Office, which handles payroll, Garcia is a salaried employee.
Garcia declined multiple requests for comment.
The contract was approved by the Texas Comptroller’s Office on May 9.
Attorneys soliciting local governments to pursue litigation has become a growing trend in Texas, so much so the that the Texas Legislature recently passed HB 2826 – a bill that seeks to make the process of local governments hiring private attorneys more transparent.
HB 2826 also moves contingency fee contract approval out of the hands of the Texas Comptroller’s Office and into to the lap of the attorney general.
The bill gives the attorney general the ability to reject a contingent fee agreement related to a matter that the state has already addressed or is pursuing and where litigation brought by the local government would not promote the just and efficient resolution of the matter.
Mark McCaig, a Houston attorney who testified in favor of HB 2826, has reviewed dozens of contingency fee contracts and believes the Brooks County one is unique to say the very least.
"I have read numerous contingent-fee legal contracts awarded by governmental entities across Texas, and the Brooks county contract is the first time I have ever seen an officer or employee of a governmental entity have a piece of one of these contracts,” McCaig said.
“At the very least, this arrangement raises eyebrows and further demonstrates why the reforms passed by the legislature in HB 2826 are necessary."