Legal principles we should know
County Attorney employees, both lawyers and non-lawyers, should know about these legal principles that apply to various aspects of our Office. We do not intend for you to memorize these principles but we request that you be aware of them and to consult with experts in the Office should you encounter issues related to these matters.
1. The Harris County Attorney represents the state, Harris County, and Harris County Flood Control District in all civil matters. The Harris County Commissioners Court may not approve the creation of staff positions to be filled by attorneys to be appointed or employed by any county officer for the purpose of advising those officers on legal matters. A county attorney, on request, shall give to a county official a written opinion relating to the official duties of that official. The Harris County Attorney represents: the Department Of Family And Protective Services in cases involving abused or neglected children and the State of Texas in a suit to enjoin and abate a common nuisance under Chapter 125 of the civil Practice and Remedies Code. The County Attorney may bring an action in the name of the state, against a governmental body based on violation of the Public Information Act. The Harris County Attorney is authorized to investigate allegations of election fraud.
2. The Commissioners Court is the governing body of Harris County. It is comprised of four commissioners and the County Judge. Commissioners Court generally meets twice a month (Dates are at http://www.harriscountytx.gov/agenda/)
The Commissioners set the yearly budget for every department including the HCAO. Commissioners Court sets the number of people each department including elected officials may hire.
Most County business including all interlocal agreements (those made with other governmental entities) and expenditures must be approved by Commissioners Court.
The County Attorney may not settle a claim against the County unless Commissioners Court has authorized such settlement, either through a delegation of authority at the time the suit is filed or as a separate Commissioners Court action.
3. Counties do not have general ordinance making powers. Counties possesses only the powers and duties expressly conferred or necessarily implied. Unless there is a law that authorizes a county to take action with respect to a matter the county may not take such action. A home rule city such as the City of Houston derives its power not from the Legislature but from Article XI, Section 5 of the Texas Constitution. . In the absence of a state or federal law limiting its power, a city is authorized to pass any ordinance on any subject it deems appropriate. Proctor v. Andrews, 972 S.W.2d 729, 732 (Tex.1998)
4. A county is a governmental unit protected by the doctrine of sovereign immunity. A fundamental reason immunity exists is to prevent governmental entities from being bound by the policy decisions of their predecessors. The Texas Tort Claims Act waives sovereign immunity for a governmental entity for property damage, personal injury, and death caused by the wrongful act or omission or the negligence of an employee acting within his scope of employment in certain situations involving the operation or use of a motor-driven vehicle or motor-driven equipment or by a condition or use of tangible personal or real property. (Tex. Civ. Prac. & Rem. Code § 101.021).
The liability of the County under the Tort Claims Act is limited to money damages in a maximum amount of $100,000 for each person and $300,000 for each single occurrence for bodily injury or death and $100,000 for each single occurrence for injury to or destruction of property.
5. Section 1983 of the Civil Rights Act allows individuals to sue for violations of federally protected rights, like First Amendment rights and the Due Process Clause and the Equal Protection Clause of the Fourteenth Amendment. Section 1983 can be used to enforce rights based on the federal constitution and federal statutes, such as the prohibition of public sector employment discrimination. Qualified immunity is a doctrine in U.S. federal law that arises in cases brought against state officials under the civil rights statutes. Qualified immunity shields government officials from liability for the violation of an individual's federal constitutional rights. This grant of immunity is available to state or federal employees performing discretionary functions where their actions, even if later found to be unlawful, did not violate "clearly established law."
6. The HCAO enforces Texas environmental statutes, Texas Commission on Environmental Quality (TCEQ) rules and Harris County environmental regulations. The Office advises County Departments on compliance with environmental regulations, and assists in the development and implementation of the County’s stormwater quality program. Our Office reviews and submits comments on proposed state and federal environmental rules and proposed TCEQ air, water, and waste permits. When these permits fail to protect human health and the environment from proposed industrial or commercial operations, our Office may seek party status on behalf of the County and may request a contested case hearing before the TCEQ, where more stringent compliance measures are included in the permit or the denial of the permit is sought.
7. The Harris County Toll Road Authority (HCTRA) (pronounced HECK-truh) is a department of Harris County government. It is not a separate legal entity. Chapter 284 of the Texas Transportation Code authorizes Harris County to build, operate, and maintain toll roads. The Harris County Toll Road Authority improves mobility in the Greater Houston Metropolitan area through the operation of approximately 83 miles of toll roads including the Sam Houston Tollway and the Hardy Toll Road. Commissioners Court is given broad discretion in the expenditure of revenue from toll road operations.
8. The Harris County Flood Control District is a governmental entity separate and apart from Harris County. It is a special purpose district with boundaries identical to those of Harris County. The Harris County Commissioners Court is the governing body of the district. It is the only flood control district in Texas, created by the Texas Legislature in 1937 in response to devastating floods that struck the region in 1929 and 1935. The Harris County Attorney represents the Harris County Flood Control District.
9. The Harris Health System, previously the Harris County Hospital District (HCHD), is a governmental entity with taxing authority that owns and operates three hospitals and numerous clinics throughout Harris County. The Hospital District was created by voter referendum in 1965 under the authority of Article IX, Section 4 of the Texas Constitution and Chapter 281 of the Texas Health & Safety Code to furnish medical aid and hospital care to indigent and needy persons residing in the district. The District is governed by a nine member board of managers appointed by Commissioners Court. The budget is approved by the Board and then presented to Commissioners Court for final approval. The approval of the Commissioners Court is required for the sale, lease or operation of property and equipment.
10. The Texas Public Information Act requires governmental entities such as our Office to provide information to the public upon written request. Public information includes any information that is collected, assembled, or maintained by or for a governmental entity in connection with the transaction of official business. The Public Information Act applies to records regardless of their format and includes emails, handwritten notes, information that is maintained in paper, tape, microfilm, video, and electronic data held in a computer memory. Some documents such as those protected by attorney-client privilege are excepted from disclosure; however, the government must timely file a request with the Texas Attorney General to protect those documents from mandatory disclosure. Assistant County Attorney Kristen Lee is the public information officer for the County Attorney and all PIA requests received by this Office should be directed to her.
11. The Harris County Law Library is a public library that serves the legal information needs of self-represented litigants, legal professionals, the judiciary, and county and other governmental officials. Public access to legal information is a critical component of open and equal access to the justice system. The Harris County Law Library’s mission is to provide all of its patrons access to relevant, current, accurate, and practical legal information in the most appropriate and cost-effective formats possible and to provide educational opportunities designed to enhance patrons’ understanding of legal information and how it is accessed. By order of Commissioners Court it is a part of the Harris County Attorney’s Office and is funded by a fee accessed on all civil suits filed in the county and district courts of Harris County.
12. The Texas Disciplinary Rules of Professional Conduct apply to our conduct as lawyers and non-lawyers in the Office of the County Attorney. Some rules to note include:
Rule 1.01 b We may not neglect matters entrusted to us by our clients.
Rule 1.03 The client must be kept reasonably informed.
Rule 1.05 Client confidences must be maintained.
The responsibilities of government lawyers, under various legal provisions, including constitutional, statutory and common law, may include authority concerning legal matters that ordinarily reposes in the client in private client-lawyer relationships. For example, a lawyer for a government agency may have authority on behalf of the government to decide upon settlement or whether to appeal from an adverse judgment. Such authority in various respects is generally vested in the attorney general and the state's attorney in state government, and their federal counterparts, and the same may be true of other government law officers. Also, lawyers under the supervision of these officers may be authorized to represent several government agencies in intragovernmental legal controversies in circumstances where a private lawyer could not represent multiple private clients. They also may have authority to represent the “public interest” in circumstances where a private lawyer would not be authorized to do so. These rules do not abrogate any such authority. -- Texas Disciplinary Rules of Professional Conduct Preamble Paragraph 13.
13. Who is our client? We use the term “client representative” to remind us who the most important clients are in every matter handled by the Office of the County Attorney: the people who live and work in Harris County, Texas. We as public servants and government attorneys first and foremost must serve the public interest by representing all the people of Harris County. Government in a democratic society exists to represent the people for the benefit of the people. Harris County exists to serve the people. The Preamble to the Model Rules of Professional responsibility state that lawyers for government agencies may have authority to represent the ‘public interest’. Comment 9 to Rule 1.12 of the Texas Rules of Professional Conduct recognizes the unique obligations of the government attorney:
Moreover, in a matter involving the conduct of government officials, a government lawyer may question such conduct more extensively than that of a lawyer for a private organization in similar circumstances.
The United States Supreme Court in Berger v. United States, stated that the prosecution's interest “is not that it shall win a case, but that justice shall be done ....” Our duty to represent the public and pursue the public interest is also reflected in the oath that the County Attorney and every Assistant County Attorney takes upon assuming office: we will uphold and protect the constitution of the United States and the state of Texas. Of service to all according to law is a constant reminder to all of us who work in the Office of the County Attorney that we provide service not just to the elected officials, department heads, or the politically connected, but to all those who make up the public and we serve the public by following both the spirit and the letter of the law.