Nueces County court consults outside counsel, seeks state opinion on paying counsel for DA removal case

The Nueces County Commissioner's Court on March 8 debated whether the county must provide or should fund outside legal defense for District Attorney Mark Gonzales in a petition to remove him from office. The court first ratified limited, day'of retention of Branscum PLLC for legal advice and later moved into executive session to consult outside counsel about the county's obligations.

Commissioner Chesney pressed for the matter to be discussed in open session, saying the issue is "a public matter" and that "the public ought to hear it." Keith Cichgowsky of Branscum PLLC advised the court to hear the full legal scope in executive session first so commissioners understand the limits of their privilege and what could later be disclosed.

On returning to open session, Cichgowsky summarized his review of the relevant law and told the court he had been asked to evaluate Local Government Code section 157. He said prior Texas Attorney General opinions and court rulings have generally held that section 157'which entitles certain county officials and employees to county'provided counsel in civil suits'does not require counties to provide counsel to a district attorney in a removal action, because removal proceedings have been characterized as quasi'criminal. "The attorney general's office has been consistent for the last 13 years or so," he said, that a district attorney in a removal action is not treated as a county employee entitled to coverage under section 157.

Cichgowsky recommended that the county seek a formal opinion from the Texas Attorney General clarifying (1) whether a removal action is a civil suit under section 157 or instead a quasi'criminal proceeding for which section 157 would not apply, and (2) whether a district attorney qualifies as a county employee for purposes of that statute. He also said the court should analyze bond requirements associated with removal proceedings before determining any county expenditure, and noted the county has "common law authority" to expend funds only when it is in the county's best interest and not for an individual's private benefit.

The court did not direct immediate payment of outside counsel. Instead, commissioners voted to have outside counsel prepare a request for an Attorney General opinion and to review the bond obligations and options for the county. Several commissioners said they favored transparency, but supported counsel'led executive session first to identify legal constraints and potential disclosures.

The court also noted conflicts and recusals: at least two commissioners stated they would recuse themselves from parts of the discussion where they had conflicts. The county attorney will coordinate the AG opinion request and return with additional recommendations at a future meeting.