§ 104.004.Defense by Attorney General

The defence obligation, and its third subsection addresses a genuine awkwardness.

The attorney general shall defend a public servant or estate listed in this chapter in a cause of action covered by it.

"Shall defend" is mandatory, and it distinguishes this chapter from the local government one, where a city may provide counsel.

The defence is provided by the state’s own lawyers rather than by insurance counsel, which is a considerable resource for an individual employee facing a civil rights suit.

The attorney general may settle or compromise the portion of a lawsuit that may result in state liability under this chapter.

The settlement authority is bounded by the state’s exposure, as it is in the local government chapter — what falls outside the caps or the covered conduct is not the attorney general’s to resolve.

Subsection (c) removes an objection that would otherwise be serious: it is not a conflict of interest for the attorney general to defend a person under this chapter and also to prosecute a legal action against that person as required or authorized by law, if different assistant attorneys general are assigned the responsibility for each action.

The situation is not hypothetical. The attorney general enforces state law against officials — in quo warranto, in removal actions, in enforcement proceedings — and may simultaneously be defending the same person in a civil suit.

The condition is a screen, and it is the whole of the protection. Different assistants on each matter, which is how large legal offices manage adverse representations.

Note that the provision resolves the statutory question, not the ethical one — the disciplinary rules apply to the lawyers on their own terms.