§ 104.007.Funds for Defense

A funding provision, and it is the practical constraint on the duty to defend.

Only funds appropriated from the General Revenue Fund to the attorney general may be used to conduct the defense of an action that the attorney general is required to defend under this chapter.

The restriction is on the source, and it is exclusive. The agency whose employee is being defended cannot fund the defence, and no other account may be drawn on.

That centralises both the obligation and the cost. The attorney general defends, and the attorney general’s appropriation pays — so the Legislature can see and control the total.

It also creates a real limit on a mandatory duty. The chapter says the attorney general shall defend, and this says only one appropriation may pay for it.

Subsection (b) defines what conducting a defence includes: investigating, taking depositions, making discovery, preparing for trial, preparing exhibits or other evidence, and participating in actual trial.

A definition of that kind in a funding provision is doing budgetary work. It establishes that the appropriation covers the whole of a defence rather than courtroom appearance alone.

The listed items are the expensive parts. Depositions, discovery and expert preparation account for most of what a defence costs, and naming them forecloses an argument that only trial work is fundable.

The list is inclusive rather than exhaustive, so activities not named are not thereby excluded.