The Attorney General of Texas
April 29, 1983
JIM MATTOX
Attorney General
Honorable Lloyd Doggett opinion No. JM-28
Supreme Court Building
Chairman
P. 0. BOX 12548
Austin, TX. 78711. 2548
Jurisprudence, Human Resources, and Re: Representation of office
5121475-2501 State Affairs Committees of Public Utility Counsel in
Telex 9101874-1367 P. 0. Box 12068 court
Telecopier 5121475-0266 Austin, Texas 78711
1807 Main St.. Suite 1400
Dear Senator Doggett:
Dallas, TX. 75201-4709
2141742-8944 You have requested our opinion on the following questions:
1. In consideration of article IV, section 22,
4624 Alberta Ave.. Suite 160
El Paso. TX. 79905-2793 and article V, section 21, of the Texas
9151533-3484 constitution, may the legislature grant to the
public utility counsel, as structured in Senate
Bill No. 577, Senate Bill No. 5, or House Bill No.
20 Dallas AYB.. suite 202
douston. TX. 77002.6986
887, the right to represent his office in a
7131650-0666
judicial proceeding?
2. Does Hill V. Texas Water Quality Board, 568
606 Broadway. Suite 312 S.W.2d 738 (Tex. Civ. App. - Austin 1978, writ
Lubbock, TX. 79401.3479
ref'd n.r.e.), Hill V,- Lower Colorado River
8061747.5238 ;
Authority, 568 S.W.2d 473 (Tex. Civ. App. - Austin
1978, writ ref'd n.r.e.), or article IV, section
4309 N. Tenth. Suite 8 22, of the Texas Constitution prohibit the
McAllen. TX. 78501-1685 Attorney General from representing the Office of
5121682-4547
Public Utility Counsel, as structured in Senate
Bill No. 577, Senate Bill No. 5, or House Bill No.
200 Main Plaza, Suite 400 887, on appeal to a judicial body?
San Antonio, TX. 78205.2797
5121225.4191 We believe Attorney General Opinion MW-24 (1979) is dispositive
of your first question. This opinion considered the constitutionality
An Equal Opportunity/ of legislation authorizing staff attorneys of the Department of Human
Affirmative Action Employer Resources to represent that department in litigation over child
support. The opinion noted that a constitutional question had arisen
in light of article IV, section 22. and article V, section 21, of the
Texas'Constitution. These provisions read as follows:
The Attorney General. . . shall represent the
State in all suits and pleas in the Supreme Court
of the State in which the State may be a party,
p. 118
Honorable Lloyd Doggett - Page 2 (JM-28)
and shall especially inquire into the charter
rights of all private corporations, and from time
to time, in the name of the State, take such
action in the courts as may be proper and
necessary to prevent any private corporation from
exercising any power or demanding or collecting
any species of taxes, tolls, freight or wharfage
not authorized by law. He shall, whenever
sufficient cause exists, seek a judicial
forfeiture of such charters, unless otherwise
expressly directed by law, and give legal advice
in writing to the Governor and other executive
officers, when requested by them, and perform such
other duties as may be required by law. He shall
reside at the seat of government during his
continuance in office. He shall receive for his
services an annual salary in an amount to be fixed
by the Legislature.
Tex. Const. art. IV, §22.
The County Attorneys shall represent the State in
all cases in the District and inferior courts in
their respective counties; but if any county shall
be included in a district in which there shall be
a District Attorney, the respective duties of
District Attorneys and County Attorneys shall in
such counties be regulated by the
Legislature. . . .
Tex. Const. art. V, §21. The opinion went on to state:
The conclusion drawn from a long history [of] case
law indicates that the above officials alone have
the constitutional authority to represent the
state. Hill v. Texas Water Quality Board, 568
S.W.2d 738 (Tex. Civ. APP. - Austin 1978. writ
ref'd n.r.e.); Brady V. B;boks, 89 S.W. 105i (Tex.
1905); Agey v. American Liberty Pipeline Co., 172
S.W.2d 972 (Tex. 1943); Adamson v. Connally, 112
S.W.2d 287 (Tex. Civ. App. - Eastland 1937, no
writ) ; Allen v. Fisher, 9 S.W.Zd 731 (Tex. 1928);
Hancock V. Ennis, 195 S.W.2d 151 (Tex. Civ. App. -
San Antonio 1946, writ ref'd n.r.e.); Attorney
General Opinion M-856 (1971). However, this
construction of the constitution does not require
the Attorney General, district or county attorney,
or authorized assistants, always to sign court
p. 119
,
Honorable Lloyd Doggett - Page 3 (JM-28)
papers as attorney of record and actually litigate
the suit in court.
The constitution gives the Attorney General
authority to represent the department. He cannot
constitutionally be deprived of his authority to
control the litigation. See State v. Moore, 57
Tex. 307 (1882). So long zthe Attorney General
has continuing authority to intervene and control
the lawsuit, the proposed legislation is
constitutional. Maud v. Terrell, 200 S.W. 375
(Tex. 1918); Charles Scribner's Sons V. Marrs, 262
S.W. 722 (Tex. 1924); General Appropriations Act,
Acts 1977, 65th Leg., ch. 872 at 2777.
Representation by the department's staff attorneys
would be construed to be with the implicit consent
of the Attorney General. See V.T.C.S. art. 695c,
5818-B(b)(3), (e); General Appropriations Act,
Acts 1977, 65th Leg., ch. 872, art. V, 941, at
3160 (court representative of the state) and §42,
at 3161 (permitting outside counsel); Taylor V.
Texas Department of Public Welfare, 549 S.W.2d 422
(Tex. Civ. App. - Fort Worth 1977, writ ref'd
n.r.e.) (untimely objection that representation by
department attorney violated article V. section
21); Postell V. Texas Department of Public
Welfare, 549 S.W.2d 425 (Tex. Civ. App. - Fort
Worth 1977, writ ref'd n.r.e.); cf. Collins v.
g, 506 S.W.2d 293 (Tex. Civ. App. - San
Antonio 1973, no writ); Attorney General Opinion
M-249 (1968).
It concluded that the constitutional authority of the attorney
general to represent the state could not validly be diminished by the
proposed legislation. The staff attorneys of the Department of Human
Resources could constitutionally represent the department in court
subject to supervisory control of the attorney general. See also
Attorney General Opinions MW-340 (1981); NW-191 (1980); H-1284 (1978);
H-268 (1974); and M-866 (1971).
We believe the provisions of Senate Bill No. 577 authorizing the
public utility counsel to represent his office in court are not
constitutional unless the attorney general certifies his inability to
represent the counsel and permits the public counsel to appear in
court subject to the attorney general's supervision.
To the extent that House Bill No. 887 contemplates court
representation by the public utility counsel, such provisions are
constitutional only if construed so that his representation is subject
p. 120
Honorable Lloyd Doggett - Page 4 (JM-28)
to the attorney general’s supervisory control. Senate Bill No. 5
places the counsel under the attorney general; thus, the
constitutional problem raised by your question is not present in
Senate Bill No. 5.
You also ask whether the attorney general is prohibited from
representing the office of the public utility counsel in court where
the Public Utility Commission, also represented by the attorney
general, is an adverse party. We have been unable to find a
constitutional provision which would prevent the attorney general from
representing opposing parties in a lawsuit. The attorney general has
a duty under article IV, section 22, to represent the state in the
supreme court. Where two state agencies are on opposite sides of a
lawsuit, the attorney general is required to represent both agencies.
In at least one case, the attorney general and three assistant
attorneys general were counsel of record for one agency, while another
assistant attorney general was counsel of record for the opposing
party. Texas National Guard Armory Board V. McGraw, 126 S.W.2d 627
(Tex. 1939). In recent years, it has been the practice for one of two
state agencies in litigation to be represented by outside counsel,
while the other is represented by the attorney general. Riders to the
general appropriations act have regulated this practice for several
years. The riders which appear in the current appropriations act read
in pertinent part:
Sec. 40. COURT REPRESENTATION OF THE STATE.
Except as otherwise provided by the Constitution
or general or special statutes, the Attorney
General shall have the primary duty of
representing the State of Texas in the trial of
civil cases, and none of the funds appropriated in
this Act may be expended by any agency of the
State Government to initiate a law suit or defend
itself against any legal action unless such agency
is represented in that particular action by the
Attorney General or a member of his staff. . . .
Sec. 41. OUTSIDE LEGAL COUNSEL. Prior to
expenditure of funds for retaining outside legal
counsel, agencies and departments covered by this
Act shall request the Attorney General to perform
such services. If the Attorney General cannot
provide such services, he shall so certify to the
requesting agency who w then utilize
appropriated funds to retain outside counsel.
General Appropriations Act, Acts 1981, ch. 875, art. V, §§40, 41, at
3815.
p. 123
Honorable Lloyd Doggett - Page 5 (JM-28)
Article V, section 41, as it appeared in the Appropriations Act
for fiscal 1974 to 1975, was discussed in Attorney General Opinion
H-268 (1974). The opinion determined that the rider did not modify or
amend general law. Insofar as it impliedly recognized authority in
the attorney general to represent the state in court, it was merely
declaratory of existing law. Although the rider authorized state
agencies to employ outside counsel when the attorney general certified
that he could not perform the needed services, it did not displace the
constitutional authority of the attorney general under article IV,
section 22, to represent the state in court.
Thus, although a state agency may be represented in court by
outside counsel rather than by the office of the attorney general, the
attorney general has the legal authority to represent that agency, and
the outside counsel appears only with his consent. See Attorney
General Opinions MW-24 (1979); H-268 (1974).
You specifically ask whether Hill v. Texas Water Quality Board,
568 S.W.2d 738 (Tex. Civ. App. - Austin 1978, writ ref'd n.r.e.) or
Hill v. Lower Colorado River Authority, 568 S.W.2d 473 (Tex. Civ. App.
- Austin 1978, writ ref'd n.r.e.), prohibit the attorney general from
representing the office of the public utility counsel on appeal to a
judicial body.
Language appearing in Hill v. Texas Water Quality Board, 568
S.W.2d 738 (Tex. Civ. App. - Austin 1978, writ ref'd n.r.e.), suggests
that the attorney general cannot represent both sides in the lawsuit.
The attorney general sued the Water Quality Board seeking to set aside
orders regulating water pollution as unreasonable and arbitrary, and
constituting a denial of equal protection. The court denied him
standing on the ground that the constitution and statutes gave him the
exclusive right to represent state agencies and therefore precluded
him from suing the Water Quality Board. The court cited Maud v.
Terrell, 200 S.W. 375 (Tex. 1918) on the exclusive right of the
attorney general and district and county attorneys to represent the
state and stated as follows:
Thus, either the Attorney General or a county
or district attorney may represent the State in a
particular situation, but these are the only
choices, whichever official represents the State
exercises exclusive authority and if services of
other lawyers are utilized, they must be 'in
subordination' to his authority. To uphold the
Attorney General's position would give rise to an
intolerable situation which, as was aptly observed
by the trial court, would put him on both sides of
the lawsuit.
p. 122
Honorable Lloyd Doggett - Page 6 (JM-28)
568 S.W.2d at 741. The court did not consider cases in which the
constitution and statutes placed the attorney general on opposite
sides in a lawsuit. The court also did not identify a constitutional
or statutory provision which prohibited the attorney general from
representing both sides in a lawsuit. The quoted statement is dicta,
because it is unnecessary to the decision. The attorney general had
no statutory or constitutional authority to represent any entity which
"as in conflict with the Water Quality Board. He was instead relying
on common law powers which the court concluded he did not possess.
Hill V. Texas Water Quality Board does not, however, stand for the
proposition that the legislature may not enact a statute authorizing
the attorney general to sue a state agency.
In Hill V. Lower Colorado River Authority, 568 S.W.2d 473 (Tex.
Civ. App. - Austin 1978, writ ref'd n.r.e.), the attorney general
sought judicial review of the action of the Texas Water Rights
Commission in granting a permit to Houston Lighting and Power Company,
based on a contract between Houston Lighting and the Lower Colorado
River Authority. The court held that the attorney general had no
authority to bring such a suit. It discussed arguments relating to
the common law powers of the attorney general and concluded as
follo"s:
We find in reviewing the cases decided by the
courts of Texas a consistent adherence to the
principle that the attorney general derives his
power and authority in office from the
Constitution and the laws of the State duly
enacted by the Legislature. It is further
apparent that the duties and powers of the
attorney general as expressed in the Constitution
and in the statutes consistently ally the attorney
general with the State as its counsel and advocate
in its behalf, and nowhere do these grants of
power arm the attorney general with authority to
sue the State or any of its arms or agencies, even
when the attorney general holds a view different
from the decision or discretion exercised by an
administrative agency.
568 S.W.2d at 480. The court did not consider any situation where the
legislature had enacted a statute authorizing the attorney general to
sue the state or one of its agencies.
The opinion does not hold that the constitution forbids the
legislature from enacting a statute that places the attorney general
on both sides of a lawsuit. The legislature has in fact done so in at
least three instances. The Texas Open Records Act, article 6252-17a,
V.T.C.S., provides in section 8:
p. 123
-_
Honorable Lloyd Doggett - Page 7 (JM-28)
if a governmental body refuses to request an
attorney general's decision as provided in this
Act, or to SUPPlY public information of
information which the attorney general has
determined to be a public record, the person
requesting the information or the attorney general
may seek a writ of mandamus compelling the
governmental body to make the information
available for public inspection.
This provision authorizes the attorney general to sue governmental
bodies, defined elsewhere in the Open Records Act to include agencies
within the executive branch of the state government. V.T.C.S. art.
6252-17a, §2(1)(A).
Article 6252-26, V.T.C.S., authorizes the attorney general to
defend officers and employees of the state against certain kinds of
lawsuits arising out of acts or omissions by that person in the scope
of his office or employment. Section 3(a) of article 6252-26 provides
in part:
It is not a conflict of interest for the attorney
general to defend a person or estate under this
Act and also to prosecute a legal action against
that person or estate as may be required or
authorized by law if different assistant attorneys
general are assigned the responsibility for each
action.
Thus, while the attorney general defends an individual for actions
undertaken within the scope of his state office or employment, he may
at the same time sue that person. as long as different assistant
attorneys general are assigned to each action.
Article 5547-300, V.T.C.S., the Mentally Retarded Persons Act,
authorizes the attorney general to initiate actions in the name of the
state to enjoin vi~olations of and enforce compliance with the
provisions of the act. Sec. 65. Another provision of the act
requires the attorney general to provide attorneys to defend employees
of the Department of Mental Health and Mental Retardation in any civil
action brought against them under the act. sec. 66. Thus, when the
attorney general initiates an action against an employee of the
department to enforce compliance with the act, he must also provide a
defense for that person.
In neither Hill V. Texas Water Quality Board, nor Hill v. Lower
Colorado River Authority did the court rule on any statute authorizing
the attorney general to bring suit against a state agency or to
represent parties on opposing sides of a lawsuit. Thus, neither case
P. 124
.. .
Honorable Lloyd Doggett - Page 8 (JM-28)
prohibits the attorney general from representing the Public Utility
Counsel against the Public Utility Commission.
SUMMARY
(1) The provisions of Senate Bill No. 577 and
House Bill No. 887 authorizing the public utility
counsel to represent his office in a judicial
proceeding are not constitutional unless the
attorney general certifies his inability to
represent the counsel and permits the public
utility counsel to appear in a judicial proceeding
subject to the attorney general's supervision.
(2) The legislature may constitutionally grant the
attorney general the authority to represent the
Office of Public Utility Counsel in a judicial
proceeding adverse to the Public Utility
Commission which is also represented by the
attorney general.
LA-I&* -
Very truly you**,
JIM
.
MATTOX
Attorney General of Texas
(
TOM GREEN
First Assistant Attorney General
DAVID R. RICHARDS
Executive Assistant Attorney General
Prepared by Susan L. Garrison
Assistant Attorney General
APPROVED:
OPINION COMMITTEE
Susan L. Garrison, Chairman
Rick Gilpin
Jim Moellinger
Nancy Sutton
P. 125