The .Attorney General of Texas
May 25, 1979
9RK WHITE
torney General
Honorable Chet Brooks, Chairmen Opinion No. W-24
Senate Committee on Human Resources
Senate Chamber Re: Constitutionality of legisla-
Austin, Texas 78711 tion to permit the Department of
Human Resources to represent the
state in court in child support
collection cases
Dear Senator Brooks:
You have asked whether e stnff attorney employed by the Department
of Human Resources may constitutionaLly be given the statutory authority to
represent the department in litigation seeking child support collection. The
bill, Senate Bill 698, e introduced, would provide:
Attorneys employed by the Texas Department of
Human Resources may represent the department in
any suit to collect child support or determine
paternity brought under the authority of [art. 695c,
S 18-B, V.T.C.S.]: At the request of the Texas
Department -of Human Resources, the Attorney
General shall represent the department in any appeal
of a suit brought under the authority of this section.
The legislation would also amend section ll.20 of the Texas Family
Code and provide:
At the request of the Texas Department of Human
Resources, the county or district attorney of the
county in which the suit is filed or transferred or the
attorney general shell represent the department in
any suit brought under Subtitles A and C of this title
[of the Family Code1 .
A constitutional question has arisen in light of provisions of the Texas
Constitution. Article 4, section 22 provides:
Honorable Chct Brooks - Page: Two (rlI+-24)
Sec. 22. ‘l’hr! Allorncy Gcwerol . . . shall represent the State in ~11
suits and plc~s in the. Supreme Court of the Stale in which the
Stnte may hr a p~~rty, nnd ~11~111 espccinlly inquire into the charter
rights of aII privrlte corportitions, and from lime to lime, in the
no&e of lh? SlsLe. take stlch action in the courts as may be proper
nnci ncccsstlry 10 prcvenl !my private corporation from exercising
any power or denmnding or collecting eny Species Of taxes, tolls,
freight or wharfage not authorized by law. He shell. whenever
sufficient cause exists, seek A judicial forfeiture of such charters,
unles 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 es may be
required by law. . . . (As emended Nov. 2, 1954, end Nov. 7, 1972.)
(Emphasis added). Article 5, section 21 provides:
sec. 21. . . . The County Attorneys shell represent the Slate in all
cases in the District end inferior courts in their respective
counties; but if any county shall be included in e district in which
there shell be a District Attorney, the respective duties of District
Attorneys and County Attorneys shell in such counties be regulated
by the Legislature.. . .
The conclusion drawn from a long history on cese law indicates that the above officials
alone have the constitutional authority to rcprcsenl the state. Hill V. Texas Water Quality
Board, 568 S.W.Zd 738 (Tex. Civ. App. - Austin 1978, writ t%zf’dn.r.e.); Brady v. Brooks,
89 S.W. 1052 (Tex. 1905); Agey v. American Liberty Pipeline Co., 172.S.W.2d 972 (Tex.
1943); Ademson v. Connally, 112 S.W.2d, 287 (Tex. Civ. App. - Eastland 1937,~no writ);
Allen v. Fisher, 9 S.W.2d 731 (Tex. 1928); Hancock v. Em& 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
counly’ettorney, or authorized %wistnnts, always to sign court papers as attorney of
record and actually litigate the suit in court.
The catitution 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 as the Attorney General has continuing authority
intervene and control the lawsuit, the proposed legislation is constitutional. Meud v.
Terrell, 200 S.W. 375 (Tex. 1918); Chnrles Scribner’s Sons v. Merrs, 262 S.W. 722(Tex.
1924);Genernl Appropriations Act, Acts 1977, 65th Leg., ch. 872 et 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. nrt. 895c, SS 18-B(b)(3), (e); General Appropriations
Act, Acts 1977, 65th Legzh. 872, art. V, S 41, et 3160 (co+~rt representetive of the state)
and S 42, et 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);
p. 74
Honorable Chet Brooks - Page Three (IQ+24)
Postell v. Texas Department of Public Welfare, 549 S.W.Zd 425 (Tex. Civ. App. Fort
Worlh 1977, writ ref’d n.r.e.); cf. Collins v. State, 506 S.W.2d 293 (Tex. Civ. App. San
Antonio 1973, no writ); Attorneaeneral Opinion M-249 (1968).
The court in Maud v. Terre11 upheld a statute which permitted the Comptroller to
employ a person to handle suits for state inheritance taxes. The court said:
The test, therefore, to be used in determining the validity of this
Act is simply whether by plain and unambiguous language it
deprives ‘the county attorneys. . . of their authority to prosequte in
the courts suits by the State for the recovery of inheritance taxes.
. . . .
[The provisions of the statute] do not unequivocally supplant the
county attorneys . . . in their authority to prosecute the suits of the
State for the recovery of the taxes. . . .
Id. at 376-377. The court went on to say that the statute in question did not “exclude the
=a. that [prosecution of the law suit] shall be in subordination to the authority of ,the
county attorney.” E at 377. See also Attorney General Opinion M-866 (1971). We feel
the court’s reasoning to be equally applicable here.
The constitutional authority of the Attorney General to represent the state cannot
be diminished by the proposed legislation. The committee substitute indicates that the
Act is not to be interpreted to limit the authority of the Attorney General to represent
the state in any proceeding. Accordingly, we believe the proposed statute is
constitutional. Our decision makes it winecessary to discuss the concurrent authority of
county or district attorneys to represent the state in district or inferior courts. See
Magnolia Petroleum Co. v. State, 190 S.W.2d 581 (Tex. Civ. App. - Austin 1945, no wrq
State Board of Dental Examiners v. Bickham, 203 S.W.2d 563 (Tex. Civ. App. - Dallas
1947, no writ); Garcia v. Laughlin, ~285 S.W.2d 191.(Tex. 1955); Moore v. Bell, 66 S.W. 45
(Tex. 1902); State v. Moore, =a; Sheppard v. Alaniz, 303 S.W.2d 846 (Tex. Civ. App.
San Antonio1957,m; State v. Walker-Texas Investment Co., 325, S.W.2d 209 (Tex.
Civ. App. - San Antonio),- (Tex. 1959); Attorney
General Opinion H-343 (1974).
Attorney General Opinion C-782 (1966) Is overruled to the extent that it Is
inconsistent with this opinion.
SUMMARY
Staff attorneys for the Department of Human Resources may
constitutionally represent the department in court subject to
supervisory control of the Attorney General.
p. 75
Honorable Chet Brooks - Page Four (NW-24 )
MARK WHITE
Attorney General of Texas
JOHN W. FAINTER, JR.
First Asaistnnt Attorney General
TED L. HARTLEY
Executive Assistant Attorney General
Prepared by David B. Brooks
Assistant Attorney General
APPRPVED:
OPINION COMMITTEE
C. Robert Heath, Chairman
David B. Brooks
Susan Garrison
Rick Gilpin
William G Reid
David Young
Bruce Youngblood
p. 76