April 2, 1974
The Honorable James H. Stewart, Jr. Opinion No. H- 268
President, Tyler State College
100 E. Berta Re: Validity of restrictions
Tyler, Texas 75701 on the authority of state
colleges to employ out-
side legal counsel, imposed
Dear President Stewart: by the Appropriations Act.
Article V. Section 41 of the Appropriations Act for fiscal 1974 to
1975 (Acts, 63rd Leg., ch. 659, p. 1786) provides:
“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 may then
:&l.i,ze appropriated funds to retain outside counsel. ”
Thert is no simiiar restriction upon the use of appropriattd funds
for “inside” counsel (attorneys who are state employees) e
Your letter notes that during fiscal 1973. Tyler State College retained
an at.tornay in private practice as legal counsel to the Board of Regents
i nd Administr~ation of the College. Your question is whether it is per-
missible fo.? this person to continue as counsel for the institution during
the current biennium with payment for his services being expended
from funds appropriated to the College in the Appropriations Act, supra.
You. have r,ot. yet asked the Att:orney General to provide the services
which you wocll,d expect the Attorney General to render during the
birntium. nor ha,~ie~:
y~oll described them for us.
Saving for lo.trr discussion the question of whrrher Tyler Sta’e
Coilege wou1.d have autborify to retain and pay an attorney in the absence
of the quoted Appropriation Act language, our first concern is with the
po 1.256
The Honorable James H. Stewart, Jr., page 2 (H-268)
validity of that Ianguage, Appropriation Act riders which attempt to
do more than detail, limit or otherwise restrict the use of appropriated
funds have often been held invalid as attempts to enact general legis-
lation in violation of Article 3, Sec. 35 of our Constitution. See
Attorney General Opinions M-1199 (1972) and V-1254 (1951). But
riders which do no more than declare the established law are per-
missible. See Attorney General Opinion C-449 (1965).
On two previous occasions Attorney General Opinions have dealt
with the validity of Appropriation Act riders giving the Attorney
General power to control the retention of outside counsel by state
agencies. Attorney General Opinion M-249 (1968) upheld an Approp-
riations Act provision which stated:
“ATTORNEYS. From and after September 1. 1967,
should a vacancy occur in any department or institution
of higher learning, not otherwise exempted, in Articles
III or IV of this Act in a position which has as its pri-
mary function the practice of law and rendering of
legal services and counsel, said position shall be filled
only after having received the written approval of the
Attorney General.
“None of the funds herein appropriated may be
expended for l.egal services until the Attorney General
has giv~en prior written approval for the employme+
of sV;ch personnel and the compensation to be paid,
This pro,vision shall apply to all legal services ex-
cept *hose rendered by personnel who are :lassified
in the Position Classification Plar..” (Emphasis added).
But In Attorney General Opinion M-1199 (1972) identical passages
(except for the date) Tontained ir, t,br 1971 General Appropriations Act
--.-~Y- L : 2 i? v&id as constituting ger.rraJ, legisla,tior,. Attorney General
Opini<,n M-249 (1968) was expressly overruled.
Thr-~language reconsidered in M-J 199 purported to give the Attorney
General a suhstarkive discrr4onary power not accorded him by general,
law. Assuming that general J.aw permitted an agency to hire an attorney,
it would be a modification of that law to s.ubstitute the discretion of the
Attorney Genera? for the discretion given the agency in making the decision,
.
p. 1257
; -
The Honorable James H. Stewart, Jr., page 3 (I-I-268)
Such provisions were not merely legislative limitations on the expend-
iture of appropriated funds. They did not impose objective limitations
requiring only ministerial executive action; they subordinated the
executive discretion of the agency to that of the Attorney General.
Compare Attorney General Letters Advisory Nos. 2, 42 and 74 (1973).
and Attorney General Opinion H-175 (1973).
We believe, however, that there is a material difference between
the invalid provisions of previous Appropriation Acts and the language
of the current Appropriations Act cited at the beginning of this opinion
and that the Courts would consider the current language to be consti-
tutionally permissible.
The current language under discussion does not substitute the
discretion of the Attorney General for that of the agency in the matter.
Only ministerial functions are assigned to the Attorney General.
Whether he approves or disapproves of the agency using “outside”
counsel is not a relevant consideration in the matter. His only duty
is to determine whether he is able to provide the requested services,
and certify his inability if it exists.
Giving effect to the provision does not amend or modify general
law. The Attorney General is the chief legal officer of the state, and
it is his constitutional duty to advise executive officers if requested and
to represent the state in the courts. Article 4, Sec. 22, Texas Con-
stitution. The Legislature cannot alter the Attorney General’s consti-
tutional prerogatives. If it chooses, it may authorize an agency to
seek additional legal assistance so long as it does not attempt to
displace the Attorney General. See Attorney General Opinion C-782
(1966). But it cannot forbid to the Attorney General the exercise of a
power constitutionally vested in him. For that reason, even when
an agency has been statutorily permitted to obtain additional legal
assistance, either by the permanent employment of house counsel
(“i;;i&” counsel) or the temporary engagement of a private legal
practitioner (“ootslde” counsel) there still exists in the Attorney
General the legal authority to perform all legal services for a state
agency.
Thus, the Appropriation Act provision that limits expenditures for
outside legal ccunsel to those instances in which the Attorney General
certifies that he has not the capacity to perform the needed services
p. 1258
The Honorable James H. Stewart, Jr., page 4 (H-268)
does not confer any additional authority upon the Attorney General, or
amend any statutory authority of an agencyio employ outside counsel.
It merely limits expenditures for such a purpose, and insofar as
it impliedly recognizes authority in the Attorney General to perform
the needed services, it is merely declaratory of existing law.
In our opinion, therefore, the rider to the 1973 Appropriation Act
is valid, and no appropriated money may be legally spent by any agency
to employ “outside” legal counsel unless the Attorney General has been
requested to perform the needed services, but has certified his inability
to provide them. Inasmuch as Tyler State College has not made such
a request, nor received such a certification from the Attorney General,
presently it has no legal authority to expend appropriated funds during
the 1973-1974 biennium to retain outside legal counsel.
SUMMARY
A rider to the Appropriations Act imposing as a
condition precedent to the employment of “outside”
legal counsel that the Attorney General be first asked
to provide the services and, if unable,to certify that
fact, is a Mlid limitation on the expenditure of ap-
propriated fundr.
Very truly yours,
Pa2
JOHN L. HILL
Attorney General of Texas
~~~~~~.-~
-A?--
. 1 + Chairman
Opinion Committee
p. 1259