dissenting:
I am unable to conjure the conclusion reached by my two brethren that, although Texas does not expressly provide either by statute or in its Constitution for parens patriae actions by its attorney general, such actions are impliedly authorized under the broad language of Tex.Bus. & Com.Code Ann. § 15.40(a) (Vernon 1981).1
I begin with the proposition, which can hardly be gainsaid, that the powers of the attorney general derive either from common law or from Texas’s statutes and Constitution.
The common law authority vis-a-vis par-ens patriae has, commonly, been limited to actions involving infants and those having mental or other incompetencies and to actions involving the quasi-sovereign interests of the state. See Malina and Blechman, Parens Patriae Suits for Treble Damages under the Antitrust Laws, 65 Nw.U.L.Rev. 193, 198-203 (1970). As stated by the majority here, the instant case involves neither of these common law actions.
We are left, therefore, with Texas’s statutes and Constitution.2 In my view, it cannot be reasonably said that the Texas Legislature intended that section 15.40 provide the attorney general authority to bring the parens patriae action involved here.
First, I look to the statute itself. No mention is made of parens patriae suits. Despite the efforts by the majority to read such authority into section 15.40, this statutory provision is, on its face and by the clear import of its language, limited to suits “on behalf of the state or of any of its political subdivisions or tax-supported institutions .... ” (Emphasis added.) This suit has not been brought “on behalf of the State” or on behalf of its subdivisions; *1029rather, as stated in the caption of the case, it has been brought “as parens patriae on behalf of natural persons residing in Texas.”
The majority reads the provision in section 15.40 for suits “on behalf of the state” as including authority to bring parens patri-ae actions. The state as a political entity is not the intended beneficiary of this suit; if any recovery is had, it will be by a few citizens who will have a few pennies and quarters put in their pockets with attendant publicity of the great victory against door-to-door vacuum cleaner salesmen3 achieved by an ever-vigilant attorney general’s office. The majority thus confounds the clear intent of the statute, which, in addition to section (a) discussed by the majority opinion, provides for notification of intent to bring suits by the attorney general only to political subdivisions and to tax-supported institutions. No mention is made in § 15.-40(a) of notification to the public at large of any parens patriae suits. Had the legislature been thinking of parens patriae suits, it presumably would have provided for such notification so that individuals who desired to “opt-out” and bring their own cause of action could do so. Further, the statute provides specifically that when an action has been brought on behalf of a political subdivision or on behalf of a tax-supported institution the state shall retain such sums out of damages recovered as are necessary to reimburse the state for expenses incurred by it in the prosecution of the action. No mention is made of retention of funds out of damages recovered for individuals as might be recovered in a parens patriae suit. There is a good reason for this: the legislature never gave any thought that some federal court would later read such suits and such authority of the Texas attorney general into the statute.
Moreover, in section 15.40(b) the statute provides that “[i]n any action brought by the Attorney General pursuant to the federal antitrust laws for the recovery of damages by the State or any of its political subdivisions or tax-supported institutions” the attorney general may take such actions in the prosecution of the suit as are appropriate and necessary. Glaringly absent from this statutory sub-section is any discussion of actions by the attorney general in connection with a suit brought to recover damages suffered by individuals. “The State” by any rational interpretation cannot be said to be synonymous with parens patriae representation.
Despite the absence of any provisions for parens patriae actions in section 15.40, the majority essentially holds that the broad language contained in this statutory section includes within its broad reach parens patri-ae authority and that even if the state legislature did not specifically confer this authority, parens patriae authority is consistent with the authority which was specifically granted.4 So the majority, benifi-cently, magically, confers this authority by its own act; so much for preachments against judicial legislation.
Needless for me to say, this, in my opinion, exceeds the authority of this court. As stated in State v. Harney, 164 S.W.2d 55, 56 (Tex.Civ.App.1942), “the powers and duties *1030of the Attorney General are prescribed by the Constitution and Statutes, [and] those powers must be limited to those so prescribed, and may not be enlarged by the courts.” Also Hill v. Lower Colorado River Auth., 568 S.W.2d 473, 480 (Tex.Civ.App. 1978) (stating that there has been “consistent adherence” to this principle). So, where the majority states that there is “nothing to justify the judicial engrafting of such a limitation” on the attorney general’s power to bring a parens patriae action, I say, to the contrary, there is every reason why this court cannot engraft the extra-statutory expansion of authority granted by the majority opinion. Under Harney and Hill, it is not enough that parens patriae authority is “consistent with” the statutory authority provided by the legislature. The authority exercised by the attorney general must be real and actual and conferred by the legislature — not by Congress or by the Fifth Circuit Court of Appeals.
In its assumption that section 15.40 does subsume parens patriae actions, the majority, relying on Mid-Atlantic Toyota, makes much of the argument that parens patriae authority is contained in the broad grant of authority under section 15.40 because the economic well-being of the state is implicated and therefore the state has a legitimate interest in pursuing the antitrust remedy sought.
Of course a state has a legitimate interest in its economy. But that obvious interest does not translate, absent the philosopher’s stone, into general authorization for the state’s attorney general to pursue a parens patriae action absent authority of state legislation. In fact, as the Antitrust Improvements Act was originally introduced, a state would have been expressly authorized to bring actions for harm to its general economy as well as to its citizens.5 This “general economy” provision was omitted from the Act’s final version which, as enacted, provided only for parens patriae actions to recover damages “for injuries sustained by such natural persons to their property . ”6
I see no reason why, if a state may not sue in its own name for general economic harm, it may be allowed under some “natural law” concept to come in and sue in the name of its citizens for redress of that harm. Nor, given section 4C’s clear provision only for recovery of damages for injuries sustained by individuals, does this backdoor approach provide support for suit by the attorney general. The majority and Mid-Atlantic Toyota attempt to equate “action on behalf of the State” with “economic well-being” with “parens patriae." The logic does not survive the leap, however. The “general economy” argument strikes me as irrelevant.
In sum, the majority ignores the substantive distinction between suits on behalf of the state, which are provided for in section 15.40, and parens patriae actions, which are not provided for, explicitly or implicitly, in section 15.40. The majority opinion holds essentially that “actions on behalf of the state” include parens patriae suits. The majority by its writing erases the traditional, historical basis for parens patriae actions. Twelve states and the District of Columbia have provided express authority to their attorneys general to bring antitrust parens patriae actions.7 According to the *1031majority, they could have saved themselves the trouble.
The doctrine of parens patriae evolved in a specific way with specific applicability. It is a distinct, discrete jurisdictional device. The Texas State Legislature, had it seen fit, could have conferred upon its attorney general authority to bring parens patriae suits. The legislature clearly has not done so. The majority, despite the absence of authority, not only reads between the lines of the statute, but veritably gazes into the Utopian skies of “ought-to-be” and glimpses that authority. I am not gifted with such visionary powers. I see no authority. I dissent.
. Because the majority opinion turns solely upon the issue of the attorney general’s parens patriae authority under Texas law, this dissent is directed solely to that issue. As noted in note 3 of the opinion, however, several residual issues exist, the most important being that the Antitrust Improvements Act of 1976 grants authority to a state attorney general to bring a parens patriae antitrust action “unless the State provides by law for its nonapplicability in such state.” I have very serious doubts about Congress’s constitutional authority to grant to a state’s attorney general authority which the state has not seen to confer. Nor is this tenth amendment violation cured by the simple expedient of an “opt-out” clause. At the very least, a state attorney general will have been granted powers by Congress beyond those granted by the state until the state has an opportunity to exercise its option. The putative evanescence of an unconstitutional grant of power does not render it constitutional.
. In addition to section discussed in the majority opinion, the attorney general has relied upon Tex.Rev.Civ.Stat.Ann. Art. 4409 (Vernon 1976), which provides that the attorney general
shall . .. inquire into charter rights of all private corporations and, in the name of the State take such legal action as may be proper and necessary to prevent any private corporation from exercising any power or collecting any species of taxes, tolls, freight or wharfage not authorized by law.
Also, the attorney general refers us to Tex. Const. Art. IV § 22, which states that 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 ... and perform such other duties as may be required by law.”
My reasons for concluding that section 15.40 does not contain parens patriae authority are equally applicable to these two provisions.
. This suit involves an allegation that the defendants, through the mechanism of selling vacuum cleaners door-to-door, violate antitrust law by “imposing a system of resale price maintenance and unreasonable customer restrictions on their distributors and participating in group boycotts of retail vacuum cleaner stores.” Brief for Appellee at 1.
The essential allegation in this case appears to be that, selling door-to-door, the defendants were able to avoid head-to-head competition with other vacuum cleaner retailers, avoid price advertising and maintain artificially high prices for their products.
. Indeed, in the State’s brief, the attorney general takes the ingenuous position that, whether or not the Texas legislature contemplated par-ens patriae suits in enacting section 15.40, he possesses that authority because the statute confers authority to recover all damages recoverable under the federal antitrust laws, such as damages suffered by natural persons. Brief for Appellee at 12-13. This implicates the tenth amendment, of course, and as discussed supra note 1, neither the majority nor this dissent deals with that issue. The significance of the rather glib concession by the appellee is that, as in the majority opinion, the desires of the Texas state legislature are deemed irrelevant.
. In Hawaii v. Standard Oil Co., 405 U.S. 251, 264, 92 S.Ct. 885, 892, 31 L.Ed.2d 184 (1972), the Court held that, inasmuch as section 4 of the Clayton Act allowed recovery only for injury to “business or property,” suits for general economic harm had not been provided for by Congress. Further, the Court held that to permit recovery for such harm would duplicate individually recoverable damages.
. See Scher Emerging Issues under the Antitrust Improvements Act of 1976, 77 ColumX. Rev. 679, 713 n. 195 (1977).
.See Cal.Bus. & Prof.Code § 16760; Conn. Gen.Stat.Ann. § 35-32; Del.Code, tit. 6, § 2108; D.C.Code Ann. § 28-4507; Fla.Stat. Ann. § 542.22; Haw.Rev.Stat. § 480-14; Mass. Ann.Laws 93, § 9; Nev.Rev.Stat. § 598A.160; Or.Rev.Stat. § 646.775; R.I.Gen.Laws § 6-36-12; S.D.Comp.Laws Ann. §§ 37-1-23 to -32; Va.Code § 59.1-9.15; W.Va.Code § 47-18-17.