concurring.
Although I join the Court’s opinion, I would like to devote more attention to the question of privity.
The doctrine of mutuality of estoppel now requires that the party who is to be estopped by a prior judgment be a party who was bound by the prior judgment, or one of that party’s privies. Eagle Properties, Ltd. v. Scharbauer, 807 S.W.2d 714, 721 (Tex.1990). One question in this case is whether the plaintiff in this case was a party to, or in privity with a party to, the administrative license revocation proceeding. I believe that, because of the fractured nature of Texas government, the plaintiffs in the two actions were neither the same nor privies.
Our present constitution, which was adopted in 1876, does not follow the federal model that puts all executive power in the hands of the president. The framers of our constitution, influenced by the political philosophy of the Jacksonian era and the despotic control of the reconstruction governor, deliberately chose to decentralize executive authority. The constitution created seven officers in the executive department,1 only one of whom is appointed by the governor, the others being elected by popular vote. This in effect creates a separation of powers within the executive department itself. A.J. Thomas, Jr. & Ann Van Wynen Thomas, “Interpretive Commentary,” IB Vernon’s Annotated Constitution of the State of Texas 680 (1997).
Administrative power is further decentralized by the creation of more than a hundred independent state agencies, practically all of which are headed either by elected executives or by part-time boards and commissions, that are independent of the governor and of each other. Even if the governor appoints the members of a commission (with the approval of the Senate which traditionally respects the rule of “senatorial courtesy” which allows a nomination to be vetoed by the senator from the nominee’s district), the members usually serve overlapping terms that are longer than the governor’s four-year term, which makes it difficult for the gover•nor to achieve control of a majority. And it is a gross mistake to assume that even the commissions wield real powers in state agencies; the executive directors chosen by the commissions tend to be the dominant force in the agencies. Clifton McCleskey et al, The Government and Politics of Texas 182-194 (7th ed., 1982).
*187That state agencies are not always in privity is made clear by the practice of state agencies to sue each other and to appear on opposite side of lawsuits. Not only may the state sue one of its own agencies, the Attorney General may represent both parties to the suit. Public Utility Commission v. Cofer, 754 S.W.2d 121 (Tex.1988). See State v. Thomas, 766 S.W.2d 217, 222 (Tex.1989) (Hecht, J., dissenting: “[This is a]n action by the State, represented by the Attorney General, against a state agency, also represented by the Attorney General. In effect the State has sued itself, the Attorney General has argued against himself, and each has both won and lost”).
The Department of Public Safety, which was the plaintiff in the administrative license revocation proceeding,2 is a typical example of an independent state agency. For purposes of this case, the Department is controlled by the Public Safety Commission, which comprises three citizens who are appointed by the governor for staggered six-year terms.3 The Commission appoints a director who has executive authority in the Department.4
The plaintiff in this criminal case, whom the appellee seeks to estop by the administrative decision, is the State of Texas which has given its authority to prosecute DWI cases to more than three hundred independently elected prosecutors, each of whom exercises authority in an area of the state no larger than a judicial district. This model differs from the federal model not only because there is no central prosecuting authority,5 but also because the prosecutors are officers of the judicial branch of government.6
Because the state government has been so deliberately decentralized, I believe that there is not such privity between the Department of Public Safety and the local prosecutor that the administrative decision against the Department would estop the prosecutor from relitigating a fact issue in a criminal trial. Cf. State v. Fritz, 204 Conn. 156, 527 A.2d 1157 (1987) (no privity between department of consumer protection and prosecutor); People v. Trucchio, 159 Misc.2d 523, 605 N.Y.S.2d 649 (Sup.Ct.1993) (commissioner of motor vehicles and prosecutor did not stand in sufficiently close relationship to be considered same party for purpose of collateral estoppel); State v. O’Rourke, 114 N.C.App. 435, 442 S.E.2d 137 (1994) (no privity between department of motor vehicles and prosecutor).
This conclusion is bolstered by the enactment of the statute that contains what is now codified as Section 524.012(e) of the Transportation Code:
A determination [for driver’s license suspension]:
(1) is a civil matter;
(2) is independent of and not a bar to any matter in issue in an adjudication of a criminal charge arising from the occurrence that is the basis for the suspension; and
(3) does not preclude litigation of the same or similar facts in a criminal prosecution.
This is a clear statement that findings in administrative license revocation proceedings may not collaterally estop criminal litigation. The statute does not apply to this case because it became effective after the date of the offense alleged in this case.7 But the statute is valuable as a statement of public policy *188that would not be possible if a constitutional doctrine of collateral estoppel applied to these proceedings. The legislature did not find it necessary to facilitate this policy by making any accompanying change in the administrative license revocation law or in the structure of state government to decrease the degree of privity between the Department of Public Safety and the local prosecutors.
Judge Baird’s dissenting opinion cites Department of Revenue of Montana v. Kurth Ranch, 511 U.S. 767, 114 S.Ct. 1937, 128 L.Ed.2d 767 (1994), for the proposition that the Supreme Court treats different state agencies as the same party, and Stennett v. State, 941 S.W.2d 914 (Tex.Cr.App.1996), as holding that the state comptroller and a state prosecutor are the same party for double jeopardy purposes. I am unable to agree that there is any consideration of this issue in those eases; in fact, the word “party” does not appear in the opinion of the Supreme Court in Kurth Ranch or in the opinion of this Court in Stennett. Neither case had anything to do with collateral estoppel, the doctrine of mutuality of estoppel, or privity.
The dissenting opinion also cites the statement of the Supreme Court that a judgment in a lawsuit between a party and one agency of the United States is res judicata in a lawsuit between the same party and another officer of the United States government. Sunshine Anthracite Coal Co. v. Adkins, 310 U.S. 381, 60 S.Ct. 907, 84 L.Ed. 1263 (1940). This is authoritative as to privity of federal agencies, but it has no authority over the question of privity among state agencies. As I have explained above, the structure of Texas government is markedly different. This is why I believe there is a different answer on the Court’s “crucial point” in Sunshine Coal: whether or not in the earlier litigation the representative of the government had authority to represent its interests in a final adjudication of the issue in controversy. The Department of Public Safety does not have such general authority to represent the interests of prosecutors.
KELLER, J., joins this opinion.
. One officer — the treasurer — was deleted by an amendment in 1995.
. See Tex. Trans. Code §§ 524. 012(b) ("department" suspends license), 524.041(d) ("department" may appeal).
. Tex. Govt.Code § 411.003. The Department is under the direction of the governor only in time of emergency. See Tex. Govt.Code § 411.012.
. Tex. Govt.Code §§ 411.005 et seq.
. The Attorney General of Texas has no general authority to initiate or conduct a criminal prosecution. If a prosecutor requests it, the attorney general may provide assistance. Tex. Govt.Code § 402.028.
. See Tex. Const, art. 5, § 21.
. The effective date was January 1, 1995. Acts 1993, 73rd Leg. R.S., ch. 886, § 20. The statute did not apply to actions that occurred, or offenses that were committed, before the effective date. Id., § 18. The offense in this case is alleged to have been committed on August 9, 1993.