The Attorney General of Texas
May 26, 1981
MARKWHITE
Attorney General
Honorable Bennie Bock II Opinion No. MW-340
Chairman
Committee on Environmental Affairs Re: Whether Texas Parks and
House of Representatives Wildlife Commission may contract
Austin, Texas 78769 with a private attorney to
prosecute shrimp and confiscation
ceses
Dear Representative Bock:
The Texas Parks and Wildlife Department is a state agency under the
policy direction of the Parks and Wildlife Commission. Parks and Wildlife
Code SlLOlL Among other things, the department is responsible for
enforcing state laws which protect wildlife and marine life. SS12.001; 12.101.
You ask whether the department may:
contract with a private attorney to prosecute shrimp
and confiscation cases and other wildlife infringe-
ments of the law to aid parks and wildlife.
You advise that prosecutions of game laws have heretofore been undertaken
by local district attorneys’ offices.
Violations of the Parks and Wildlife Code provisions relating to wildlife
and marine life constitute misdemeanors or felonies, which call for a fine
and, in some instances, a jail sentence. See e.
SS6L901, 66.106, 76.037, 76.216, 77.020, 78.17i+I%i%Zsa~~o?Zi~tCs~~
violations are therefore guilty of criminal offenses. See also Penal Code
SSl.OS(b) (classification of offenses outside Penal CodeJml6 Tex. Jur.
2d Criminal Law SSl-6.
Texas law places the responsibility for representing the state in
prosecutions of criminal cases in the district and inferior courts in the hands
of county and district attorneys. Article V, section 21 of the Texas
Constitution provides that:
. . . 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.
p. 1117
Honorable Bennie Bock II - Page Two (~~-340)
Article 2.01 of the Code of Criminal Procedure provides that:
Each district attorney shall represent the State in all criminal
cases in the district courts of his district, except in cases where
he has been, before his election, employed adversely.
Article 2.02 of the Code of Criminal Procedure provides that:
The county attorney shall attend the terms of court in his
county below the grade of district court, and shall represent the
State in all criminal cases under examination or prosecution in
said county; and in the absence of the district attorney he shall
represent the State alone and, when requested, shall aid the
district attorney in the prosecution of any case in behalf of the
State in the district court.
See Garcia v. Laughlin, 285 S.W. 2d 191(Tex. 1955); Maud v. Terrell, 200 S.W. 375 (Tex.
1918); Brady v. Brooks, 89 S.W. 1052 (Tex. 1905); State v. Moore, 57 Tex. 307 (1882);
Shepperd v. Alanix, 303 S.W. 2d 846 (Tex. Civ. App. -San Antonio 1957, no writ);
Attorney General 6pinions MW-255 (1980); MW-24 (1979). These officers are therefore
responsible for representing the Parks and Wildlife Department in the district and
inferior courts in prosecutions of offenses arising under the Parks and Wildlife Code.
Because officers who are legally obligated to represent the state in the courts
may not be stripped of their authority, see,.e.g., Garcia v. Laughlin, ~~JIX, it is clear
that the Parks and Wildlife Department mav not hire orivate counsel to prosecute
criminal eases without the involvement of the district or county attorney.‘ But the
question remains whether it may use appropriated funds to hire a private attorney to
assist these officers in prosecuting these cases. Our courts have held that officers who
are responsible for representing the state in court may, under some circumstances, be
assisted in carrying out this obligation, provided such assistance is rendered in a
subordinate capacity and the officer remains in control of the litigation. See, e..g.,
Maud v. Terre& e, (upholding statute authorizing comptroller to contract with
“suitable person” to collect inheritance taxes on theory that statute did not purport to
deprive county attorney of his authority); Allen v. Fisher, 9 S.W. 2d 731 (Tex. 1928);
Brady v. Brooks, supra, (under article IV, section 22 of the Texas Constitution,
Attorney General may be given duty to represent state in various matters in district
court, along with county or district attorney); see also Attorney General Opinions
MW-255 (1980) (article 332d, V.T.C.S., authorizes Prosecutors Coordinating Council to
furnish prosecutorlal assistance to a district attorney at latter’s request); MW-24 (1979)
(statute authorizing Department of Human Resources staff attorneys to represent
department in litigation seeking child support upheld on ground that any such
representation is provided with implicit consent of Attorney General).
We think this question must be answered in the negative. While we believe that
the legislature could enact valid legislation authorizing the department to contract
with private counsel to assist county and district attorneys in performing their lawful
function, it has not done so. In our opinion, the department may exercise this power
only if the legislature clearly authorizes it to do so.
p. 1118
L .
Honorable Bennie Bock II - Page Three (~~-340)
The cases in this area do not address the precise question of whether an agency
may only hire private counsel for the purpose described above if the legislature
authorizes it to do so. But we believe that this conclusion follows from the discussion
and approach taken therein. In Maud v. Terre& e, for example, the court stated
that:
. . . ITI he powers thus conferred by the Constitution upon these
officials [the Attorney General and county and district
attorneys] are exclusive. The Legislature cannot devolve them
uoon others. Nor can it interfere with the rieht to exercise
them. . . It may provideassistance for the prop& discharge b
these officials of their duties, but since in the matter o
prosecuting the oleas of the State in the courts the oowers
reposed in-them are exclusive in their nature, it cannot, for the
performance of that function, obtrude other persons upon them
and compel the acceptance of their services. Wherever
provision is made for the services of other persons. . . it is the
constitutional right of the Attorney-General and the county and
district attorneys to decline them or not at their discretion,
ad, if availed of, the services are to be rendered in
subordination to their authority. (Emphasis added).
200 S.W. at 376. In State Board of Dental Examiners v. Bickham, 203 S.W. 2d 563 (Tex.
Civ. App. - Dallas 1947, no writ), which involved an appeal from an order of the board
suspending Bickham’s license to practice dentistry, the court stated, at p. 565-66, that:
. . .The provisions of Art 4550a. . . confer the power on the
Dental Board to employ necessary assistance to State
prosecuting officers in the enforcement of the law pertaining to
unlawful practice of dentistry. (Emphasis added).
Other relevant cases and Attorney General Opinions seem clearly to assume that such
statutory authority is a prerequisite; in fact, the question in most of them was whether
the particular statute at issue went too far, i.e., divested the Attorney General or the
county and district attorneys of their lawfulxthority. See, e.g., Garcia v. Laughlin,
supra; Attorney General Opinions MW-225; MW-24, supra
Our conclusion that an agency may not hie private counsel to assist county and
district attorneys in prosecuting criminal cases on its behalf unless it is specifically
authorized to do so is not affected by cases such as Powers v. Hauck, 399 F. 2d 322
(5th Clr. 1968); Ballard v. State, 519 S.W. 2d 426 (Tex. Crim. App. 1974); Bingham v.
State, 290 S.W. 2d 915 (Tex. Crlm. App. 1956); and Phillips v. State, 263 S.W. 2d 159
(Tex. Crlm. App. 1959). Those cases merely hold that a defendant’s constitutional
right to due process is not denied if a private attorney is permitted to participate in a
criminal prosecution as long as the district attorney retains control and management
of the prosecution. They imply nothing with regard to the cicumstances under which
private counsel may be retained.
p. 1119
Honorable Bennie Bock II - Page Four (~~-340)
It has been suggested that section 12.105 of the Parks and Wildlife Code affords
the required authority. That section provides as follows:
(a) The department may file complaints in the name of the
State of Texas to recover fines and penalties for violations of
the laws relating to game, birds, and fish.
(b) The department may file a complaint and commence
proceedings against an individual for violation the laws
relating to game, birds, and fish without the approval of the
count attorne of the county in which the proceedings are
-is added).
We assume the contention is that the term “commence proceedings” connotes
something more than merely filing a complaint, &, that it involves actual
prosecution of the case, and that if the department may commence proceedings
without the county attorney’s approval, it necessarily possesses the authority to hire
private counsel to do so.
We decline to construe section 12.105 this broadly. Were we to do so, we would
be forced to conclude that the statute is unconstitutional, because it would deprive
county attorneys of their authority to represent the department in prosecutions of
offenses arising under the Parks and Wildlife Code. In our opinion, section 12.105
merely authorizes the department to file a complaint without the county attorney’s
approval; it does not authorize anything more to be done without his involvement.
The phrase “and commence proceedings” is superfluous, because the act of filing a
complaint is itself what “commences proceedings” Once a complaint is filed, the
duties of the county and district attorneys are as prescribed by statute. See Code
Crim. Proc. arts. 2.01-2.08.
Neither does the General Appropriations Act, Acts 1979, 66th Leg., ch. 843, at
2445, provide the necessary authority. Article V, section 42 of the act provides that:
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 utilize appropriated fimds to
retain outside counsel.
5 at 2917. However, it is settled that general legislation cannot be enacted in an
appropriation bilL See Attorney General Opinion M-1199 (1972), which cites, among
other authorities, Moore v. Sheppard, 192 S.W. 2d 559 (Tex 1946); see also Attorney
General Opinion H-268 (1974) (appropriation bill may do no more than declare
established law). Thus, this provision does not provide authority for an agency to
contract with a private attorney; on the contrary, it merely sets forth a requirement
which must be met before an agency which is authorized to employ outside counsel
may use appropriated ftmds to do so. -See Attorney General Opinions MW-255, MW-191
(1980).
p. 1120
Honorable Bennie Bock II - Page Five (~~-340)
SUMMARY
Absent statutory authority permitting it to do so, the Parks
and Wildlife Department may not contract with a private
attorney to prosecute shrimp and confiscation cases and other
wildlife infringements of the law. No such statutory authority
exists.
MARK WHITE
Attorney General of Texas
JOHN W. FAINTER, JR.
First Assistant Attorney General
RICHARD E. GRAY III
Executive Assistant Attorney General
Prepared by Jon Bible
Assistant Attorney General
APPROVED:
OPINION COMMITTEE
Susan L. Garrison, Chairman
Jon Bible
Timothy L. Brown
Rick Gilpin
Jim Moellinger
p. 1121
Untitled Texas Attorney General Opinion
Combined Opinion