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                           THEATTORNEYGENERAI.
                                         OF      TEXAS
                                        AUWFIN     1%.TEXAS
         PRICE  DANIEL
         ATTORNEYGENERAL
                                              Cctober    9, 1947

                Honorable R, CO Hughes,                  Qplniaa Bo.   v-403
                Chairman, State Board
                of Plumbing Examiners,                   Rer Authority of State
                Austin, Texas                                Board of Plumbing
                                                             Hamminers to em-
                                                             ploy Its own legal
                                                             department E
                Dear Mr L Rughes:
                          Your request is for an opinion           of this   depart-
                ment on the following questionr
                                            ,.
                               Does the State Board of plumbing Bx-
                           amfners, under the provisiona  of the Plumb-
                           ing License Law of 1947, have the authority
                           to employ its own legal department for coun-
                           sel and enforcement purposes?
                           The only provisions    of Senate Bill No, 188,
                The Plumbing License Law of 1(94r7, of the 50th Legisla-
                ture, that are in anywlse,pertfnsnt     to the question un-
                der oonsideration  are the, following :
                               Qeet~~on 5, fn part:           c
                            “The Board shall adml&t$$ter the provf-
                      sfons of thfs Act,     The 0oarQ &all formal-
                      ly elect a chairman an8 a reeretary-treasur-
                      er from its members and may adopt such rules
                      as it deemo necessary, for the orderly conduct
                      of its affairs,    The Board ia hereby authorf-
                      aed and empowered to employ, promote and dfs-
                      charge such assistants    and employees as it
                      may deem deasssary to properly carry out the
                      intent and purpose of this Act, anQ to ffx
                      and pay their compensation aad salaries    and
                      to provide for their &ties     and the teams of
                      their employment 0”
                               Swtfoa   9? in part:
                               “The Boar+d shaU bawl power to appoint p
Honorable   R, G, Hughes,          page 2     (V-403)


     by an order fn writing,  any corn etent
     person to take testimony in sue R hearing,
     who shall have pover to administer    oaths,
     issue subpoenas and compel the attendance
     of witnesses,  ard the decision  of the
     Board shall be based upon its examinatfon
     of the testimony taken and the records
     produced OI’
          It is clear that no express or Implied auth-
orfty fs given in the Act to employ an attorney or at-
torneys as a legal department for the purpose of giving
legal counsel or advice or handling lftfgation,    The
Board cannot employ an attorney to do those things which
under the Constitution  or statutes 4t is the duty of the
U;rney   General, a PIstrict   or County Attorney to per-
     0
           In Section 22 Article   4 of the Texas Constl-
tutfon, we find the foliowing   provision with reference
to the Attorney General:




      unless        otherwise    rx~ressl~    directed     by law,




               It    fs rtated    in 5 Tex.    Jur,     p0 378, that:
             “Important 88ong the Attom
      numerous task8 is th e4 utt       o il
      Go ver nolnQr tha hoa48 of
      puLm;eyt 8 0 Thr rtatutr      poti&     that he
                      at tiw rrqtwrt of thr Governor
      or th6 kd”of      any dopartwattr of the state
      (ioverrment . 0 0 give thra w?ittea        advice
      upon any question     touching the public lnter-
      eat, or concclrning      their officibl    duties, n ‘I

           In Opinion Ao. O-6066, by a fCm%Br Attorney
General, concar’nfng the le ality o? certain proposed
lxpenaitures by the Stat. d oard of Public Accounting,
.       ,’
    .
             Honorable R, G, Hughes, page 3         (V-403)


             it   fs safd:
                           “Wfth reference  to your third ausstioQ,
                    the Board is nowhere xare          authorized to
                    pmlosr   counsel,   Imulted authority to emalov



                    to the heads of all State Boards UD n matters
                     oncernins their official  duties,   Coonsequent-
                    yy in answer to your third question     you are
                    reipectfully  advised that a legal fe: of the
                    type there described may not be considered an
                    expense in connection with the maintenance of
                    the Board within the meaning of Article   39.”
                    (Emphasis ours)
                         In Section 21, Article      5 of the Constitution,
             the following   is found:
                           “The County Attorneys shall represert
                    the State in all casIs in the District         and
                    Inferior    courts in their respective     coun-
                    ties-l but If any county shall be Included
                    in a dfstrict      in which .there shall be a
                    district    attorney,   WWIrespective    dutfes
                    of dfstrict     attorneys and county attorneys
                    shall in such counties be regulated by the
                    Laglslature,~~
                         The Constitution    empowers district    and county
             attorneys to represent the State in all cases, civil ifid
             erimlnal,   in the district   and Inferior   courts of their
             respect fve count fes o except In those cases where it con-
             fers that power on the Attorney General and where the
             Legislature   has, under Section 22, Article      4: of the Con-
             stitution,   created additional    causes of action in favor
             of the State ahd entrusted their prosecution,         whether in
             the trial   or in tlie appellate   courts   solely to the At-
             torney General,     Maud v. Terre11     104 Tax. 97 200 F. W o
             375; Brady v. Brooks, 99 Tex. 36b, 89 S. W. 1652,
                        In view of the above quoted provisions   of Se-
             nate Bill 188 and of the other statements of law and the
             former Attorney General’s opinions,   the Board does not
             have authorPty to employ an attorney or attorneys for
             iegal counsel and advice or for conducting litigation*
             The Board does have authority, however, under Sections
Ronorable   Ft. G. Hughes, page 4   (V-403)



 5 and 9 of The plumbing License Law of 1947 to employ an
 attorney or attorneys for the same purposes for which
‘any assistant  or employee can be employed.  They may be
 used for such enforcement purposes as the making of in-
 vestigations  and conducting of hearings and the taking
 of testimony therein.


           The Board of Plumbing Examiners does not
     have authority under The Plumbing License Law
     of 1947, S, B, 188 of the 50th Legislature        to
     employ attorneys for legal counsel and advice
     or handling litigation     or for the purpose of
     doing any other thing which under      the Constitu-
     tion or statutes it is the duty of the Attorney
     General     a District  or County Attorney to per-
     form.    i t may, however, employ attorneys as as-
     sistants    or employees and may use them for the
     making of investigations     and for the conducting
     of hearings and the taking of testimony therein.
                                     Yours very truly,
                                A’l’TORNlK’ GENERAL
                                                  OF TEXAS




                                    Assistant


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