                     November 23,‘1g66



Hon. Crlss Cole, Chairman                Opinion No. C-782
Senate Committee Study of
  Nursing Profession Needs               Re:   Whether it is legal for
Capitol Building                               the laws concerning the
Austin, Texas                                  actions of a Texas state
                                               agency to provide that an
                                               agency shall retain legal
                                               counsel to represent that
Bear Senator Cole:                             agency.
          YOU have requested an opinion from this office on
the above stated matter, We quote from your letter as follows:
         "As Chairman of this Senate Committee
    sttidyingnursing profession needs in the
    State of Texas, I request that you furnish
    the committee an opinion as to whether it is
    legal for the laws concerning the actions of
    a Texas state agency to state that an agency
    'shall retain legal counsel' to represent that
    agency.
         "I have particular reference to a state
    agency that would be a licensing agency.
    Example: Board of Nurse Examiners.
         "We are concerned as to,the legality of
    the statutes, or Act creating the agency and
    giving provisions by which this agency shall
    operate, saying that this agency shall retain
    its own legal counsel to represent that agency.
    Our question is whether such language written
    into an Act by amendment would be legal.
                                                             -
         "Of course many of us'have long felt that
    the Attorney General of Texas is the attorney
    for all state agencies."




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Hon. Crlss Cole, page 2 (C-782)


          In 1947 this office rendered an opinion (V-403) for
the Honorable R. G. Hughes, Chairman, State Board of Plumbing
Examiners, to the effect that there was no express or Implied
authority In the Plumbing License Law for the board to have its
own legal department for counsel and enforcement purposes. The
basis for Attorney General's Opinion V-403 Is the fact that
the Plumbing License Law did not expressly provide for the
agency having Its own legal counsel, and that the constitutional
provisions relating to the powers of the Attorney General and
the district and county attorneys to represent the state negated
any implied powers in the board to engage its own legal depart-
ment.
          That opinion did not answer the question presented
here, I.e. whether the Legislature may expressly provide that
an agency may have its own legal counsel to represent the
agency in court.
            Section 22 of Article IV, Vernon's Texas Constitution,
provides:
          "The Attorney General shall hold office
     for two years and until his successor Is duly
     qualified. He 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 give
     legal advice in writing to the Governor and other
     executive officers, when requested by them, and
      erform such other duties as may be requiredby
     -aw. . . ." (Emphasis added)
            Section 21 of Article V, Vernon's Texas Constitution,
provides:
            ”
               .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 b I 1 d d i      district in which
     there shall beea %&&t     it:orney, the respective
     duties of District Attorneys and County Attorneys
     shall in su$h counties be regulated by the Legisla-
     ture. . . .   (Emphasis added)
          The Supreme Court of Texas in Maud v. Terrell, 109
Tex. 97, 200 S.W. 375 (1918) construed the above quoted provi-
sions of our Constitution. The Court at page 376 stated:
          "That instrument, fihe Constitution7 by
     Section 21 of Article 5, lodges with thF County



                           -3751-
Hon. Criss   Cole, page 3 (C-782)       .



      Attorneys the duty of representing the State
      in all cases in the district and inferior courts,
      with the right in the Legislature to regulate by
      law the respective duties of district and county
      attorneys where a county Is Included In a district
      having a district attorney; and by Section 22 of
      Article 4 that duty as to suits and pleas In the
      Supreme Court is confided to the Attorney-General.
      With the llmltatlon existing In the authority of
      the Legislature, under Section 22 of Article 4,
      to create ad.ditionalcauses of action in favor
      of the State and lntrust their prosecution,
      whether In the trial or In the appellate courts,
      solely to the Attorney-General, the powers thus
      conferred by the Constitution upon these officials
      are exclusive. The Legislature cannot devolve
      them upon others, nor can It Interfere with the
      rl ht to exercise them   Brady v. Brooks, 99 Tex.
      368, 89 S.W. 1052; Harris County v Stewart, 91
      Tex. 133, 41 S.W. 650; State v. International &
      Great Northern Railroad Co.. 89 Tex. 562, 35 S.W.




          Subsequent to the case of Maud v. Terrell, supra,
there has been considerable litigation over whether the county
and district attorneys or the Attorney General would represent
the State in various DPOCeedimS    in the trial or aupellate COUrtS.
Staples v. State ex r'elKin     ii2 Tex. 61, 245 s.w‘.m639 (1922);
Allen v. Fisher, 118 Tex. 3     9 S.W.W 731 (1928);.State ex rel
Downs v. Harvey, 164 S.W.2d 55 (Tex.Clv.App. 1942, writ ref
w.0.m.); State ex rel Hancock v. Ennls, 195 S.W.2d 151 (Tex:Civ.
App. 1946, writ    f         I-Stt    B oard of Dental Examiners
v. Blckham, 203 ~"W:2~'~~~'(~ex.~i~.App. 1947        h)   St
Walker-Texas Investment Co., 325 S.W.2d 209 (T:x:CI;.~p.$$$'!$+



                          -3752-
Hon. Criss Cole, page 4 (C-782)


affm'd in Smith v. State, 160 Tex. 256, 328 S.W.2d 294 (1959).
       _
          An analysis of the above quoted cases, which construe
the applicable constitutional provisions, leads us to the con-
clusion that the legislature has.the power and may authorize a
state agency to retain its own legal counsel. However, the
legislature cannot authorize a state agency to retain legal
counsel to represent the agency In the courts since the Con-
stitution places this duty upon the county and distrlc,tat-
torneys or the Attorney General.
          To state it another way, It Is our opinion that
the legislature may authorize a state agency to have its own
nhouse counseln but the Constitution prescribes that the
county and district attorneys or the Attorney General shall
represent the state (agencies) In the courts.
                      SUMMARY
          The Legislature may provide that a state
     agency retain its own legal counsel. However,
     the Legislature cannot authorize a state agency's
     legal counsel to represent the agency In court,
     since the Constitution places this duty upon
     the county and district attorneys or the Attorney
     General. Art. IV, Sec. 22 and Art. V, Sec. 21,
     Tex. Const.
                              Yours very truly,
                              WAGGONER CARR
                              Attorney General



JCMcC:sck:mkh
APPROVED:
                                      Assistant
                                                  “I.
OPINION COMMITTEE
W. 0. Shultz, Chairman
John Reeves
Harold Kennedy
Pat Bailey
Ralph Rash
APPROVED FOR THE ATTORNEY GENERAL
BY: T. B. Wright


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