                     The .Attorney General of Texas
                                             May 25,    1979

9RK WHITE
torney General


                 Honorable Chet Brooks, Chairmen            Opinion No. W-24
                 Senate Committee on Human Resources
                 Senate Chamber                             Re: Constitutionality of legisla-
                 Austin, Texas 78711                        tion to permit the Department of
                                                            Human Resources to represent the
                                                            state in court in child support
                                                            collection cases

                 Dear Senator Brooks:

                        You have asked whether e stnff attorney employed by the Department
                 of Human Resources may constitutionaLly be given the statutory authority to
                 represent the department in litigation seeking child support collection. The
                 bill, Senate Bill 698, e introduced, would provide:

                            Attorneys employed by the Texas Department             of
                            Human Resources may represent the department in
                            any suit to collect      child support or determine
                            paternity brought under the authority of [art. 695c,
                            S 18-B, V.T.C.S.]:    At the request of the Texas
                            Department     -of Human Resources,      the Attorney
                            General shall represent the department in any appeal
                            of a suit brought under the authority of this section.

                      The legislation   would also amend section     ll.20 of the Texas Family
                 Code and provide:

                            At the request of the Texas Department of Human
                            Resources, the county or district attorney of the
                            county in which the suit is filed or transferred or the
                            attorney general shell represent the department       in
                            any suit brought under Subtitles A and C of this title
                            [of the Family Code1 .

                       A constitutional   question has arisen in light of provisions of the Texas
                 Constitution.   Article 4, section 22 provides:
Honorable Chct Brooks      -   Page: Two    (rlI+-24)



               Sec. 22. ‘l’hr! Allorncy Gcwerol . . . shall represent the State in ~11
            suits and plc~s in the. Supreme Court of the Stale in which the
            Stnte may hr a p~~rty, nnd ~11~111   espccinlly inquire into the charter
            rights of aII privrlte corportitions, and from lime to lime, in the
            no&e of lh? SlsLe. take stlch action in the courts as may be proper
            nnci ncccsstlry 10 prcvenl !my private corporation from exercising
            any power or denmnding or collecting eny Species Of taxes, tolls,
            freight or wharfage not authorized by law. He shell. whenever
            sufficient cause exists, seek A judicial forfeiture of such charters,
            unles otherwise expressly directed by law, and give legal advice in
            writing to the Governor and other executive Officers, when
            requested by them, and perform such other duties es may be
            required by law. . . . (As emended Nov. 2, 1954, end Nov. 7, 1972.)

(Emphasis added). Article 5, section 21 provides:

              sec. 21. . . . The County Attorneys shell represent the Slate in all
            cases in the District end inferior courts in their respective
            counties; but if any county shall be included in e district in which
            there shell be a District Attorney, the respective duties of District
            Attorneys and County Attorneys shell in such counties be regulated
            by the Legislature.. . .

The conclusion drawn from a long history on cese law indicates that the above officials
alone have the constitutional authority to rcprcsenl the state. Hill V. Texas Water Quality
Board, 568 S.W.Zd 738 (Tex. Civ. App. - Austin 1978, writ t%zf’dn.r.e.); Brady v. Brooks,
89 S.W. 1052 (Tex. 1905); Agey v. American Liberty Pipeline Co., 172.S.W.2d 972 (Tex.
1943); Ademson v. Connally, 112 S.W.2d, 287 (Tex. Civ. App. - Eastland 1937,~no writ);
Allen v. Fisher, 9 S.W.2d 731 (Tex. 1928); Hancock v. Em& 195 S.W.2d 151 (Tex. Civ. App.
    San Antonio 1946, writ ref’d n.r.e.); Attorney General Opinion M-856 (1971). However,
this construction of the constitution does not require the Attorney General, district or
counly’ettorney,   or authorized %wistnnts, always to sign court papers as attorney of
record and actually litigate the suit in court.

       The catitution    gives the Attorney General authority to represent the department.
He cannot constitutionally be deprived of his authority to control the litigation. See State
v. Moore, 57 Tex. 307 (1882). So long as the Attorney General has continuing authority
intervene and control the lawsuit, the proposed legislation is constitutional.          Meud v.
Terrell, 200 S.W. 375 (Tex. 1918); Chnrles Scribner’s Sons v. Merrs, 262 S.W. 722(Tex.
1924);Genernl Appropriations Act, Acts 1977, 65th Leg., ch. 872 et 2777. Representation
by the department’s staff attorneys would be construed to be with the implicit consent of
the Attorney General. .See V.T.C.S. nrt. 895c, SS 18-B(b)(3), (e); General Appropriations
 Act, Acts 1977, 65th Legzh.     872, art. V, S 41, et 3160 (co+~rt representetive of the state)
and S 42, et 3161 (permitting outside counsel); Taylor v. Texas Department of Public
Welfare, 549 S.W.2d 422 (Tex. Civ. App. - Fort Worth 1977, writ ref’d n.r.e.) (untimely
objection that representation     by department attorney violated article V, section 21);




                                            p.   74
Honorable Chet Brooks     -   Page Three     (IQ+24)



Postell v. Texas Department of Public Welfare, 549 S.W.Zd 425 (Tex. Civ. App.            Fort
Worlh 1977, writ ref’d n.r.e.); cf. Collins v. State, 506 S.W.2d 293 (Tex. Civ. App.     San
Antonio 1973, no writ); Attorneaeneral     Opinion M-249 (1968).

     The court in Maud v. Terre11 upheld a statute which permitted the Comptroller         to
employ a person to handle suits for state inheritance taxes. The court said:

            The test, therefore, to be used in determining the validity of this
            Act is simply whether by plain and unambiguous language it
            deprives ‘the county attorneys. . . of their authority to prosequte in
            the courts suits by the State for the recovery of inheritance taxes.

            . . . .

           [The provisions of the statute] do not unequivocally supplant the
           county attorneys . . . in their authority to prosecute the suits of the
           State for the recovery of the taxes. . . .

Id. at 376-377. The court went on to say that the statute in question did not “exclude the
=a. that [prosecution of the law suit] shall be in subordination to the authority of ,the
county attorney.” E at 377. See also Attorney General Opinion M-866 (1971). We feel
the court’s reasoning to be equally applicable here.

       The constitutional authority of the Attorney General to represent the state cannot
be diminished by the proposed legislation.    The committee substitute indicates that the
Act is not to be interpreted to limit the authority of the Attorney General to represent
the state in any proceeding.         Accordingly, we believe the proposed statute           is
constitutional.   Our decision makes it winecessary to discuss the concurrent authority of
county or district attorneys to represent the state in district or inferior courts.      See
Magnolia Petroleum Co. v. State, 190 S.W.2d 581 (Tex. Civ. App. - Austin 1945, no wrq
State Board of Dental Examiners v. Bickham, 203 S.W.2d 563 (Tex. Civ. App. - Dallas
1947, no writ); Garcia v. Laughlin, ~285 S.W.2d 191.(Tex. 1955); Moore v. Bell, 66 S.W. 45
(Tex. 1902); State v. Moore, =a;     Sheppard v. Alaniz, 303 S.W.2d 846 (Tex. Civ. App.
San Antonio1957,m;            State v. Walker-Texas Investment Co., 325, S.W.2d 209 (Tex.
Civ. App. - San Antonio),-                                            (Tex. 1959); Attorney
General Opinion H-343 (1974).

      Attorney General Opinion      C-782    (1966) Is overruled   to the extent that    it Is
inconsistent with this opinion.

                                      SUMMARY

           Staff attorneys for the Department of Human Resources may
           constitutionally  represent the department   in court subject to
           supervisory control of the Attorney General.




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Honorable Chet Brooks    -    Page Four   (NW-24 )




                                             MARK     WHITE
                                             Attorney General of Texas

JOHN W. FAINTER, JR.
First Asaistnnt Attorney General

TED L. HARTLEY
Executive Assistant Attorney General

Prepared by David B. Brooks
Assistant Attorney General

APPRPVED:
OPINION COMMITTEE

C. Robert Heath, Chairman
David B. Brooks
Susan Garrison
Rick Gilpin
William G Reid
David Young
Bruce Youngblood




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