                                  September     22,    1987




Mr. William M. Hale                                      Opinion    No.    JM-791
Executive   Director
Texas Comission       on Human Rights                    Re:   Authority of the Attorney
P. 0. Box 13493                                          General to represent  the Texas
Austin,   Texas      78711                               Commission on Human Rights

Dear Mr. Hale:

        You request    an opinion    on the authority      of the attorney    general
to represent     the Texas Commission on Euman Rights in litigation              under
article    5221k,    V.T.C.S.,    the Commission     on &man Rights      Act.     This
statute    was enacted      to implement federal      policies   against   employment
discrimination      embodied in title       VII of the Civil   Rights Act of 1964,
42 U.S.C.    §ZOOOe et seq.;       V.T.C.S.    art. 5221k. 91.02(l).

       The commission        consists     of six members appointed            by the governor
with the advice           and consent        of   the senate.        V.T.C.S.       art.    5221k,
03.01(a).        The commission         has authority         to meet and exercise              its
powers anywhere within             the state,       except    in a political         subdivision
which has created           a local     commission      of human relations          pursuant      to
sections      4.01    through    4.04 of article          5221k, V.T.C.S.          See Attorney
General      Opinion       Nos.   JM-275.       JM-228     (1984)     (local      human rights
commissions).           The commission          may "receive,        investigate,        seek     to
conciliate,        and   pass   on    complaints      alleging     violations       of   [article
5221k, V.T.C.S.],          and file    civil    actions    to effectuate       the purposes       of
this    Act."       V.T.C.S.    art.     5221k,     §3.02(6);     sea also       V.T.C.S.      art.
5221k. 57.01(a)         (commission's       power to bring civil         action).

      The comrrission    is a state   agency with authority     to bring     civil
suits    to carry   out    the purposes    of article   5221k,   V.T.C.S.       The
Commission    on Human Rights     Act does not expressly       state    that    the
attorney   general  shall represent     the commission.   It provides    that the
cormnission has power

              to employ an executive          director     and authorize    the
              employment      of    other     staff     members,    including
              any necessary       attorneys        or   clerks    and    other
              representatives         or    agents,      and   to    fix    the
              compensation       of      the     executive     director       or
              other staff     members,      representatives,      or agents.
               (Emphasis added.)




                                               p.     3741
Mr. William      M. Hale - Page        2    (JM-791)




V.T.C.S.     art.    5221k,    §3.02(3).   Prior     opinions     have determined      that
similar     provisions      do not limit    the constitutional         authority   of the
attorney      general     to represent    the state       in court,      and that    staff
attorneys      of a state agency may appear in court for the agency only in
subordination        to the authority       of   the attorney       general.     Attorney
General Opinion MW-24 (1979) ; see also Attorney                  General Opinion     Nos.
JM-28     (1983);      H-268    (1974);  C-782     (1966)     (overruled      in part    by
Attorney     General Opinion MW-24).

       The courts  have interpreted    the constitution      to confer    upon the
attorney   general   and the county    or district     attorney    the exclusive
authority   to represent   the state.   Maud v. Terrell,      200 S.W. 375 (Tex.
1918).    Article  IV, section   22, of the Texas Constitution        provides   in
part:

                  The Attorney         General      . . . &all         represent     the
              State in all suits            and pleas in the Supreme Court
              of the State          in which thm      e State may be a party,
              and shall         esueciallv         inouire      into     the charter
              rights    of all private           corporations,        and from time
              to time,        in the name of              the State,        take such
              action      in     the     courts      as may be            proper     and
              necessary       to prevent       any private         corporation     from
              exercising        any power or demanding or collecting
              any species         of taxes,       tolls,     freight      or wharfage
              not     authorized         by     law.       He     shall,      whenever
              sufficient        cause      exists,       seek     a judicial       for-
              feiture        of      such     charters,         unless       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           as may be required            by law. . . .
               (Emphasis added.)

       Article    4395,    V.T.C.S.,       provides     that

              [t]he Attorney      General shall           prosecute     and defend
              all   actions    in the Supreme             Court or the Courts
              of Civil      Appeals    in which            the    State    may be
              interested.




        1.    This provision    has been recodified     as section 402.021 of the
Government Code, which became effective           September 1, 1987.    Acts 1987,
70th    Leg.,     ch.    147.  501,   8, at  648,     1064.    The recodification
substitutes      “courts    of appeals”  for “Courts     of Civil  Appeals.”      -Id.
41, at 648, 659.




                                              p.   3742
Mr. William         M. Hale - Page 3        (JM-791)




        Article       V,   section    21,   of    the   Texas   Constitution      provides      in
part:

                  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.

       Texas    courts     have   held    that   the  powers   conferred    by these
constitutional      provisions      on the ~attorney   general   and the county     or
district     attorney     are exclusive,       and that the legislature       may not
confer    them on others       or interfere     with the right    to exercise    them.
Maud V. Terrell,       m;        Hill County v. Sheppard,      178 S.W.Zd 261 (Tex.
1943);    Brady v. Brooks,       89 S.W. 1052 (Tex.     1905);   State v. Moore,    57
Tex. 307 (1882).

       Article   V, section     21 places    on the county attorney     the duty to
represent      the  state     in    district    and   inferior  courts,    but  the
legislature     has authority     under article    IV, section 22

                  to create    additional  causes of action       in favor of
                  the State and intrust      their   prosecution,      whether
                  in the trial    or in the appellate    courts,    solely   to
                  the Attorney    General.

Maud v. Terrell,         200 S.W. at 376;            State v. Walker-Texas          Investment
co..    325  S.W.Zd    209  (Tex.    Civ.   App.    -  San  Antonio),     writ   ref'd    n.r.e.
per     curiam    sub nom. Smith v.             State,    328 S.W.Zd       294 (Tex.        1959)
 (relying     on and explaining          quoted     language     from Maud v. Terrell).
Thus,     even though article          IV, section        22 expressly       refers     only     to
suits     and pleas-in      the supreme court,           this   constitutional        provision
authorizes        the    legislature         to     extend     the     attorney       general's
representation        of the state        to the lower        courts.       The opinions         in
 State v. Walker-Texas          Investment      Co., w,         discuss     this legislative
 authority     under article      IV, section      22.

       In Walker-Texas       Investment     Co., the attorney      general  brought    suit
in district       court  to enjoin      defendant     company from charging      usurious
interest.       He acted      under    the express       authority    of former    article
4646b,     V.T.C.S.,    Acts 1943, 48th Leg.,           ch. 144. at 228.       Defendants
contended     that the attorney       general     could not bring the suit on behalf
of the state without          the joinder       of the district      or county   attorney
and that       article    4646b.    V.T.C.S..       was unconstitutional      because      it
conflicted      with article     V, section      21, of the constitution.       The court
of civil       appeals   discussed       case    law in detail      and concluded       that




                                                 p.   3743
     Mr. William       M. Hale - Page 4             (m-791)




     article      4646b,    V.T.C.S.,           was     constitutional.              In    enacting         that
     statute,     the legislature

                    created    a cause of action       in favor   of the State
                    and authorized      the Attorney     General   to bring  and
                    prosecute     such   an action      in  the  district    and
                    inferior    courts    without    the necessity     of being
                    joined    by either    the District    or County Attorney
                    of the county in which the suit is filed.

     State  v. Walker-Texas   Investment    Co.,   325 S.W.Zd    at 212-13.        The
     supreme court refused  the application    for writ of error,     no reversible
     error,  in a per curiam opinion   which included   the following    statement:

                        Under the holding        of this     Court    in Maud v.
                    Terrell,    109 Tex. 97, 200 S.W. 375,           it is clear
                    that     when    the  Legislature      creates     a new or
                    additional     cause of action      in favor    of the State
                    it     may    also   constitutionally        authorize    the
                    Attorney    General to prosecute      such cause of action
                    in both     the trial     and appellate       courts   of the
                    State.

     Smith v.      State,     328 S.W.2d       294,    295 (Tex.      1959).

             The Texas Constitution                places     in the attorney            general         and the
     district       or county         attorney        the exclusive         power to represent                 the
     state.       Article       5221k,       V.T.C.S..       would    be unconstitutional                  if    it
     allowed       any     other       attorney        to    represent       the      state,       except        in
     subordination            to      the       attorney        designated          by       the        relevant
     constitutional          provision.         We assume that the legislature                    intended       to
     enact     a constitutional              statute.        See Gov't        Code 1311.021(l).                  We
     therefore         must read          article       5221k.     V.T.C.S.,        together         with       the
     constitutional           provisions          we have       discussed.          In article             5221k,
     V.T.C.S.,       the legislature           has created       a new cause of action               which may
     be brought         in district          court     by the attorney           general        or by other
     attorneys         subject      to     his     supervision       and control.               See Maud v.
     Terrell.      supra;      State      v. Walker-Texas          Investment        Co.,     E.             Since
     article      5221k is administered               by a state      agency,
                                                                        -           and    since      the    cause
     of action        it creates        is a matter of statewide                concern,        the attorney
     general      and not the district                 or county     attorney        is the appropriate
     officer      to represent         the commission          in civil      actions.         See generally
     Brady     v.      Brooks,       89 S.W.         1052     (Tex.    1905)       (legislature,             under
     constitutional          authority       to assign attorney           general     additional          duties,
     may authorize           him to sue for              delinquent       gross     receipts         taxes      and
     penalties       in district         court);      Hill V. Texas Water Quality                   Board, 568
     S.W.Zd 738 (Tex. Civ. App. - Austin 1978, writ ref'd                               n.r.e.)        (attorney
      general      has      the    exclusive         right      and power         to     represent           state
_.   agencies);         Shepperd v. Alanis,              303 S.W.Zd 846 (Tex.             Civ. App. - San




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Mr. Willian     kl. Eale    - Page      5    (JM-791)




Antonio     1957,   no writ)       (it   is principal      function    of district        and
county attorneys       to prosecute       the violations     of criminal      law);    State
v. Barney.      164 S.W.Zd 55 (Tex.           Civ. App. - San Antonio           1942, writ
ref d w.0.a.)      (purely    local    action    to remove sheriff     should have been
brought by district        or county attorney , not attorney          general)     (holding
approved     in Garcia     v. Laughlin,         285 S.W.Zd 191 (Tex.        1955)).       Any
staff    attorney    or outside        attorney     employed by the commission            may
represent     the commission       in court only subject        to the supervision        and
direction     of the attorney       general.

                                            SUMMARY

                      The    attorney       general     has    authority     to
              represent     the Texas Commission on Human Rights             in
              litigation       under     article     5221k,    V.T.C.S.    Any
              staff    attorney     or other     attorney    employed by the
              connnission     may represent       the commission      in court
              only subject       to the supervision         and direction    of
              the attorney      general.




                                                         JIM      MATTOX
                                                         Attorney  General   of   Texas

MARYKKLLER
Executive Assistant          Attorney       General

JUUGE ZOLLIE STEAKLEY
Special Assistant Attorney              General

RICK GILPIN
Chairman, Opinion          Cormaittee

Prepared      by Susan L. Garrison
Assistant      Attorney General




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