                               December   31,    1990



Honorable  Mike Driscoll               Opinion    No.   JW-1281
Harris County Attorney
1001 Preston, Suite 634                Re:     Whether a commissioners
Houston,  Texas  77002                 court may    appoint a    licensed
                                       attorney to advise the sheriff
                                       or an individual     commissioner
                                       (RQ-1774)

Dear   Mr.    Driscoll:

      You have       requested   our opinion  as   to  whether         the
commissioners       court of Harris County is authorized   to

             create a position to be filled by a          licensed
             attorney to be     appointed   or   employed.by     an
             individual   member of the commissioners        court
             or the   sheriff     for the   purpose    of   giving
             legal advice     to the   individual   member,     the
             commissioners    court and/or the sheriff        about
             their respective    official powers and duties.

You suggest in   the brief submitted    with your request    that
the creation   by the   Harris County   Commissioners  Court   of
such attorney positions     constitutes an unlawful   usurpation
of the powers and duties of the Harris County Attorney.

      Section 151.001 of the       Local Government     Code     provides
that district,    county,    or precinct    officers    must apply       to
the commissioners     court for    authority    to appoint     deputies,
assistants,   or clerks.      In counties like Harris County, with
a population    over   190,000, such officials        must also      apply
for authority     to appoint     "any other     kinds of    employees."
Section 151.002 provides that the commissioners            court     shall
make such authorizations       by order.    However, where a county
official   is vested    by the constitution       or the     legislature
with exclusive    authority    to perform a duty, the        commission-
ers may not employ, or authorize        the employment     of,    another
person to perform such duties.         See, e.a.     Cameron County v.
pivera, 761 S.W.2d 517 (Tex. App. - Corpu; Christi 1988,                 no
writ) (commissioners      court's creation of position        of    secre-
tary to    court   with    duty   of   transcribing      court    minutes
improperly   interfered    with the statutory     duty of the       county
clerk to "record" the court's proceedings).



                                       P. 6876
Honorable     Mike      Driscoll    - Page    2     (JM-1281)




      Article V,    section    21,            of     the     Texas     Constitution,
provides   in pertinent   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.

      The office   of county    attorney   for  Harris County    was
created in 1953, when      the legislature   abolished   the  office
of Harris County Criminal District Attorney.         Acts 1953, 53d
Leg., chs. 315,     316, at   784, 786.    The  provisions   of  the
1953 enactment   detailing   the powers and duties of the Harris
County Attorney   are now codified     as section 45.201     of  the
Government  Code, which provides     in relevant part:

                It is the     primary    duty   of   the   county
            attorney  in Harris     County or his     assistants
            to represent    the state,     Harris County,      and
            the officials   of Harris     County in all      civil
            matters pending before       the courts of     Harris
            County and    any   other courts      in which     the
            state, the county,      or the    officials   of   the
            county have matters pending.

      Section 81.023            of  the Local Government   Code, by              con-
trast, applies only             to certain counties.   It provides:

                (a) The commissioners   court  of a county
            with a population   of more   than 500,000 may
            employ an attorney as special counsel.

                  (b)    The    special   counsel      may    be     employed
            to:                                                                         .

                      (1)      represent  the      county   in any       suit
                  brought      by or against       the county:

                      (2) prepare    necessary    documents     and
                  otherwise  assist    the  court,    the   county
                  engineer,  and   other county    employees     in
                  the acquisition   of   rights-of-way    for   the
                  county and for state highways:      or

                      (3) represent        the  county   in  condem-
                  nation proceedings        for the acquisition    of



                                             P. 6877
Honorable     Mike   Driscoll   - Page    3   (JW-1281)




               rights-of-way   for   highways    and     other
               purposes   for which  the   county    has   the
               right of eminent domain.

                (c) The county attorney shall select       the
            special counsel.   If the county does not have
            a county attorney,   the district attorney      or
            criminal district attorney    shall select     the
            special counsel.   The selecting   officer shall
            determine the terms   and duration   of   employ-
            ment of the special   counsel, subject to      the
            court's approval.

Finally, section 41.007 of   the Government               Code,   applicable
to all county attorneys, provides:

            A district or county attorney,    pn   reouest,
         shall give to a county or precinct    official   of
         his district or   county a written opinion       or
         written advice relating to the official duties
         of that official.    (Emphasis added.)

       In Driscoll v. Harris Countv Comm'rs Court, 688           S.W.Zd
 569 ITex. ADD.      -. Houston    rl4th Dist.1   1984,   writ    ref'd
 n.r.i.), thycourt      considered   the interaction   of the    provi-
 sions of    article 2372p,     V.T.C.S.,   now codified     as   Local
 Government     Code   section   81.023,   with   those   of    article
.6795b-1, authorizing     certain counties to construct,      operate,
 and maintain inter alia a Hturnpike,       highway,   or any    combi-
 nation of such facilities."        Section 5 of the latter article
 orovided   for   the   creation of    a board to    manaae     such    a
 project and authorized      the board

            to design the      project, to acquire      necessary
            lands or rights-of-way       or other property      for
            the project     by   purchase,     condemnation,     or
            otherwise    . . . and    to   employ    consultants,
            attorneys,     engineers,     financial     advisors,
            agents and other employees        or contractors     in
            connection    with   the    development,     construc-
            tion,    operation      and   management      of    the
            project.

Id. at 575.  The majority opinion gave the following                  summary
of the events which gave rise to the litigation:

            [T]he   commissioners     court   designated      the
            members of    the   commissioners   court    as   the
            operating  board of the authority      and   further
            authorized     the    preparation      and      legal



                                         p. 6878
Honorable     Mike   Driscoll   - Page    4   (JR-1281)




            documentation      for    the issuance of           fifty
            million dollars       in toll      road revenue        and
            unlimited    tax bonds.      In connection     with    the
            issuance of these        bonds the operating        board
            engaged the law       firm of Vinson       L Elkins     to
            serve as counsel.        On   November    8, 1983,     the
            operating    board entered an order engaging the
            law firm of Fulbright         C Jaworski    as    special
            counsel for      the   Toll Road      Authority.       The
            Harris    County     Attorney      objected     to     the
            employment    of special      counsel, and informed
            the commissioners      court     that his office       was
            capable of doing all         the work in      connection
            with the     acquisition     of   the   rights-of-way,
            and    other   related       matters.      He     further
            informed commissioners        court that the employ-
            ment of private       attorneys    without the      input
            of his office was contrary to law Andy should
            they    persist,     legal    action    would     result.
            They persisted,      and    consequently    the    county
            attorney,    in his      official     capacity,     filed
            this lawsuit against commissioners            court, all
            the members thereof, the county auditor,               the
            county    treasurer,        Vinson    &    Elkins      and
            Fulbright    & Jaworski.

&    at 577.

      The trial court denied the Harris County Attorney,               the
plaintiff  in that case, all       relief sought.        On appeal,    the
court of   appeals,   in a per       curia    opinion,     reversed    and
remanded the case.     On motion for rehearing,          the per    curiam
opinion was reissued by the majority,          with two other justic-
es concurring    in   the    result and     three     dissenting.      The
majority  and concurring      opinions held       that appointment       of
attorneys  pursuant     to   article     6795b-1     for   work   on   the
turnpike project must       be made    in compliance       with the     re-
quirement  of   article     2372~.     Article     2372~    stated    that
special counsel must       be named    by the     county attorney       and
that such employment     must be on terms "deemed proper" by the
county attorney,    as approved by the commissioners           court.

                Roth statutes speak      to the same    subject,
            namely, the employment       of counsel to     repre-
            sent   the   county    in the    acquisition,       by
            condemnation   or    otherwise,  of   rights-of-way
            for   the    construction     of    county     roads.
            Artidle 2372p, however,      is a specific   statute
            insofar as it     limits the outright      authority
            to hire such     counsel   (in counties having       a



                                         p. 6879
Honorable     Mike   Driscoll   - Page   5   (JM-1281)




            population  in   excess    of  500,000)     if   such
            county is represented      by a county     attorney,
            district   attorney     or    criminal      district
            attorney.  . . . We must give effect to          this
            plain wording    of   the   statute    and,    unless
            there is a conflict between the two statutes,
            give effect to both.      The trial court did not
            expressly  find a conflict:    neither     appellant
            nor appellees    contend there      is a   conflict,
            and we find there is no conflict.

&   at 581.

      In priscoll,     the firms involved were employed to assist
the turnpike authority       in its   issuance of bonds and to     act
as *'special counsel"      in the acquisition   of rights-of-way   and
other matters.      It has been suggested     that a distinction   may
be made between an attorney's       duty to renrese t a client and
his duty to     advise a client,     and that only nthe former       is
prohibited   by    the   terms of   section    81.023 of   the   Local
Government   Code.     That   view was   rejected by    the court    in
DriscoU   :

        It is a simple matter to harmonize    the  provi-
        sions of the two acts, at least as they      apply
        to Harris County:   the commissioners   court    is
        authorized to employ   attorneys,   but in   order
        to do so, it must comply with the restrictions
        of Article 2372~ [now section 81.0231.

&   at 582.

      Accordingly,    the court of appeals specifically        rejected
the   trial    court's   conclusion     that   emnl vm   t   of    legal
counsel by the Harris County        Toll Road AutEorzEy     "does    not
constitute   an usurpation    of the powers and public duties         of
the office of the County Attorney of Harris County, Texas in
contravention    of the Constitution     and    laws of the State      of
Texas."    Id.   The   court did not     recognize   any   distinction
between representation      and advice,     and, in our opinion,      no
reasonable   distinction    can be made.

      We believe that the thrust of article V, section 21, of
the Texas Constitution,    which requires a county attorney        to
"represent   the State   in all cases,"    section 45.201 of      the
Government   Code, which declares   it to be the "primary      duty"
of the Harris County attorney     "to represent   the State,"     and
section 41.007    of the   Government   Code, which     requires     a
county attorney,   on request,    to "give to    a county or     pre-
cinct official of his district      or county a written      opinion




                                         P. 6880
Honorable   Mike   Driscoll   - Page   6   (JM-1281)




or written advice," taken together,       is to compel the various
officials  of   Harris   County to    obtain   representation      and
advice in all legal matters      from the Harris County attorney,
and him   alone, absent     the exceptions    provided  by    section
81.023 of the Local Government       Code.   The law in this      area
was well   developed   long   before   the enactment    of    section
81.023.

      Prior to the enactment         of section 81.023, it was          held
that a    commissioners      court    could not     appoint     or   employ
private attorneys      to perform the regular duties of            district
and county attorneys.        If the duties of these officers            were
statutorily    imposed, the commissioners         court was     restricted
to the   employment      of   attorneys Lo      assist     the   regularly
constituted    officers of the       county.      errell     . Green
S.W. 631 (Tex. 1895); w              v. Seaale:, 250 S‘lW. 413 ';Te:f
1923);     se      alsQ     Attorney      General      Opinions        C-256
(1964),V-1:77     (1951),    O-7474 (1946).        Section 81.023       does
not alter prior law       in this regard,       but rather adopts        and
confirms these principles.

      In Jones v. Velt.Jk@      171 S.W. 287 (Tex. Civ. App. - San
Antonio   1914,   writ    ref:d),   the   court    of   civil   appeals
construed   the    county attorneyjs     statutory    duty   to   advise
county officials     to be   all inclusive.     The court     concluded
that there could be       no county matter     which would not      fall
within the     contemplation    or  definition     of such    duty    and
stated at page 290:

        The   facts   clearly       indicate     a    determined
        purpose upon     the part     of the     commissioners'
        court to evade      and thwart     the provisions       of
        article 5, 5 .21, of      the Constitution       and   the
        statutes of     the   state.      The   very     services
        enumerated   in    the order     as to     advice to    be
        given by    the county      attorney to      the   county
        judge and commissioners'        court as provided      for
        in article    356a     [now   Gov*t    Code     5 41.007,
        imposing a duty to       give an opinion or        advice
        in writing to any county or precinct officer].
        It was as much the dutv of the countv attorney
        to advise the countv iudae and           commissioners'
        GGD&   in   regard    to    properly    preparing      and
        issuing the     road bonds      as in    regard to     any
        other matter in which the county was interest-
        ed, and    it was    his dutv     to advise      them   in
        aaard    to all countv matters.        There could      be
        no   countv   m tters     about    which     advice    was
        reouired    that     was    'not     contemvlated       or




                                       P. 6881
Honorable   Mike   Driscoll   - Page    7   (JM-1281)




         overed     bv  his  offgcial  duties   as         county
        gttorne;    . . . .I* (Emphasis added).

The Harris County Attorney has         both the statutory     duty    and
authority   to   advise and    represent     Harris County     and    its
departments    and officials   in all civil legal matters and the
commissioners    court has    no authority    to   usurp such     powers
and duties and delegate      same   to another person by       contract
or otherwise.     See also Cameron Countv, a,              (commission-
ers court    improperly     interfered   with    the   county    clerk's
exclusive   statutory   duty   to transcribe     the   minutes of     the
commissioners    court by creating the position        of Secretary    of
Cameron County     Commissioners    Court    and appointing      another
person to    perform    this duty):     Attorney     General   Opinions
JM-1025   (1989); JM-833    (1987).

      Furthermore,    section    41.007    of   the    Government     Code
expressly   provides    that the    district and       county    attorney
will advise     the county    and    its officials,       including    the
members of    the commissioners       court and     the Harris      County
Sheriff.    The proviso "on      reguest,"    serves only to      protect
district and county attorneys        from being considered       derelict
in their duty to advise       if public officials       fail or     refuse
to request assistance.       Just as a court has no duty to           pass
upon a petition until some request or other contingency                has
occurred,   the commissioners     court may not suspend a portion
of the duties required by law to be performed            by an    elected
legal officer     by   simply    refusing to      request    advice    the
commissioners    court deems necessary.

     In 1973, the Attorney  General considered the               applica-
tion of  these principles  and in Attorney General                Opinion
LA-24 (1973), he declared as follows:

            The Constitution,      Article     5,    Section     18
        speaks to the     matter of     county and      district
        attorneys   representing      the interests       of   the
        State,    not   the   County,     in matters       before
        district   and county courts.       In the absence of
        a statute      commanding     it,   or    an   agreement
        between    him   and    the    commissioners         court
        calling for it, a county or district             attorney
        has no obligation      or right     to defend      county
        interests   in court, and the county may           employ
        private counsel to      protect such interests          to
        the exclusion    of such legal officers.

            The Legislature  may,    however,   assign   such
        legal officers    additional     duties   consistent
        with their constitutional      duties.    mere    the



                                       P. 6882
Honorable   Mike        Driscoll   - Page    8   (J&1281)




                       has    done    so.  the    c-
        court. a     suborute       bodv.    cv
        with the discmae         of such duties; and       unless
        the Legislature      has   specified    otherwise,     any
        private     attorneys     employed    by   the     county
        commissioners     in connection    therewith    may    act
        only    under    the   direction     of   the   officer.
        (Emphasis added.)

      Section 81.023 of the       Local Government   Code,   provides
the only vehicle      for the employment     of special counsel     by
the commissioners     court under certain limited      circumstances
and the    provisions     therein do   not   apply to    the  instant
situation.

      It has been    consistently   held   that the    commissioners
court is not authorized     to interfere with the county        attor-
ney's general statutory     duty to advise and represent        county
and precinct    officers.    In Terrell,                 SYBEB,     the
supreme court    held that     the  Tarrant County     Attorney    was
entitled to a writ of      mandamus  commanding   a district     judge
to permit him to appear as county attorney        in a cause     filed
by the   county through     private counsel     against the     county
treasurer.    The court stated:

            There   is no dispute as to the right of           Ben
        M. Terre11    to    exercise all     of the    functions
        which, by law, pertain to the office of county
        attorney of Tarrant county [sic]. . . . We do
        not undertake     to say     that the county     commis-
        sioners' court might not,          in the exercise      of
        its authority,      direct the institution      of   such
        suit: indeed, we think that such would             neces-
        sarily arise out        of other    powers granted      to
        the   court,     but    that   authoritv    would      not
        necessarilv    authorize     the commissioners      court
        to diSDlaCS      an   officer whose      dutv   in   such
        matters    is orescribed     bv status.

            .   .   .    .

            The fact that     the suit had     been filed      by
        other counsel employed       by the    county, in      no
        wise relieved the county attorney of his            duty
        to prosecute    this suit, nor did it deprive him
        of his privilege     to discharge   that duty. . . .
        While the    commissioners'    court     might    employ
        counsel to assist the       county attorney     in   the
        performance   of    this  duty,   it     had   not    the
        puthoritv   under the law     to diSDlaCS     him   from



                                            p.6883
Honorable    Mike   Driscoll   - Page    9   (Jw-1281)




                                                            er the
         hw   as an    officer    of that    county.     (Emphasis
         added.)

XL at    632-33.

       There is no      authority    for the     commissioners    court    of
 Harris County to create and fund positions             with titles      such
 as "general      counsel,"     "legal counsel,n       "staff    attorney,"
 "legal assistant,"        or "legal    advisor' to      be filled     by    a
 licensed attorney      for the    purpose of advising county          offi-
 cials in connection      with their official duties, and doing so
 clearly constitutes       an illegal     usurpation    of the    statutory
 duties    of    the   county    attorney     of   Harris    County.        In
 Driscoll     m,       the court disapproved       the employment     by the
 commissi&ers      court of     outside law firms       to do the     county
 attorney's    job.    Now the members of the commissioners            court
 are hiring attorneys        for their personal        staffs to     perform
 the identical     legal services.        The commissioners      court    has
 no greater right       or authority      to hire     staff attorneys      to
 perform the county        attorneyJs   duties     than it has to        hire
 outside law firms.         Further, in     the absence      of any    valid
 authority    for the    commissioners     court     to do   so, there      is   .
 similarly    no authority     for the county auditor to approve the
 payment of a salary to such an individual.               In addition,    the
~county auditor has an affirmative          duty to reject a claim         or
 expenditure     of public     funds for any      such illegal     purpose.
 Local Gov*t Code f 113.065.

      It is well-settled      that   the   constitution     does    not
confer on    the commissioners     court general     authority     over
county business,   but gives it only those powers conferred          by
the constitution   or the statutes or necessarily        implied from
those expressly   granted.    Tex. Const. art. V, S 18;        Ganales
V.    ugh.J&, 214 S.W.2d 451      (Tex. 1948);,Anderson     v.   Wood,
152 S.W.Zd 1084 (Tex.      1941) ; Clark v.    Finley, 54 S.W.      343
(Tex. 1899); penfro v. Shronshire,       566 S.W.2d 688 (Tex. Civ.
APP. - Eastland    1978, writ ref'd      n.r.e.): Starr Countv       v.
Guerra, 297 S.W.2d 379 (Tex.       Civ. App. - San Antonio        1956,
no writ).    An  officer having     a statutory   duty    may not    be
displaced   by the exercise of     an implied power by a       commis-
sioners court.    Terre11 v. Greene, w;          Aldrich v.     Dallas
$;IJ;~z; 167 S.W.2d 560 (Tex. Civ. App. - Dallas, 1942,            writ


      As a general rule, public duties must be performed       and
governmental   powers exercised by the   office designated      by
law: such duties and powers may not be delegated    to    others.
Lufkin v.    Galveston, 56 Tex. 522   (1882); Woodv    v.   Texas
Water Comm'n, 373 S.W.2d 793 (Tex. Civ. App. - Austin        1963,



                                        p. 6884
Honorable    Mike   Driscoll   - Page     10    (JM-1281)




writ  ref'd n.r.e.);      Newsom v. w,          451 S.W.2d 948     (Tex.
Civ.  App. - Beaumont      1970, no writ).       It has been    consis-
tently held that the       commissioners    court cannot deprive       an
officer of the      powers, rights, and      duties which inhere       in
his office, nor require him to delegate the same to             another
person seleoted by       it; nor   can it displace      an officer    by
authorizing    another person to     perform duties devolved        upon
him by statute.      Terre11 v. Greene, m;          uich      v. Dal1
Countv,-;           Marcruart                          117 S.W.ld    4::
(Tex. Civ. App.      - Galveston    1938, writ     iism'd); see     al Q
                      114 S.W.2d 860     (Tex. 1938);     --DeWi&
HhLte
 o. v. v'Brazori
           acT'      County    142  S.W.Zd 916 (Tex.      Civ. App.     -
Galveston    1940, writ    r;frd); Strinaer      v. Franklin    County,
123 S.W. 1168 (Tex. Civ. App. 1909, no writ).

      The authority       to choose    the employees      to assist     the
county attorney      in performing     his duties      is vested in     the
county attorney and        not in the     commissioners    court or     the
sheriff.    Gov't     Code S 41.102      -sea.;       Local Gov't      Code
5 151.001 et. sea,        Further, neither the commissioners          court
nor the sheriff       may usurp the      county attorney's     duties    by
attempting    to   assign    them    to persons     under   the    court's
control    or    the   control    of   any    other   county     official.
Section 81.023       of the    Local Government      Code provides      the
only vehicle      for   employment    of   special    counsel,     general
counsel,   legal counsel,       or legal assistants       to assist     the
county attorney under certain limited circumstances.                  Since
the employment     and    appointment    of such    "legal counsel"      by
Commissioner     Radack, the sheriff and other county            officials
do not   comport with       such restrictions,       such    appointments
fail to meet      the statutory     requisites     and are,    therefore,
unauthorized.

      you also ask about the lawfulness   of the    commissioners
court's creation   of a position of     staff counsel     for   the
sheriff to advise that officer     on the powers and duties      of
his office.   A  provision  of chapter   158,  subchapter   B,   of
the Local Government   Code relating to the Sheriff's      Depart-
ment Civil Service System states:

                (b) The sheriff may  designate            as    exempt
            from the civil service system:

                    (1)   the position     of chief   deputy:

                    (2)   four positions       of major   deputy:

                    (3) one    or  more        Dositions   in        the
                     ce of deuartmental        leaal counS&;        and




                                         p. 6885
Honorable    Mike   Driscoll   - Page     11   (JW-1281)




                    (4) additional   positions       in    the   de-
                partment.   (Emphasis added.)

Local   Gov*t    Code   5 158.038.

      In our opinion, this provision      must be read in harmony
with section 81.023, in order       to give effect to both.      The
sheriff    is    authorized  to   "designate"  positions   in    his
department    as   that of  "legal counsel,"    but S,A&ovment    of
individuals    to fill those positions    must be made in   compli-
ance with section 81.023, b,         by the county attorney    with
the approval of the commissioners       court.  See also Grooms v.
Atascosa   County, 32 S.W. 188 (Tex. Civ. App. 1895, no Writ);
Attorney   General Opinion O-7474.

      You also ask whether the county auditor may approve the
payment of a salary to    such individuals   appointed   as   legal
advisors to the sheriff    or commissioners.    Section     113.064
of the Local Government   Code provides that the auditor       must
approve each such    claim before payment    by the county,      and
that the auditor   may require verification     by affidavit      of
such claims and   may administer   oaths   in connection     there-
with.   Section 113.065 provides:

               The   county auditor  may  not  audit    or
            approve a claim unless the claim was incurred
            as provided by law.

      Because we concluded      in response to your first question
that the employment     of   legal advisors to the     commissioners
court or the sheriff is unlawful         in the absence of    compli-
ance with section      81.023 of the     Local Government   Code,    it
follows that     a claim      for salary   by   any  individual    not
appointed   thereunder     may not   be   approved by   the   auditor
under section 113.065.       See Attorney General Opinion JM-1099
(1989).

                               SUMMARY

               The Harris County Commissioners         Court   may
            not approve the      creation of staff      positions
            to be filled by attorneys       to be appointed     or
            employed by individual       commissioners,     or  by
            the sheriff,     for    the  purpose    of   advising
            those   officers     on   legal   matters     without
            complying  with the terms of section 81.023 of
            the Local Government-Code,       which provides




                                         P. 6886
Honorable     Mike   Driscoll   - Page       12     (JM-1281)




            that such special counsel    be named,              and  his
            terms   of employment   set,   by  the                county
            attorney.




                                                  J I M‘ MATTOX
                                                  Attorney General   of Texas

MARY KELLER
First Assistant      Attorney      General

LOU MCCREARY
Executive Assistant       Attorney     General

JUDGE ZOLLIE STHANLHY
Special Assistant  Attorney          General

RENEA HICKS
Special Assistant       Attorney     General

RICK GILPIN
Chairman,  Opinion      Committee

Prepared by Rick Gilpin
Assistant Attorney General




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                                         P. 6887
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