                                         The Attorney           General of Texas
                                                           April 29, 1983
JIM MATTOX
Attorney General


                                        Honorable Lloyd Doggett                 opinion No. JM-28
Supreme   Court Building
                                        Chairman
P. 0. BOX 12548
Austin, TX. 78711. 2548
                                        Jurisprudence, Human Resources, and     Re: Representation of office
5121475-2501                               State Affairs Committees             of Public Utility Counsel in
Telex    9101874-1367                   P. 0. Box 12068                         court
Telecopier     5121475-0266             Austin, Texas   78711

1807 Main St.. Suite 1400
                                        Dear Senator Doggett:
Dallas, TX. 75201-4709
2141742-8944                                You have requested our opinion on the following questions:

                                                     1.   In consideration of article IV, section 22,
4624 Alberta       Ave.. Suite    160
El Paso. TX.       79905-2793                     and   article   V,  section 21, of the Texas
9151533-3484                                      constitution, may the legislature grant to the
                                                  public utility counsel, as structured in Senate
                                                  Bill No. 577, Senate Bill No. 5, or House Bill No.
  20 Dallas AYB.. suite 202
douston.   TX. 77002.6986
                                                  887, the right to represent his office in a
7131650-0666
                                                  judicial proceeding?

                                                    2. Does Hill V. Texas Water Quality Board, 568
606 Broadway.         Suite 312                  S.W.2d 738 (Tex. Civ. App. - Austin 1978, writ
Lubbock,     TX.    79401.3479
                                                 ref'd n.r.e.), Hill V,- Lower Colorado River
8061747.5238            ;
                                                 Authority, 568 S.W.2d 473 (Tex. Civ. App. - Austin
                                                 1978, writ ref'd n.r.e.), or article IV, section
4309 N. Tenth.     Suite 8                       22, of the Texas Constitution prohibit the
McAllen.     TX. 78501-1685                      Attorney General from representing the Office of
5121682-4547
                                                 Public Utility Counsel, as structured in Senate
                                                 Bill No. 577, Senate Bill No. 5, or House Bill No.
200 Main Plaza, Suite 400                        887, on appeal to a judicial body?
San Antonio,  TX. 78205.2797
5121225.4191                                 We believe Attorney General Opinion MW-24 (1979) is dispositive
                                        of your first question. This opinion considered the constitutionality
An Equal       Opportunity/             of legislation authorizing staff attorneys of the Department of Human
Affirmative      Action     Employer    Resources to represent that department in litigation over child
                                        support. The opinion noted that a constitutional question had arisen
                                        in light of article IV, section 22. and article V, section 21, of the
                                        Texas'Constitution. These provisions read as follows:

                                                     The Attorney General. . . shall represent the
                                                  State in all suits and pleas in the Supreme Court
                                                  of the State in which the State may be a party,




                                                                p. 118
Honorable Lloyd Doggett - Page 2 (JM-28)




         and shall especially inquire 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
         forfeiture 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. He shall
         reside at the seat of government during his
         continuance in office. He shall receive for his
         services an annual salary in an amount to be fixed
         by the Legislature.

Tex. Const. art. IV, §22.

         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. . . .

Tex. Const. art. V, §21.    The opinion went on to state:

         The conclusion drawn from a long history [of] case
         law indicates that the above officials alone have
         the constitutional authority to represent the
         state. Hill v. Texas Water Quality Board, 568
         S.W.2d 738 (Tex. Civ. APP. - Austin 1978. writ
         ref'd n.r.e.); Brady V. B;boks, 89 S.W. 105i (Tex.
         1905); Agey v. American Liberty Pipeline Co., 172
         S.W.2d 972 (Tex. 1943); Adamson v. Connally, 112
         S.W.2d 287 (Tex. Civ. App. - Eastland 1937, no
         writ) ; Allen v. Fisher, 9 S.W.Zd 731 (Tex. 1928);
         Hancock V. Ennis, 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 county attorney,
         or authorized assistants, always to sign court




                                p. 119
,

    Honorable Lloyd Doggett - Page 3   (JM-28)




              papers as attorney of record and actually litigate
              the suit in court.

                  The constitution 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 zthe      Attorney General
             has continuing authority to intervene and control
             the     lawsuit,  the   proposed   legislation   is
             constitutional. Maud v. Terrell, 200 S.W. 375
              (Tex. 1918); Charles Scribner's Sons V. Marrs, 262
             S.W. 722 (Tex. 1924); General Appropriations Act,
             Acts     1977, 65th Leg., ch. 872        at   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. art. 695c,
             5818-B(b)(3), (e); General Appropriations Act,
             Acts 1977, 65th Leg., ch. 872, art. V, 941, at
             3160 (court representative of the state) and §42,
             at 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);    Postell V. Texas Department of Public
             Welfare, 549 S.W.2d 425 (Tex. Civ. App. - Fort
             Worth 1977, writ ref'd n.r.e.); cf. Collins v.
             g,        506 S.W.2d 293 (Tex. Civ. App. - San
             Antonio 1973, no writ); Attorney General Opinion
             M-249 (1968).

         It concluded that the constitutional authority of the attorney
    general to represent the state could not validly be diminished by the
    proposed legislation. The staff attorneys of the Department of Human
    Resources could constitutionally represent the department in court
    subject to supervisory control of the attorney general. See also
    Attorney General Opinions MW-340 (1981); NW-191 (1980); H-1284 (1978);
    H-268 (1974); and M-866 (1971).

         We believe the provisions of Senate Bill No. 577 authorizing the
    public utility counsel to represent his office in court are not
    constitutional unless the attorney general certifies his inability to
    represent the counsel and permits the public counsel to appear in
    court subject to the attorney general's supervision.

         To the extent that House Bill No. 887 contemplates court
    representation by the public utility counsel, such provisions are
    constitutional only if construed so that his representation is subject




                                   p. 120
Honorable Lloyd Doggett - Page 4   (JM-28)




to the attorney general’s supervisory control. Senate Bill No. 5
places   the  counsel under   the attorney general; thus, the
constitutional problem raised by your question is not present in
Senate Bill No. 5.

     You also ask whether the attorney general is prohibited from
representing the office of the public utility counsel in court where
the Public Utility Commission, also represented by the attorney
general, is an adverse party.       We have been unable to find a
constitutional provision which would prevent the attorney general from
representing opposing parties in a lawsuit. The attorney general has
a duty under article IV, section 22, to represent the state in the
supreme court. Where two state agencies are on opposite sides of a
lawsuit, the attorney general is required to represent both agencies.
In at least one case, the attorney general and three assistant
attorneys general were counsel of record for one agency, while another
assistant attorney general was counsel of record for the opposing
party. Texas National Guard Armory Board V. McGraw, 126 S.W.2d 627
(Tex. 1939). In recent years, it has been the practice for one of two
state agencies in litigation to be represented by outside counsel,
while the other is represented by the attorney general. Riders to the
general appropriations act have regulated this practice for several
years. The riders which appear in the current appropriations act read
in pertinent part:

             Sec. 40. COURT REPRESENTATION OF THE STATE.
          Except as otherwise provided by the Constitution
          or general or special statutes, the Attorney
          General   shall   have   the   primary   duty   of
          representing the State of Texas in the trial of
          civil cases, and none of the funds appropriated in
          this Act may be expended by any agency of the
          State Government to initiate a law suit or defend
          itself against any legal action unless such agency
          is represented in that particular action by the
          Attorney General or a member of his staff. . . .

             Sec. 41. OUTSIDE LEGAL COUNSEL.       Prior to
          expenditure of funds for retaining outside legal
          counsel, agencies and departments covered by this
          Act shall request the Attorney General to perform
          such services. If the Attorney General cannot
          provide such services, he shall so certify to the
          requesting   agency    who   w     then    utilize
          appropriated funds to retain outside counsel.

General Appropriations Act, Acts 1981, ch. 875, art. V, §§40, 41, at
3815.




                              p. 123
Honorable Lloyd Doggett - Page 5   (JM-28)




     Article V, section 41, as it appeared in the Appropriations Act
for fiscal 1974 to 1975, was discussed in Attorney General Opinion
H-268 (1974). The opinion determined that the rider did not modify or
amend general law. Insofar as it impliedly recognized authority in
the attorney general to represent the state in court, it was merely
declaratory of existing law. Although the rider authorized state
agencies to employ outside counsel when the attorney general certified
that he could not perform the needed services, it did not displace the
constitutional authority of the attorney general under article IV,
section 22, to represent the state in court.

     Thus, although a state agency may be represented in court by
outside counsel rather than by the office of the attorney general, the
attorney general has the legal authority to represent that agency, and
the outside counsel appears only with his consent. See Attorney
General Opinions MW-24 (1979); H-268 (1974).

     You specifically ask whether Hill v. Texas Water Quality Board,
568 S.W.2d 738 (Tex. Civ. App. - Austin 1978, writ ref'd n.r.e.) or
Hill v. Lower Colorado River Authority, 568 S.W.2d 473 (Tex. Civ. App.
- Austin 1978, writ ref'd n.r.e.), prohibit the attorney general from
representing the office of the public utility counsel on appeal to a
judicial body.

     Language appearing in Hill v. Texas Water Quality Board, 568
S.W.2d 738 (Tex. Civ. App. - Austin 1978, writ ref'd n.r.e.), suggests
that the attorney general cannot represent both sides in the lawsuit.
The attorney general sued the Water Quality Board seeking to set aside
orders regulating water pollution as unreasonable and arbitrary, and
constituting a denial of equal protection. The court denied him
standing on the ground that the constitution and statutes gave him the
exclusive right to represent state agencies and therefore precluded
him from suing the Water Quality Board. The court cited Maud v.
Terrell, 200 S.W. 375 (Tex. 1918) on the exclusive right of the
attorney general and district and county attorneys to represent the
state and stated as follows:

             Thus, either the Attorney General or a county
          or district attorney may represent the State in a
          particular situation, but these are the only
          choices, whichever official represents the State
          exercises exclusive authority and if services of
          other lawyers are utilized, they must be 'in
          subordination' to his authority. To uphold the
          Attorney General's position would give rise to an
          intolerable situation which, as was aptly observed
          by the trial court, would put him on both sides of
          the lawsuit.




                              p. 122
Honorable Lloyd Doggett - Page 6   (JM-28)




568 S.W.2d at 741. The court did not consider cases in which the
constitution and statutes placed the attorney general on opposite
sides in a lawsuit. The court also did not identify a constitutional
or statutory provision which prohibited the attorney general from
representing both sides in a lawsuit. The quoted statement is dicta,
because it is unnecessary to the decision. The attorney general had
no statutory or constitutional authority to represent any entity which
"as in conflict with the Water Quality Board. He was instead relying
on common law powers which the court concluded he did not possess.
Hill V. Texas Water Quality Board does not, however, stand for the
proposition that the legislature may not enact a statute authorizing
the attorney general to sue a state agency.

     In Hill V. Lower Colorado River Authority, 568 S.W.2d 473 (Tex.
Civ. App. - Austin 1978, writ ref'd n.r.e.), the attorney general
sought judicial review of the action of the Texas Water Rights
Commission in granting a permit to Houston Lighting and Power Company,
based on a contract between Houston Lighting and the Lower Colorado
River Authority. The court held that the attorney general had no
authority to bring such a suit. It discussed arguments relating to
the common law powers of the attorney general and concluded as
follo"s:

             We find in reviewing the cases decided by the
          courts of Texas a consistent adherence to the
          principle that the attorney general derives his
          power   and   authority   in   office   from   the
          Constitution and the laws of the State duly
          enacted by the Legislature.       It is further
          apparent that the duties and powers of the
          attorney general as expressed in the Constitution
          and in the statutes consistently ally the attorney
          general with the State as its counsel and advocate
          in its behalf, and nowhere do these grants of
          power arm the attorney general with authority to
          sue the State or any of its arms or agencies, even
          when the attorney general holds a view different
          from the decision or discretion exercised by an
          administrative agency.

568 S.W.2d at 480. The court did not consider any situation where the
legislature had enacted a statute authorizing the attorney general to
sue the state or one of its agencies.

     The opinion does not hold that the constitution forbids the
legislature from enacting a statute that places the attorney general
on both sides of a lawsuit. The legislature has in fact done so in at
least three instances. The Texas Open Records Act, article 6252-17a,
V.T.C.S., provides in section 8:




                              p. 123
-_

     Honorable Lloyd Doggett - Page 7   (JM-28)




              if a governmental body refuses to request an
              attorney general's decision as provided in this
              Act,   or   to  SUPPlY public     information of
              information which the attorney general has
              determined to be a public record, the person
              requesting the information or the attorney general
              may seek a writ of mandamus compelling the
              governmental body     to make    the   information
              available for public inspection.

     This provision authorizes the attorney general to sue governmental
     bodies, defined elsewhere in the Open Records Act to include agencies
     within the executive branch of the state government. V.T.C.S. art.
     6252-17a, §2(1)(A).

          Article 6252-26, V.T.C.S., authorizes the attorney general to
     defend officers and employees of the state against certain kinds of
     lawsuits arising out of acts or omissions by that person in the scope
     of his office or employment. Section 3(a) of article 6252-26 provides
     in part:

              It is not a conflict of interest for the attorney
              general to defend a person or estate under this
              Act and also to prosecute a legal action against
              that person or estate as may be required or
              authorized by law if different assistant attorneys
              general are assigned the responsibility for each
              action.

     Thus, while the attorney general defends an individual for actions
     undertaken within the scope of his state office or employment, he may
     at the same time sue that person. as long as different assistant
     attorneys general are assigned to each action.

          Article 5547-300, V.T.C.S., the Mentally Retarded Persons Act,
     authorizes the attorney general to initiate actions in the name of the
     state to enjoin vi~olations of and enforce compliance with the
     provisions of the act.     Sec. 65. Another provision of the act
     requires the attorney general to provide attorneys to defend employees
     of the Department of Mental Health and Mental Retardation in any civil
     action brought against them under the act. sec. 66. Thus, when the
     attorney general initiates an action against an employee of the
     department to enforce compliance with the act, he must also provide a
     defense for that person.

          In neither Hill V. Texas Water Quality Board, nor Hill v. Lower
     Colorado River Authority did the court rule on any statute authorizing
     the attorney general to bring suit against a state agency or to
     represent parties on opposing sides of a lawsuit. Thus, neither case




                                   P. 124
                                                                         ..   .


Honorable Lloyd Doggett - Page 8   (JM-28)




prohibits the attorney general from representing the Public Utility
Counsel against the Public Utility Commission.

                              SUMMARY

            (1) The provisions of Senate Bill No. 577 and
         House Bill No. 887 authorizing the public utility
         counsel to represent his office in a judicial
         proceeding are not constitutional unless the
         attorney general certifies his inability to
         represent the counsel and permits the public
         utility counsel to appear in a judicial proceeding
         subject to the attorney general's supervision.
         (2) The legislature may constitutionally grant the
         attorney general the authority to represent the
         Office of Public Utility Counsel in a judicial
         proceeding   adverse   to   the   Public   Utility
         Commission which is also represented by the
         attorney general.




                                    LA-I&* -
                                         Very truly you**,



                                         JIM
                                                 .


                                                 MATTOX
                                         Attorney General of Texas
                                                                     (


TOM GREEN
First Assistant Attorney General

DAVID R. RICHARDS
Executive Assistant Attorney General

Prepared by Susan L. Garrison
Assistant Attorney General

APPROVED:
OPINION COMMITTEE

Susan L. Garrison, Chairman
Rick Gilpin
Jim Moellinger
Nancy Sutton




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