                       The Attorney              General of Texas
                                          May 26, 1981
MARKWHITE
Attorney General
                   Honorable Bennie Bock II                   Opinion No. MW-340
                   Chairman
                   Committee on Environmental     Affairs     Re: Whether Texas Parks and
                   House of Representatives                   Wildlife Commission may contract
                   Austin, Texas 78769                        with    a private   attorney     to
                                                              prosecute shrimp and confiscation
                                                              ceses

                   Dear Representative   Bock:

                          The Texas Parks and Wildlife Department is a state agency under the
                   policy direction of the Parks and Wildlife Commission. Parks and Wildlife
                   Code SlLOlL Among other things, the department             is responsible for
                   enforcing state laws which protect wildlife and marine life. SS12.001; 12.101.

                         You ask whether the department     may:

                              contract with a private attorney to prosecute shrimp
                              and confiscation cases and other wildlife infringe-
                              ments of the law to aid parks and wildlife.

                   You advise that prosecutions of game laws have heretofore      been undertaken
                   by local district attorneys’ offices.

                          Violations of the Parks and Wildlife Code provisions relating to wildlife
                   and marine life constitute misdemeanors or felonies, which call for a fine
                   and, in some instances, a jail sentence.    See e.
                   SS6L901, 66.106, 76.037, 76.216, 77.020, 78.17i+I%i%Zsa~~o?Zi~tCs~~
                   violations are therefore guilty of criminal offenses. See also Penal Code
                   SSl.OS(b) (classification of offenses outside Penal CodeJml6         Tex. Jur.
                   2d Criminal Law SSl-6.

                         Texas law places the responsibility      for representing   the state in
                   prosecutions of criminal cases in the district and inferior courts in the hands
                   of county and district attorneys.      Article V, section 21 of the Texas
                   Constitution provides that:

                                . . . 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.



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Honorable Bennie Bock II - Page Two       (~~-340)




Article 2.01 of the Code of Criminal Procedure provides that:

           Each district attorney shall represent the State in all criminal
           cases in the district courts of his district, except in cases where
           he has been, before his election, employed adversely.

Article 2.02 of the Code of Criminal Procedure provides that:

           The county attorney shall attend the terms of court in his
           county below the grade of district court, and shall represent the
           State in all criminal cases under examination or prosecution in
           said county; and in the absence of the district attorney he shall
           represent the State alone and, when requested, shall aid the
           district attorney in the prosecution of any case in behalf of the
           State in the district court.

See Garcia v. Laughlin, 285 S.W. 2d 191(Tex. 1955); Maud v. Terrell, 200 S.W. 375 (Tex.
1918); Brady v. Brooks, 89 S.W. 1052 (Tex. 1905); State v. Moore, 57 Tex. 307 (1882);
Shepperd v. Alanix, 303 S.W. 2d 846 (Tex. Civ. App. -San Antonio 1957, no writ);
Attorney General 6pinions MW-255 (1980); MW-24 (1979). These officers are therefore
responsible for representing the Parks and Wildlife Department in the district and
inferior courts in prosecutions of offenses arising under the Parks and Wildlife Code.

       Because officers who are legally obligated to represent the state in the courts
may not be stripped of their authority, see,.e.g., Garcia v. Laughlin, ~~JIX, it is clear
that the Parks and Wildlife Department mav not hire orivate counsel to prosecute
criminal eases without the involvement of the district or county attorney.‘ But the
question remains whether it may use appropriated funds to hire a private attorney to
assist these officers in prosecuting these cases. Our courts have held that officers who
are responsible for representing the state in court may, under some circumstances, be
assisted in carrying out this obligation, provided such assistance is rendered in a
subordinate capacity and the officer remains in control of the litigation.      See, e..g.,
Maud v. Terre& e,            (upholding statute authorizing comptroller to contract with
“suitable person” to collect inheritance taxes on theory that statute did not purport to
deprive county attorney of his authority); Allen v. Fisher, 9 S.W. 2d 731 (Tex. 1928);
Brady v. Brooks, supra, (under article IV, section 22 of the Texas Constitution,
Attorney General may be given duty to represent state in various matters in district
court, along with county or district attorney);        see also Attorney General Opinions
MW-255 (1980) (article 332d, V.T.C.S., authorizes Prosecutors Coordinating Council to
furnish prosecutorlal assistance to a district attorney at latter’s request); MW-24 (1979)
(statute authorizing Department of Human Resources staff attorneys to represent
department     in litigation    seeking child support upheld on ground that any such
representation is provided with implicit consent of Attorney General).

       We think this question must be answered in the negative. While we believe that
the legislature could enact valid legislation authorizing the department to contract
with private counsel to assist county and district attorneys in performing their lawful
function, it has not done so. In our opinion, the department may exercise this power
only if the legislature clearly authorizes it to do so.




                                       p. 1118
L   .




        Honorable Bennie Bock II - Page Three       (~~-340)




              The cases in this area do not address the precise question of whether an agency
        may only hire private counsel for the purpose described above if the legislature
        authorizes it to do so. But we believe that this conclusion follows from the discussion
        and approach taken therein. In Maud v. Terre& e,          for example, the court stated
        that:

                   . . . ITI he powers thus conferred by the Constitution  upon these
                   officials    [the Attorney   General and county and district
                   attorneys] are exclusive. The Legislature cannot devolve them
                   uoon others.     Nor can it interfere with the rieht to exercise
                   them. . . It may provideassistance     for the prop& discharge b
                   these officials of their duties, but since in the matter o
                   prosecuting the oleas of the State in the courts the oowers
                   reposed in-them are exclusive in their nature, it cannot, for the
                   performance of that function, obtrude other persons upon them
                   and compel the acceptance          of their services.    Wherever
                   provision is made for the services of other persons. . . it is the
                   constitutional right of the Attorney-General    and the county and
                   district attorneys to decline them or not at their discretion,
                   ad,     if availed of, the services are to be rendered in
                   subordination to their authority. (Emphasis added).

        200 S.W. at 376. In State Board of Dental Examiners v. Bickham, 203 S.W. 2d 563 (Tex.
        Civ. App. - Dallas 1947, no writ), which involved an appeal from an order of the board
        suspending Bickham’s license to practice dentistry, the court stated, at p. 565-66, that:

                    . . .The provisions of Art 4550a. . . confer the power on the
                    Dental Board to employ necessary          assistance   to State
                    prosecuting officers in the enforcement of the law pertaining to
                    unlawful practice of dentistry. (Emphasis added).

        Other relevant cases and Attorney General Opinions seem clearly to assume that such
        statutory authority is a prerequisite; in fact, the question in most of them was whether
        the particular statute at issue went too far, i.e., divested the Attorney General or the
        county and district attorneys of their lawfulxthority.       See, e.g., Garcia v. Laughlin,
        supra; Attorney General Opinions MW-225; MW-24, supra

                Our conclusion that an agency may not hie private counsel to assist county and
        district attorneys in prosecuting criminal cases on its behalf unless it is specifically
        authorized to do so is not affected by cases such as Powers v. Hauck, 399 F. 2d 322
        (5th Clr. 1968); Ballard v. State, 519 S.W. 2d 426 (Tex. Crim. App. 1974); Bingham v.
        State, 290 S.W. 2d 915 (Tex. Crlm. App. 1956); and Phillips v. State, 263 S.W. 2d 159
        (Tex. Crlm. App. 1959). Those cases merely hold that a defendant’s constitutional
        right to due process is not denied if a private attorney is permitted to participate in a
        criminal prosecution as long as the district attorney retains control and management
        of the prosecution. They imply nothing with regard to the cicumstances       under which
        private counsel may be retained.




                                              p.   1119
Honorable Bennie Bock II - Page Four        (~~-340)




      It has been suggested that section 12.105 of the Parks and Wildlife Code affords
the required authority. That section provides as follows:

                  (a) The department may file complaints in the name of the
              State of Texas to recover fines and penalties for violations of
              the laws relating to game, birds, and fish.

                   (b) The department may file a complaint and commence
              proceedings against an individual for violation      the laws
              relating to game, birds, and fish without the approval of the
              count    attorne  of the county in which the proceedings are
              -is                 added).

    We assume the contention      is that the term “commence proceedings” connotes
    something more than merely filing a complaint, &,            that it involves actual
    prosecution of the case, and that if the department may commence proceedings
    without the county attorney’s approval, it necessarily possesses the authority to hire
    private counsel to do so.

         We decline to construe section 12.105 this broadly. Were we to do so, we would
    be forced to conclude that the statute is unconstitutional, because it would deprive
    county attorneys of their authority to represent the department in prosecutions of
    offenses arising under the Parks and Wildlife Code. In our opinion, section 12.105
    merely authorizes the department to file a complaint without the county attorney’s
    approval; it does not authorize anything more to be done without his involvement.
    The phrase “and commence proceedings” is superfluous, because the act of filing a
    complaint is itself what “commences proceedings”       Once a complaint is filed, the
    duties of the county and district attorneys are as prescribed by statute.  See Code
    Crim. Proc. arts. 2.01-2.08.

         Neither does the General Appropriations Act, Acts 1979, 66th Leg., ch. 843, at
    2445, provide the necessary authority. Article V, section 42 of the act provides that:

              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 may then utilize appropriated fimds to
              retain outside counsel.

5   at 2917. However, it is settled that general legislation cannot be enacted in an
appropriation bilL See Attorney General Opinion M-1199 (1972), which cites, among
other authorities, Moore v. Sheppard, 192 S.W. 2d 559 (Tex 1946); see also Attorney
General Opinion H-268 (1974) (appropriation      bill may do no more than declare
established law). Thus, this provision does not provide authority for an agency to
contract with a private attorney; on the contrary, it merely sets forth a requirement
which must be met before an agency which is authorized to employ outside counsel
may use appropriated ftmds to do so. -See Attorney General Opinions MW-255, MW-191
(1980).




                                      p.   1120
Honorable Bennie Bock II - Page Five     (~~-340)




                                    SUMMARY

               Absent statutory authority permitting it to do so,   the Parks
           and Wildlife Department      may not contract    with    a private
           attorney to prosecute shrimp and confiscation cases      and other
           wildlife infringements of the law. No such statutory      authority
           exists.




                                              MARK      WHITE
                                              Attorney General of Texas

JOHN W. FAINTER, JR.
First Assistant Attorney General

RICHARD E. GRAY III
Executive Assistant Attorney General

Prepared by Jon Bible
Assistant Attorney General

APPROVED:
OPINION COMMITTEE

Susan L. Garrison, Chairman
Jon Bible
Timothy L. Brown
Rick Gilpin
Jim Moellinger




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