                        The Attorney                General of Texas
                                            OctDber     10,   1980
MARK WHITE
Attorney General

                   Honorable Bob Bullock                             Opinion No.   m-255
                   Comptroller   of Public Accounts
                   L.B.J. Building                                   Re: Validity    of actions   of the
                   Austin, Texas    78774                            Texas   Prosecutors    Coordinating
                                                                     Council

                   Dear Mr. Bullock:

                          In 1977, the Texas legislature    enacted article 332d, V.T.C.S., which
                   created the Texas Prosecutors     Coordinating    Council, defined its powers and
                   duties, and provided for the reprimand,        disqualification,     or removal from
                   office of prosecuting  attorneys   for certain reasons.          Acts 1977, 65th Leg.,
                   ch. 345, at 917. Section 3 of article 332d provides that the council shall be
                   composed of nine members, selected as follows:

                                   (1) four citizens of the State of Texas, who are
                               not licensed      to practice law, appointed  by the
                               Governor of Texas, with the advice and consent of
                               the senate. . .

                                   (2) the president of the Texas District         and County
                               Attorneys Association; and

                                    (3) four incumbent, elected prosecuting    attorneys
                               to be selected     by the membership       of the Texas
                               District and County Attorneys     Association,    at least
                               one each of whom shall be a county attorney,              a
                               district attorney, and a criminal district attorney.

                   You ask whether the legislature   has unconstitutionally          conferred the power
                   of appointment  upon a private association  in violation         of article II, section 1
                   of the Texas Constitution, which provides that:

                                   The powers of Government.       . . shall be divided
                               into three distinct departments,    each of which shall
                               be confided   to a separate    body of magistracy,     to
                               wit: Those which are Legislative     to one; those which
                               are Executive      to another,   and those     which are
                               Judicial to another; and no person, or collection      of




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Honorable    Bob Bullock     - Page Two         (I@-255)




              persons, being of one of these departments,     shall exercise any
              power properly attached    to either of the others, except in the
              instances herein expressly permitted.

        The constitution        of Texas, unlike the federal            constitution,    operates     as a
limitation     upon power.      “All power which is not limited by the Constitution             inheres in
the people, and an act of a state legislature            is legal when the Constitution       contains no
prohibition     against it.” Watts v. Mann, 187 S.W. 2d 917 (Tex. Civ. App. - Austin 1945,
writ repd).       The authority     to legislate on any subject not expressly or by necessary
implication      denied by the constitution       resides with the legislature,       and action of that
body is regarded as final unless in plain, unequivocal              terms such action is contrary to
constitutional     limitations.    See          Governmental     Services Insurance Underwriters         v.
Jones, 368 S.W. 2d 560                                     Day, 76 S. W. 2d 1060 (Tex. Crim. App.
1934). Courts will not hold leeislation unconstitutional             unless it is absolutelv necessarv
to do so. Texas State Board”of Barber Examiners v. Beaumont Barber College, Inc.,
454 S.W. 2d 729 (Tex. 1970).

        Sensing that the concentration       of the legislative,  executive    and judicial powers
of government      in the same hands would inevitably lead to tyranny, the framers of the
Texas Constitution        provided in article II, section 1 for the exercise of these three
functions by separate and independent         branches of government.       Article II, section 1, a
version of which has bean incorporated          in all of our state constitutions,     requires that
each branch act pursuant to its own authority.          If one branch exceeds its authority and
usurps powers which it does not possess, its acts are a nullity and are not binding on
other branches of government.           Ex parte Giles, 502 S.W. 2d 774 (Tex. Crim. App.
1973). This principle of separation        of powers does not absolutely prohibit one branch
from performing      acts which by their nature belong to another branch - the practical
necessities    of efficient     government    prevent    its complete    application     -but    the
general rule still exists that while one branch may exercise any power which the
constitution    delegates    to it, it may not exercise powers not so granted which, from
their essential nature, do not fall within its division of governmental         functions.

       The question before us is whether, in light of the underlying purpose of article II,
section 1 of the constitution,   article 332d, V.T.C.S., unconstitutionally delegates   the
power of appointment      to the Texas District and County Attorneys Association,     which
is a private association.   We conclude that it does not.

      The El Paso Court of Civil Appeals addressed virtually the same issue in Miller v.
El Paso County, 146 S.W. 2d 1027 (Tex. Civ. App. - El Paso 19401, -.              rev’d on-- other
            150 S.W. 2d 1000 (Tex. 1941). Miller presented       a constitutional    chal Llenge to
!%$?article       2352b. V.T.C.S.. whi ch attempted     to authorize the levy of a five-cent
tax for use in advert&z      and dromotional   ourooses
                                               _   .      in certain counties.      Article 2352b
also provided that:       -       -

                 Sec. 3. There is hereby created in such counties. . . a Board
              of County Development,    which. . . . shall consist of five (5)
              members; two (2) to be appointed by the Commissioners’     Court




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    Honorable   Bob Bullock    - Page Three        (.MW-255)




                 of such counties. . . and three (3) of whom shall be appointed by
                 the Board of Directors     of the Chamber of Commerce       of the
                 county seat of such county.

    Responding to the contention        that this method of appointing members of the Board of
    County Development        contravened     article II, section 1, the court cited earlier Texas
    cases that had approved a statute which provided for appointments             by the Speaker of
    the House, Dorenfield      v. State, 73 S.W. 2d 83 (Tex. 19341, as well as a home-rule city
    ordinance providing that members of a Board of Development             would be appointed from
    a list named by that board, Davis v. City of Taylor, 67 S.W. 2d 1033 (Tex. 19341, and
    concluded that “we can see little difference         in confiding the power of appointment      to
    an office other than the executive department           and confiding it to an unofficial body.”
    146 S.W. 2d at 1035. The Supreme Court, although it overturned             the taxing provisions
    of the statute, did not disturb the lower court’s holding on this issue. In our opinion,
    therefore,   Miller may validly be cited for the proposition that a statutory delegation of
    the power of appointment        to an unofficial body such as the one at issue here does not
    violate article II, section 1 of the Texas Constitution.

            Section    1 of article 332d states    that “the legislature   recognizes     that the
    prosecutor      performs  an executive  function   which has a significant     effect   on the
    judicial branch and on law enforcement”       and declares the purpose of the statute to be
    to:

                      provide a centralized       agency capable of delivering technical
                 assistance,     educational    services, and professional      development
                 training to the prosecutors         of Texas and their assistants and to
                 improve       the    administration      of criminal     justice     through
                 professionalization      of the prosecuting   attorney’s office.

    Clearly, in the legislature’s     judgment,      the objectives set forth in section 1 of article
    332d could best be accomplished          by a Coordinating     Council that contains members who
    are either appointed by the Texas District and County Attorneys                 Association    or who
    occupy their seat by virtue of being president of that association.             We have noted that
    the legislature    is authorized    to legislate on any subject not expressly or by necessary
    implication    denied by the constitution,       and that its action will not be annulled unless it
    clearly and unequivocally      contravenes     the constitution.    Because article II, section 1, as
    construed    in Miller v. El Paso, s,             does not, in our opinion, clearly prohibit the
    legislature    from delegating       authority    in the manner provided for in article 332d,
    V.T.C.S., we conclude that no constitutional            problem exists under that constitutional
    provision.

          You also ask a number of questions regarding the authority         of the Prosecutors
    Coordinating  Council to contract with a private attorney to assist the district attorney
    of Bell County in preparing    and trying a criminal case.        As we stated in Attorney
    General Opinion MW-191 (1980), the Prosecutors       Coordinating   Council may not spend
    appropriated   funds to hire an outside     attorney    to assist a district     attorney   in
    prOSecutiIYg a case, unless the attorney   general has been requested        to perform the




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Honorable      Bob Bullock    - Page Four           (I%+2551




needed services end has certified   his inability to do so. Sea General Appropriations
Act, Acts 1979, 66th Leg., ch. 843, at 2917. Our office hasow          given the necessary
waiver to the council.    You wish to know whether the council has statutory      authority
to provide such services to a district attorney.      Specifically,   you ask whether the
contract   between    the council and the attorney      selected    as special prosecutor
represents    a form of “technical   assistance”   which section     8(7) of article   332d
authorizes  the council to provide.

       The council is presently     operating   on federal  funds provided  by the Law
Enforcement    Assistance Administration    (LEAA). Attorney General Opinion MW-191. It
was the declared policy of Congress in establishing   the LEAA to:

                   aid State     and local governments    in strengthening    and
               improving    their   systems  of criminal   justice  by providing
               financial and technical assistance   with maximum certainty and
               minimum &lay.

42 U.S.C. 53701. Pursuant     to 42 U.S.C. section 3742(b), each             state   is required   to
maintain a criminal justice council for the purpose of, inter alia:

                    providing    technical    assistance    upon request      to State
               agencies,      community-based      crime prevention     programs,   the
               judicial coordinating     committee,     and units of local government
               in matters relating to improving criminal justice in the State.
               (Emphasis added).

Federal     regulations   provide:

                    ‘LEAA assistance,       LEAA    financial  assistance,   LEAA
               assistance    program, or LEAA assisted programs’ are programs
               that provide assistance      through LEAA grant or contractual
               arrangements;     these also include technical assistance programs
               or programs providing assistance in the form of loans .

28 C.F.R.     530.24(d) (Emphasis    added).

        Thus, federal law would seem to indicate that a “technical assistance” program is
simply one funded by an LEAA grant or contract.              In addition, “technical” has been
defined     as “belonging     or peculiar to an art or profession.”           In our opinion, the
legislature    contemplated      that the kind of “technical         assistance”   provided   to a
prosecuting    attorney by a statewide     prosecutors   coordinating     council would ordinarily
be prosecutorial     assistance.   Thus, we believe that a contract between the council and
an attorney      to assist a district attorney    in trying a case falls squarely within the
meaning of “technical assistance.”

        You also express concern about whether the contract at issue here constitutes  an
interference    with the duties of a district attorney. Although the legislature  may not




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            Honorable    Bob Bullock   - Page Five     (NW-255)




            take away the duties of a district attorney     and confer them on others, Shepperd v.
            Alan& 303 S.W. 2d 846 (Tex. Civ. App. - San Antonio 1957, no writ), it has not done so
            -article    332d. That statute permits the council only to respond to requests from a
            prosecutor,   and the contract here makes clear that the district attorney “has requested
            technical assistance of the council.”

                   Finally, you ask whether the contract permits retroactive         payment to the special
            prosecutor.     The contract,   as signed by the parties on January 9,1980, does not provide
            for retroactive     payment.   It merely stipulates   that the council has applied for a grant
            adjustment     allowing payment to the special prosecutor      at the rate of $200 per day, and
            that full payment in such amount is owing from the begin&            of the contract. Since the
            contract    containing   these provisions was entered into prior to the rendering of any
            services, we do not believe that it permits retroactive       payment.

                                                     SUMMARY

                             Article 332d, V.T.C.S., does not unconstitutionally       delegate
                         the power of appointment         to the Texas District     and County
                         Attorneys   Association   in violation of article II, section 1 of the
                         Texas Constitution.     The Prosecutors     Coordinating     Council is
                         authorized   by that statute to contract     with a private attorney
                         to assist a district attorney in preparing and trying a criminal
                         case.




                                                             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 & Rick Gilpin
            Assistant   Attorneys General

            APPROVED:
            OPINION COMMlTTEE

            Susan Garrison, Acting     Chairman
            Jim Allison
            Jon Bible
            Rick Gilpin
            C. Robert Heath




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