                                  April   2, 1974


The Honorable James H. Stewart,           Jr.        Opinion No.   H-   268
President,   Tyler State College
100 E. Berta                                         Re:   Validity of restrictions
Tyler,   Texas 75701                                       on the authority of state
                                                           colleges to employ out-
                                                           side legal counsel,    imposed
Dear   President   Stewart:                                by the Appropriations    Act.

    Article   V. Section   41 of the Appropriations    Act for fiscal       1974 to
1975 (Acts,   63rd Leg.,    ch. 659, p. 1786) provides:

               “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
         :&l.i,ze appropriated   funds to retain outside counsel.       ”

    Thert is no simiiar restriction upon the use of appropriattd               funds
for “inside” counsel (attorneys who are state employees)  e

     Your letter notes that during fiscal 1973. Tyler State College retained
an at.tornay in private practice as legal counsel to the Board of Regents
i nd Administr~ation of the College.       Your question is whether it is per-
missible   fo.? this person to continue as counsel for the institution during
the current biennium with payment for his services         being expended
from funds appropriated       to the College in the Appropriations  Act, supra.
You. have r,ot. yet asked the Att:orney General to provide the services
which you wocll,d expect the Attorney General to render during the
birntium.   nor ha,~ie~:
                       y~oll described them for us.

    Saving for lo.trr discussion  the question of whrrher Tyler Sta’e
Coilege  wou1.d have autborify to retain and pay an attorney in the absence
of the quoted Appropriation    Act language,  our first concern is with the




                                          po 1.256
The Honorable       James   H.   Stewart,   Jr.,     page 2   (H-268)




validity of that Ianguage,   Appropriation    Act riders which attempt to
do more than detail, limit or otherwise restrict the use of appropriated
funds have often been held invalid as attempts to enact general legis-
lation in violation of Article 3, Sec. 35 of our Constitution.         See
Attorney   General Opinions M-1199      (1972) and V-1254      (1951).  But
riders which do no more than declare the established          law are per-
missible.    See Attorney General Opinion C-449       (1965).

     On two previous occasions    Attorney General Opinions have dealt
with the validity of Appropriation    Act riders giving the Attorney
General power to control the retention of outside counsel by state
agencies.   Attorney General Opinion M-249       (1968) upheld an Approp-
riations Act provision which stated:

                 “ATTORNEYS.       From and after September 1. 1967,
            should a vacancy occur in any department or institution
            of higher learning,   not otherwise exempted,     in Articles
            III or IV of this Act in a position which has as its pri-
            mary function the practice of law and rendering of
            legal services   and counsel,   said position shall be filled
            only after having received the written approval of the
            Attorney General.

                “None of the funds herein appropriated      may be
            expended for l.egal services   until the Attorney General
            has giv~en prior written approval for the employme+
            of sV;ch personnel  and the compensation     to be paid,
            This pro,vision shall apply to all legal services    ex-
            cept *hose rendered by personnel who are :lassified
            in the Position Classification   Plar..” (Emphasis   added).

      But   In Attorney General Opinion M-1199        (1972) identical passages
(except     for the date) Tontained ir, t,br 1971 General Appropriations     Act
--.-~Y- L   : 2 i? v&id as constituting ger.rraJ, legisla,tior,. Attorney General
Opini<,n     M-249    (1968) was expressly  overruled.

     Thr-~language reconsidered    in M-J 199 purported to give the Attorney
General a suhstarkive discrr4onary       power not accorded him by general,
law.   Assuming    that general J.aw permitted an agency to hire an attorney,
it would be a modification    of that law to s.ubstitute the discretion of the
Attorney    Genera? for the discretion given the agency in making the decision,

                                                                                    .
                                            p.     1257
;   -




        The Honorable    James    H. Stewart,    Jr.,     page 3   (I-I-268)




        Such provisions   were not merely legislative    limitations on the expend-
        iture of appropriated  funds.    They did not impose objective limitations
        requiring only ministerial    executive action; they subordinated the
        executive discretion  of the agency to that of the Attorney General.
        Compare Attorney General Letters Advisory         Nos. 2, 42 and 74 (1973).
        and Attorney General Opinion H-175 (1973).

             We believe,  however,   that there is a material   difference between
        the invalid provisions  of previous Appropriation     Acts and the language
        of the current Appropriations    Act cited at the beginning of this opinion
        and that the Courts would consider the current language to be consti-
        tutionally permissible.

             The current language under discussion     does not substitute the
        discretion  of the Attorney General for that of the agency in the matter.
        Only ministerial   functions are assigned to the Attorney General.
        Whether he approves or disapproves      of the agency using “outside”
        counsel is not a relevant consideration    in the matter.  His only duty
        is to determine whether he is able to provide the requested services,
        and certify his inability if it exists.

               Giving effect to the provision       does not amend or modify general
        law.      The  Attorney    General    is the chief legal officer of the state, and
        it is his constitutional      duty to advise executive officers if requested and
        to represent the state in the courts.            Article 4, Sec. 22, Texas Con-
        stitution.      The Legislature      cannot alter the Attorney General’s      consti-
        tutional prerogatives.         If it chooses,    it may authorize an agency to
        seek additional legal assistance           so long as it does not attempt to
        displace the Attorney General.             See Attorney General Opinion C-782
         (1966).    But it cannot forbid to the Attorney General the exercise           of a
        power constitutionally        vested in him.       For that reason,   even when
        an agency has been statutorily permitted to obtain additional legal
        assistance,      either by the permanent employment           of house counsel
         (“i;;i&”     counsel) or the temporary         engagement   of a private legal
        practitioner      (“ootslde”   counsel) there still exists in the Attorney
        General the legal authority to perform all legal services              for a state
        agency.

             Thus, the Appropriation   Act provision that limits expenditures  for
        outside legal ccunsel to those instances in which the Attorney General
        certifies  that he has not the capacity to perform the needed services



                                                 p.     1258
  The Honorable     James       H. Stewart,   Jr.,   page 4      (H-268)




  does not confer any additional authority upon the Attorney General,     or
  amend any statutory authority of an agencyio employ outside counsel.
  It merely limits expenditures      for such a purpose,   and insofar as
  it impliedly recognizes    authority in the Attorney General to perform
  the needed services,    it is merely declaratory    of existing law.

      In our opinion, therefore,   the rider to the 1973 Appropriation    Act
  is valid, and no appropriated   money may be legally spent by any agency
  to employ “outside”    legal counsel unless the Attorney General has been
  requested to perform the needed services,      but has certified his inability
  to provide them.    Inasmuch as Tyler State College has not made such
  a request,   nor received such a certification  from the Attorney General,
  presently it has no legal authority to expend appropriated      funds during
  the 1973-1974 biennium to retain outside legal counsel.

                                SUMMARY

                 A rider to the Appropriations   Act imposing as a
            condition precedent to the employment      of “outside”
            legal counsel that the Attorney General be first asked
            to provide the services   and, if unable,to certify that
            fact, is a Mlid limitation on the expenditure of ap-
            propriated fundr.

                                                          Very   truly yours,



                                                                  Pa2
                                                          JOHN L. HILL
                                                          Attorney General      of Texas




~~~~~~.-~


          -A?--
           .    1           +    Chairman
  Opinion Committee




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