JIM MATTOX 

Attorney General 

Supreme Court Building 

P. 0. BOX 12548 

Austin, TX. 78711. 2548 

5121475-2501 

Telex 9101874-1367 

Telecopier 5121475-0266 

1807 Main St.. Suite 1400 

Dallas, TX. 75201-4709 

2141742-8944 

4624 Alberta Ave.. Suite 160 

El Paso. TX. 79905-2793 

9151533-3484 

20 Dallas AYB.. suite 202 

douston. TX. 77002.6986 

7131650-0666 

606 Broadway. Suite 312 

Lubbock, TX. 79401.3479 

8061747.5238 ; 

4309 N. Tenth. Suite 8 

McAllen. TX. 78501-1685 

5121682-4547 

200 Main Plaza, Suite 400 

San Antonio, TX. 78205.2797 

5121225.4191 

An Equal Opportunity/ 

Affirmative Action Employer 

The Attorney General of Texas 

April 29, 1983 

Honorable Lloyd Doggett 

Chairman 

opinion No. JM-28 

Jurisprudence, Human Resources, and Re: Representation of office 

State Affairs Committees of Public Utility Counsel in 

P. 0. Box 12068 court 

Austin, Texas 78711 

Dear Senator Doggett: 

You have requested our opinion on the following questions: 

1. In consideration of article IV, section 22, 

and article V, section 21, of the Texas 

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. 

887, the right to represent his office in a 

judicial proceeding? 

2. Does Hill V. Texas Water Quality Board, 568 

S.W.2d 738 (Tex. Civ. App. - Austin 1978, writ 

ref'd n.r.e.), Hill V,- Lower Colorado River 

Authority, 568 S.W.2d 473 (Tex. Civ. App. - Austin 

1978, writ ref'd n.r.e.), or article IV, section 

22, of the Texas Constitution prohibit the 

Attorney General from representing the Office of 

Public Utility Counsel, as structured in Senate 

Bill No. 577, Senate Bill No. 5, or House Bill No. 

887, on appeal to a judicial body? 

We believe Attorney General Opinion MW-24 (1979) is dispositive 

of your first question. This opinion considered the constitutionality 

of legislation authorizing staff attorneys of the Department of Human 

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. 

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

. 

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 

P. 125