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

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An Equal Opportunity/ Affirmative Action Employer 

# The Attorney General of Texas

April 29, 1983

Honorable LloydDoggett Chairman opinionNo. JM-28
Jurisprudence,Human Resources,and Re: Representationof office StateAffairs Committees of PublicUtility Counsel in P. 0. Box 12068 court Austin, Texas 78711

Dear SenatorDoggett:

You have requestedour opinionon the followingquestions:

1. In considerationof 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 BillNo. 577, SenateBillNo. 5, or House BillNo. 887, the right to represent his office in a judicialproceeding?

2. Does Hill V. TexasWater 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, SenateBill No. 5, or House BillNo. 887, on appeal to a judicialbody?

We believe Attorney General Opinion MW-24 (1979) is dispositive ofyour first question. This opinion consideredthe constitutionality of legislationauthorizing staff attorneys of the Department of Human Resources to represent that department in litigation over child support. The opinion noted that a constitutionalquestion had arisen in light of article IV, section 22. and articleV, section 21, of the Texas'Constitution. Theseprovisions readas 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,

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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 requestedby them, and perform such other duties as may be requiredby law. He shall reside at the seat of government during his continuance in office. He shall receive for his servicesan annual salary in an amount tobe fixed by theLegislature.

Tex. Const. art. IV, §22.

The County Attorneys shall represent the State in all cases in the District and inferior courts in their respectivecounties;but if any county shall be included in a district inwhich there shallbe
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 opinionwent on to state:

The conclusiondrawn froma longhistory [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'dn.r.e.); BradyV. 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); HancockV. 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 constructionof the constitutiondoes not require theAttorney General,district or county attorney,
or authorized assistants, always to sign court

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HonorableLloydDoggett - Page 3 (JM-28)

papers as attorneyof record and actually litigate the suit in court.

The constitution gives the Attorney General authority to represent the department. He cannot constitutionallybe deprived of his authority to control the litigation. See State v. Moore, 57 Tex. 307 (1882). So longzthe 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'sSonsV. Marrs, 262 S.W. 722 (Tex. 1924); General AppropriationsAct, Acts 1977, 65th Leg., ch. 872 at 2777. Representationby the department'sstaffattorneys would be construedtobe with the implicitconsent 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 (courtrepresentativeof the state) and §42, at 3161 (permitting outside counsel); Taylor V. Texas Departmentof PublicWelfare, 549 S.W.2d 422 (Tex. Civ. App. - Fort Worth 1977, writ ref'd n.r.e.) (untimelyobjection that representationby 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 couldnot validly be diminishedby 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 AttorneyGeneralOpinionsMW-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 constitutionalunless the attorney general certifieshis inability to represent the counsel and permits the public counsel to appear in court subject to the attorneygeneral's supervision.

To the extent that House Bill No. 887 contemplates court representation by the public utility counsel, such provisions are constitutionalonly if construedso thathis representationis subject

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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 SenateBill No. 5.

You also ask whether the attorney general is prohibited from representing the office of the public utility counsel in courtwhere the Public Utility Commission, also represented by the attorney general, is an adverse party. We have been unable to find a constitutionalprovisionwhichwould prevent the attorneygeneral from representing opposingparties 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 representboth agencies. In at least one case, the attorney general and three assistant attorneysgeneralwere counselof 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 recentyears, ithas been thepractice for one of two state agencies in litigation to be represented by outside counsel, while the other is representedby the attorneygeneral. Riders to the general appropriations act have regulated this practice for several years. The riderswhich appear in the currentappropriationsact read in pertinentpart:

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 againstany legal actionunless suchagency 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 AppropriationsAct, Acts 1981, ch. 875, art. V, §§40, 41, at 3815.

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Article V, section 41, as it appeared in the AppropriationsAct for fiscal 1974 to 1975, was discussed in Attorney General Opinion H-268 (1974). The opiniondetermined that the riderdid notmodify 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 counselwhen theattorneygeneral certified thathe couldnot perform the needed services, it did not displace the constitutional authority of the attorney general under article IV, section 22, to representthe state in court.
Thus, although a state agency may be represented in court by outside counselrather thanby the office of the attorneygeneral, the attorneygeneralhas the legalauthority to representthat agency,and the outside counsel appears only with his consent. See Attorney GeneralOpinionsMW-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 Hillv. Lower ColoradoRiverAuthority, 568 S.W.2d 473 (Tex.Civ.App.

- Austin 1978,writ ref'dn.r.e.), prohibit the attorney general from representing the office of the public utility counsel on appeal to a judicialbody.
Language appearing in Hill v. Texas Water Quality Board, 568 S.W.2d 738 (Tex.Civ.App. - Austin 1978,writ ref'dn.r.e.), suggests that the attorney general cannot representboth sides in the lawsuit. The attorney general sued theWater Quality Board seeking to set aside orders regulatingwater pollution as unreasonable and arbitrary, and constituting a denial of equal protection. The court denied him standingon theground that the constitutionand statutesgave 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 stateand statedas follows:

Thus, either the Attorney General or a county or district attorneymay 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 positionwould give rise to an intolerablesituationwhich, as was aptly observed by the trial court,would put him on both sides of the lawsuit.

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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 identifya constitutional
or statutory provision which prohibited the attorney general from representingboth sides in a lawsuit. The quoted statement is dicta, because it is unnecessary to the decision. The attorney general had
no statutoryor constitutionalauthority to representany entitywhich "as in conflictwith 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 legislaturemay not enact a statute authorizing the attorneygeneral to sue a stateagency.

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 grantinga permit to HoustonLighting 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 statutesconsistentlyally the attorney generalwith the State as its counseland advocate in its behalf, and nowhere do these grants of power arm the attorney general with authority to sue the Stateor any of its arms or agencies,even when the attorney general holds a view different from the decision or discretion exercised by an administrativeagency.

568 S.W.2d at 480. The courtdid not considerany situationwhere the legislaturehad 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 sidesof a lawsuit. The legislaturehas in fact done so in at least three instances. The Texas Open RecordsAct, article 6252-17a, V.T.C.S.,provides in section 8:

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HonorableLloyd 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 requestingthe informationor the attorneygeneral may seek a writ of mandamus compelling the governmental body to make the information available forpublic inspection.

This provision authorizes the attorney general to sue governmental bodies, defined elsewhere in the Open RecordsAct 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 omissionsby thatperson in the scope of his officeor employment. Section 3(a) of article 6252-26provides 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 authorizedby law if differentassistantattorneys general are assigned the responsibility for each action.
Thus, while the attorney general defends an individual for actions undertakenwithin the scope of his state office or employment,he may at the same time sue that person. as long as different assistant attorneysgeneralare assigned to each action.
Article 5547-300, V.T.C.S., the Mentally Retarded Persons Act, authorizes the attorneygeneral to initiateactions in thename of the state to enjoin vi~olationsof and enforce compliance with the provisions of the act. Sec. 65. Another provision of the act requires the attorney general toprovide attorneysto defend employees of theDepartmentof Mental Health andMental 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 compliancewith the act, he must also provide a defense for thatperson.

In neither Hill V. Texas Water Quality Board, nor Hill v. Lower ColoradoRiverAuthority did the court rule on any statuteauthorizing the attorney general to bring suit against a state agency or to representparties on opposing sides of a lawsuit. Thus, neither case

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prohibits the attorney general from representing the Public Utility Counselagainst the PublicUtility 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 judicialproceeding subject to the attorney general's supervision. (2)The legislaturemay constitutionallygrant 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 trulyyou**, 

# LA- I&*- .

JIM MATTOX ( AttorneyGeneral of Texas

TOM GREEN FirstAssistantAttorneyGeneral

DAVID R. RICHARDS ExecutiveAssistantAttorneyGeneral
Preparedby SusanL. Garrison AssistantAttorney General

APPROVED: OPINION COMMITTEE

SusanL. Garrison,Chairman Rick Gilpin JimMoellinger Nancy Sutton

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