# The Attorney General of Texas May26, 1981 MARK WHITE AttorneyGeneral Honorable Bennie BockII Chairman Opinion No. MW-340 Committee onEnvironmental Affairs Re: Whether Texas Parks and House ofRepresentatives 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 astate 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. Youask whether the department may: contract with a private attorney to prosecute shrimp and confiscation cases and other wildlife infringements ofthe law to aid parks and wildlife. You advise that prosecutions of game laws have heretofore been undertaken by local district attorneys’ offices. Violations ofthe Parks and Wildlife Code provisions relating to wildlife and marine life constitute misdemeanors or felonies, which call for a fine and, in some instances, ajail sentence. See e. 17i+I%i%Zsa~~o?Zi~tCs~~ SS6L901,66.106,76.037, 76.216,77.020, 78. violations are therefore guilty of criminal offenses. See also Penal Code SSl.OS(b)(classification of offenses outside Penal CodeJml6 Tex. Jur. 2dCriminal Law SSl-6. Texas law places the responsibility for representing the state in prosecutions of criminal cases inthe district and inferior courts inthe 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 beregulated bythe Legislature.

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Article 2.01ofthe Code of Criminal Procedure provides that:

Each district attorney shall represent the State in all criminal cases in the district courts ofhisdistrict, except incases where hehas been, before his election, employed adversely. Article 2.02ofthe Code ofCriminal Procedure provides that:

The county attorney shall attend the terms of court in his county below the grade ofdistrict court, andshall represent the State in all criminal cases under examination orprosecution in said county; and in the absence of the district attorney heshall represent the State alone and, when requested, shall aid the district attorney in the prosecution of any case inbehalf ofthe State inthe district court. See Garcia v.Laughlin, 285S.W.2d 191(Tex. 1955);Maudv.Terrell, 200S.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 inprosecutions ofoffenses 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 inprosecuting 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 didnot purport to deprive county attorney of his authority); Allen v. Fisher, 9S.W. 2d731(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 adistrict 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 isprovided with implicit consent ofAttorney General). Wethink this question must be answered inthe negative. While webelieve 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 ifthe legislature clearly authorizes it to doso.

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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 doso. But webelieve that this conclusion follows from the discussion and approach taken therein. In Maud v. Terre& e, for example, the court stated that:

. . . ITIhe powers thus conferred by the Constitution uponthese

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 isthe constitutional right ofthe Attorney-General andthe 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). 200S.W.at 376. InState Board ofDental Examiners v.Bickham, 203S.W.2d563(Tex. Civ. App.- Dallas 1947,no writ), which involved an appeal from an order ofthe board suspending Bickham’s license topractice 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 inthe enforcement ofthe law pertaining to unlawful practice ofdentistry. (Emphasis added). Other relevant cases and Attorney General Opinions seem clearly to assume that such statutory authority isaprerequisite; infact, the question inmost ofthem waswhether 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, 519S.W.2d426 (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 aprivate attorney ispermitted to participate ina 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 beretained.

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

(a) The department may file complaints in the name ofthe 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 the laws proceedings against an individual for violation 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 doso. Wedecline to construe section 12.105this broadly. Were weto doso, 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 42ofthe act provides that:

Prior to expenditure offunds 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, 192S.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 arequirement which must be met before an agency which is authorized to employ outside counsel may use appropriated ftmds to doso. See Attorney General Opinions MW-255,MW-191 (1980). -

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SUMMARY Absent statutory authority permitting it to doso, 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. Nosuch statutory authority exists.

MARK WHITE Attorney General ofTexas JOHN W.FAINTER, JR. First Assistant Attorney General RICHARD E.GRAYIII Executive Assistant Attorney General Prepared byJon Bible Assistant Attorney General APPROVED: OPINION COMMITTEE Susan L.Garrison, Chairman Jon Bible Timothy L.Brown Rick Gilpin Jim Moellinger

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