The Attorney General of Texas 

May 26, 1981 

MARK WHITE 

Attorney General 

Honorable Bennie Bock II 

Chairman 

Opinion No. MW-340 

Committee on Environmental Affairs Re: Whether Texas Parks and 

House of Representatives 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 a state 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. 

You ask whether the department may: 

contract with a private attorney to prosecute shrimp 

and confiscation cases and other wildlife infringements of the law to aid parks and wildlife. 

You advise that prosecutions of game laws have heretofore been undertaken 

by local district attorneys’ offices. 

Violations of the Parks and Wildlife Code provisions relating to wildlife 

and marine life constitute misdemeanors or felonies, which call for a fine 

and, in some instances, a jail sentence. See e. 

SS6L901, 66.106, 76.037, 76.216, 77.020, 78. 17i+I%i%Zsa~~o?Zi~tCs~~ 

violations are therefore guilty of criminal offenses. See also Penal Code 

SSl.OS(b) (classification of offenses outside Penal CodeJml6 Tex. Jur. 

2d Criminal Law SSl-6. 

Texas law places the responsibility for representing the state in 

prosecutions of criminal cases in the district and inferior courts in the 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 be regulated by the Legislature. 

p. 1117 
Honorable Bennie Bock II - Page Two (~~-340) 

Article 2.01 of the Code of Criminal Procedure provides that: 

Each district attorney shall represent the State in all criminal 

cases in the district courts of his district, except in cases where 

he has been, before his election, employed adversely. 

Article 2.02 of the Code of Criminal Procedure provides that: 

The county attorney shall attend the terms of court in his 

county below the grade of district court, and shall represent the 

State in all criminal cases under examination or prosecution in 

said county; and in the absence of the district attorney he shall 

represent the State alone and, when requested, shall aid the 

district attorney in the prosecution of any case in behalf of the 

State in the district court. 

See Garcia v. Laughlin, 285 S.W. 2d 191 (Tex. 1955); Maud v. Terrell, 200 S.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 in prosecutions of offenses 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 in prosecuting 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 did not purport to 

deprive county attorney of his authority); Allen v. Fisher, 9 S.W. 2d 731 (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 a district 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 is provided with implicit consent of Attorney General). 

We think this question must be answered in the negative. While we believe 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 if the legislature clearly authorizes it to do so. 

p. 1118 
L . 

Honorable Bennie Bock II - Page Three (~~-340) 

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 do so. But we believe that this conclusion follows from the discussion 

and approach taken therein. In Maud v. Terre& e, for example, the court stated 

that: 

. . . ITI he powers thus conferred by the Constitution upon these 

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 is the 

constitutional right of the Attorney-General and the 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). 

200 S.W. at 376. In State Board of Dental Examiners v. Bickham, 203 S.W. 2d 563 (Tex. 

Civ. App. - Dallas 1947, no writ), which involved an appeal from an order of the board 

suspending Bickham’s license to practice 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 in the enforcement of the law pertaining to 

unlawful practice of dentistry. (Emphasis added). 

Other relevant cases and Attorney General Opinions seem clearly to assume that such 

statutory authority is a prerequisite; in fact, the question in most of them was whether 

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, 519 S.W. 2d 426 (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 a private attorney is permitted to participate in a 

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 be retained. 

p. 1119 
Honorable Bennie Bock II - Page Four (~~-340) 

It has been suggested that section 12.105 of the Parks and Wildlife Code affords 

the required authority. That section provides as follows: 

(a) The department may file complaints in the name of the 

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 

proceedings against an individual for violation the laws 

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 do so. 

We decline to construe section 12.105 this broadly. Were we to do so, 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 42 of the act provides that: 

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 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, 192 S.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 a requirement 

which must be met before an agency which is authorized to employ outside counsel 

may use appropriated ftmds to do so. See Attorney General Opinions MW-255, MW-191 

(1980). 

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p. 1120 
Honorable Bennie Bock II - Page Five (~~-340) 

SUMMARY 

Absent statutory authority permitting it to do so, 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. No such statutory authority 

exists. 

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 

Assistant Attorney General 

APPROVED: 

OPINION COMMITTEE 

Susan L. Garrison, Chairman 

Jon Bible 

Timothy L. Brown 

Rick Gilpin 

Jim Moellinger 

p. 1121