November 23,‘1g66

Hon. Crlss Cole, Chairman OpinionNo. C-782 Senate Committee Study of Nursing ProfessionNeeds Re: Capitol Building Whether it is legal for the laws concerning the Austin, Texas actions of a Texas state agency to provide that an agency shall retain legal counsel to represent that Bear Senator Cole: agency.

**YOU** have requested an opinion from this office on the above statedmatter, We quote from your letter as follows:

"AsChairman of this Senate Committee sttidying

nursing profession needs in the State of Texas, I request that you furnish the committee an opinion as to whether it is legal for the laws concerning the actions of a Texas state agency to state that an agency 'shallretain legal counsel' to represent that agency. "Ihave particular reference to a state agency that would be a licensing agency. Example: Board ofNurse Examiners.
"Weare concerned as to,the legality of the statutes, or Act creating the agency and giving provisions by which this agency shall operate, saying that this agency shall retain its own legal counsel to represent that agency. Our question is whether such languagewritten into an Act by amendmentwould be legal.
- "Of coursemany ofus'have long felt that the Attorney General of Texas is the attorney for all state agencies."

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In 1947 this office rendered an opinion (V-403) for the HonorableR. G. Hughes, Chairman, StateBoard of Plumbing Examiners, to the effect that therewas no express or Implied authority In the Plumbing License Law for the board to have its own legaldepartment for counsel and enforcementpurposes. The basis forAttorney General's OpinionV-403 Is the fact that the PlumbingLicense Law did not expresslyprovide for the agencyhaving Its own legal counsel, and that the constitutional provisionsrelating to the powers of the Attorney General and the district and county attorneys to represent the statenegated any impliedpowers in the board to engage its own legaldepartment. That opinion did not answer the questionpresented here, I.e.whether the Legislaturemay expresslyprovide that an agency may have its own legal counsel to represent the agency in court.
provides: Section 22 of Article IV, Vernon's Texas Constitution,

"TheAttorney General shallhold office for two years and until his successor Is duly qualified. He shall represent the State in all suitsand pleas in the Supreme Court of the State inwhich the State may be a party,
. . .andgive legal advice in writing to the Governorand other executive officers, when requestedby them, and erform such other duties as may be requiredby aw. . . ." (Emphasisadded) - provides: Section 21 of Article V, Vernon's Texas Constitution,

” .TheCounty Attorneys shallrepresent the State in all cases In the Districtand inferior courts in their respective counties;but if any county shallb I 1 d d i district inwhich there shallbeea %&&t it:orney, the respective duties of District Attorneys and CountyAttorneys shall in su$h counties be regulatedby the Legislature.
. . . (Emphasisadded) The Supreme Court of Texas inMaud v. Terrell, 109 Tex. 97, 200 S.W. 375 (1918) construed the above quoted sions of our Constitution. The Court at page 376 stated: provi-

"That instrument, fihe Constitution7by Section 21 of Article 5, lodgeswith thF County

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.

Attorneys the duty of representing the State in all cases in the district and inferior courts, with the right in the Legislature to regulateby law the respective duties of district and county attorneyswhere a county Is Included In a district having a district attorney; and by Section 22 of Article 4 that duty as to suits andpleas In the Supreme Court is confided to the Attorney-General. With the llmltatlon existing In the authority of theLegislature, under Section 22 of Article 4, to create ad.ditionalcauses of action in favor of the State and lntrust their prosecution, whether In the trial or In the appellate courts, solelyto the Attorney-General, the powers thus conferredby the Constitution upon these officials are exclusive. The Legislature cannotdevolve themupon others, nor can It Interferewith the rl ht to exercise them 368, 89 S.W. 1052; Brady v. Harris County v

Brooks, 99 Tex. Stewart, 91 Tex. 133, 41 S.W. 650; State v. International& GreatNorthern Railroad Co.. 89 Tex. 562, 35 S.W.

Subsequent to the case of Maud v. Terrell, supra, therehas beenconsiderable litigation overwhether the county and district attorneys or the Attorney Generalwould represent the State in various DPOCeedimS in the trial or aupellate COUrtS. Staples v. State ex r'elKin ii2 Tex. 61, 245 s.w‘.m639(1922); Allen v. Fisher, 118 Tex. 3 Downs v.Harvey, 164 S.W.2d 559 S.W.W 731 (1928);.Stateex rel (Tex.Clv.App. 1942,writ ref w.0.m.); State ex rel Hancock v. App. 1946,writ Ennls, 195 S.W.2d 151 (Tex:Civ. f I-Stt Board of Dental Examiners v. Blckham, 203 ~"W:2~'~~~'(~ex.~i~.App. 1947 h) St Walker-Texas Investment Co., 325 S.W.2d 209 (T:x:CI;.~p.$$$'!$+

-3752-Hon. Criss Cole, page 4 (C-782)

affm'd in Smith v. State, 160 Tex. 256, 328 S.W.2d 294 (1959).

_ An analysis of the above quoted cases, which construe the applicable constitutionalprovisions, leadsus to the conclusion that the legislaturehas.the power andmay authorize a stateagency to retain its own legal counsel. However, the legislature cannot authorizea state agency to retain legal counsel to represent the agency In the courts since the Constitutionplaces this duty upon the county and distrlc,tattorneys or the Attorney General.

To state it another way, It Is our opinion that the legislaturemay authorize a state agency to have its own nhouse counselnbut the Constitutionprescribes that the county and district attorneys or the Attorney General shall represent the state (agencies)In the courts. SUMMARY The Legislaturemay provide that a state agency retain its own legal counsel. However, the Legislature cannot authorize a state agency's legal counsel to represent the agency In court, since the Constitutionplaces this dutyupon the county and district attorneys or the Attorney General. Art. IV, Sec. 22 and Art. V, Sec. 21, Tex. Const. Yours very truly,
WAGGONER CARR Attorney General

JCMcC:sck:mkh
APPROVED: OPINION COMMITTEE Assistant 

# “I.

W. 0. Shultz, Chairman John Reeves HaroldKennedy PatBailey Ralph Rash APPROVED FOR THE ATTORNEY GENERAL BY: T. B. Wright

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