November 23,‘1g66 

Hon. Crlss Cole, Chairman Opinion No. C-782 

Senate Committee Study of 

Nursing Profession Needs 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 stated matter, We quote from your letter as follows: 

"As Chairman 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 

'shall retain legal counsel' to represent that 

agency. 

"I have particular reference to a state 

agency that would be a licensing agency. 

Example: Board of Nurse Examiners. 

"We are 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 language written 

into an Act by amendment would be legal. 

- 

"Of course many of us'have long felt that 

the Attorney General of Texas is the attorney 

for all state agencies." 

-3750- 
Hon. Crlss Cole, page 2 (C-782) 

In 1947 this office rendered an opinion (V-403) for 

the Honorable R. G. Hughes, Chairman, State Board of Plumbing 

Examiners, to the effect that there was no express or Implied 

authority In the Plumbing License Law for the board to have its 

own legal department for counsel and enforcement purposes. The 

basis for Attorney General's Opinion V-403 Is the fact that 

the Plumbing License Law did not expressly provide for the 

agency having Its own legal counsel, and that the constitutional 

provisions relating to the powers of the Attorney General and 

the district and county attorneys to represent the state negated 

any implied powers in the board to engage its own legal department. 

That opinion did not answer the question presented 

here, I.e. whether the Legislature may expressly provide 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, 

"The Attorney General shall hold office 

for two years and until his successor Is duly 

qualified. He shall represent the State in all 

suits and pleas in the Supreme Court of the State 

in which the State may be a party, . . .and give 

legal advice in writing to the Governor and other 

executive officers, when requested by them, and 

erform such other duties as may be requiredby 

- aw. . . ." (Emphasis added) 

provides: 

Section 21 of Article V, Vernon's Texas Constitution, 

” .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 b I 1 d d i district in which 

there shall beea %&&t it:orney, the respective 

duties of District Attorneys and County Attorneys 

shall in su$h counties be regulated by the Legislature. . . . (Emphasis added) 

The Supreme Court of Texas in Maud 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 Constitution7 by 

Section 21 of Article 5, lodges with thF County 

-3751- 
Hon. Criss Cole, page 3 (C-782) . 

Attorneys the duty of representing the State 

in all cases in the district and inferior courts, 

with the right in the Legislature to regulate by 

law the respective duties of district and county 

attorneys where a county Is Included In a district 

having a district attorney; and by Section 22 of 

Article 4 that duty as to suits and pleas In the 

Supreme Court is confided to the Attorney-General. 

With the llmltatlon existing In the authority of 

the Legislature, under Section 22 of Article 4, 

to create ad.ditional causes of action in favor 

of the State and lntrust their prosecution, 

whether In the trial or In the appellate courts, 

solely to the Attorney-General, the powers thus 

conferred by the Constitution upon these officials 

are exclusive. The Legislature cannot devolve 

them upon others, nor can It Interfere with 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 & 

Great Northern Railroad Co.. 89 Tex. 562, 35 S.W. 

Subsequent to the case of Maud v. Terrell, supra, 

there has been considerable litigation over whether the county 

and district attorneys or the Attorney General would represent 

the State in various DPOCeedimS in the trial or aupellate COUrtS. 

Staples v. State ex r'el Kin ii2 Tex. 61, 245 s.w‘.m639 (1922); 

Allen v. Fisher, 118 Tex. 3 

Downs v. Harvey, 164 S.W.2d 55 

9 S.W.W 731 (1928);.State ex 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 B oard 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 constitutional provisions, leads us to the conclusion that the legislature has.the power and may authorize a 

state agency to retain its own legal counsel. However, the 

legislature cannot authorize a state agency to retain legal 

counsel to represent the agency In the courts since the Constitution places this duty upon the county and distrlc,t attorneys or the Attorney General. 

To state it another way, It Is our opinion that 

the legislature may authorize a state agency to have its own 

nhouse counseln but the Constitution prescribes that the 

county and district attorneys or the Attorney General shall 

represent the state (agencies) In the courts. 

SUMMARY 

The Legislature may 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 Constitution places this duty upon 

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 

Harold Kennedy 

Pat Bailey 

Ralph Rash 

APPROVED FOR THE ATTORNEY GENERAL 

BY: T. B. Wright 

-3753-