September 22, 1987

Mr.William M.Hale Opinion No. JM-791 Executive Director Texas Comission onHumanRights P. 0. Box 13493 Austin, Texas 78711 Re: Authority of the Attorney General torepresent the Texas Commission onHumanRights

DearMr.Hale:

Yourequest anopinion on the authority of the attorney general torepresent theTexas Commission onEumanRights in litigation under article 5221k, V.T.C.S., the Commission on &man Rights Act. This statute was enacted to implement federal policies against employment discrimination embodied in title VII of the Civil Rights Act of 1964, 42U.S.C. §ZOOOeet seq.; V.T.C.S. art. 5221k. 91.02(l).

Thecommission consists of six membersappointed bythe governor with the advice and consent of the senate. V.T.C.S. art. 5221k, 03.01(a). The commission has authority to meet and exercise its powers anywhere within the state, except in apolitical subdivision which has created a local commission of humanrelations pursuant to sections 4.01 through 4.04 of article 5221k, V.T.C.S. See Attorney General Opinion Nos. JM-275. JM-228 (1984) (local human rights commissions). The commission may "receive, investigate, seek to conciliate, and pass on complaints alleging violations of [article 5221k, V.T.C.S.], andfile civil actions toeffectuate thepurposes of this Act." V.T.C.S. art. 5221k, §3.02(6); sea also V.T.C.S. art. 5221k. 57.01(a) (commission's power tobring civil action).

The comrrission is astate agency with authority to bring civil suits to carry out the purposes of article 5221k, V.T.C.S. The Commission on HumanRights Act does not expressly state that the attorney general shall represent the commission. It provides that the cormnission haspower

to employ anexecutive director andauthorize the employment of other staff members, including anynecessary attorneys or clerks and other representatives or agents, and to fix the compensation of the executive director or other staff members, representatives, or agents. (Emphasis added.)

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V.T.C.S. art. 5221k, §3.02(3). Prior opinions have determined that similar provisions donot limit the constitutional authority of the attorney general to represent the state in court, and that staff attorneys ofastate agency mayappear incourt for theagency only in subordination to the authority of the attorney general. Attorney General Opinion MW-24(1979) ; see also Attorney General Opinion Nos. JM-28 (1983); H-268 (1974); C-782 (1966) (overruled in part by Attorney General Opinion MW-24).

The courts have interpreted the constitution to confer upon the attorney general and the county or district attorney the exclusive authority torepresent the state. Maudv. Terrell, 200S.W. 375 (Tex. 1918). Article IV, section 22, of the Texas Constitution provides in part:
TheAttorney General

. . .&all represent the

State in all suits andpleas in the SupremeCourt of the State in which thm eState maybe aparty, and shall esueciallv inouire into the charter rights of all private corporations, andfrom time to time, in the name of the State, take such action in the courts as may be proper and necessary to prevent anyprivate 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, andgive legal advice in writing to the Governor and other executive officers, when requested by them, and perform suchother duties asmayberequired bylaw.

. . . (Emphasis added.)

Article 4395, V.T.C.S., provides that
[t]he Attorney General shall prosecute anddefend all actions in the Supreme Court or the Courts ofCivil Appeals in which the State may be interested.

1. This provision has been recodified assection 402.021 of the Government Code, which became effective September 1, 1987. Acts 1987, 70th Leg., ch. 147. 501, 8, at 648, 1064. The recodification substitutes “courts of appeals” for “Courts of Civil Appeals.” Id.
- 41, at 648, 659.

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Article V, section 21, of the Texas Constitution provides in part:

TheCounty Attorneys shall represent the State in

all cases in the District andinferior courts in their respective counties; but if anycounty shall be included inadistrict inwhich there shall be
a District Attorney, the respective duties of District Attorneys and County Attorneys shall in such counties beregulated bytheLegislature.

Texas courts have held that the powers conferred by these constitutional provisions on the~attorney general and the county or district attorney are exclusive, and that the legislature maynot confer themonothers or interfere with the right to exercise them. MaudV. Terrell, m; Hill County v. Sheppard, 178S.W.Zd 261 (Tex. 1943); Bradyv. Brooks, 89S.W. 1052 (Tex. 1905); State v. Moore, 57 Tex. 307 (1882).

Article V, section 21places onthe county attorney the duty to represent the state in district and inferior courts, but the legislature has authority under article IV, section 22

to create additional causes of action in favor of the State and intrust their prosecution, whether in the trial or in the appellate courts, solely to theAttorney General.

Maudv. Terrell, 200 S.W. at 376; State v. Walker-Texas Investment

co.. 325S.W.Zd 209 (Tex. Civ. App. - SanAntonio), writ ref'd n.r.e. per curiam sub nom. Smith v. State, 328 S.W.Zd 294 (Tex. 1959) (relying on and explaining quoted language from Maudv. Terrell). Thus, even though article IV, section 22 expressly refers only to suits and pleas-in the supreme court, this constitutional provision authorizes the legislature to extend the attorney general's representation of the state to the lower courts. The opinions in State v. Walker-Texas Investment Co., w, discuss this legislative authority under article IV, section 22.

InWalker-Texas Investment Co., the attorney general brought suit in district court to enjoin defendant company from charging usurious interest. He acted under the express authority of former article 4646b, V.T.C.S., Acts 1943, 48th Leg., ch. 144. at 228. Defendants contended that the attorney general could not bring the suit onbehalf of the state without the joinder of the district or county attorney and that article 4646b. V.T.C.S.. was unconstitutional because it conflicted with article V, section 21, of theconstitution. Thecourt of civil appeals discussed case law in detail and concluded that

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_. article 4646b, V.T.C.S., was constitutional.

statute, the legislature

created acause of action in favor of and authorized the Attorney General to In enacting that

the State bring and prosecute such an action in the district and inferior courts without the necessity of being joined by either the District or County Attorney ofthe county inwhich thesuit is filed.

State v. Walker-Texas Investment Co., 325 S.W.Zd at 212-13. The supreme court refused the application for writ of error, noreversible error, inaper curiam opinion which included the following statement:

Under the holding of this Court in Maudv. Terrell, 109Tex. 97, 200S.W. 375, it is clear that when the Legislature creates a new or additional cause of action in favor of the State it may also constitutionally authorize the Attorney General toprosecute such cause ofaction in both the trial and appellate courts of the State.

Smithv. State, 328S.W.2d 294, 295 (Tex. 1959).

TheTexas Constitution places in the attorney general and the district or county attorney the exclusive power to represent the state. Article 5221k, V.T.C.S.. would be unconstitutional if it allowed any other attorney to represent the state, except in subordination to the attorney designated by the relevant constitutional provision. Weassume that the legislature intended to enact a constitutional statute. See Gov't Code 1311.021(l). We therefore must read article 5221k. V.T.C.S., together with the constitutional provisions we have discussed. In article 5221k, V.T.C.S., the legislature has created anewcause of action which may be brought in district court by the attorney general or by other attorneys subject to his supervision and control. See Maudv. Terrell. supra; State v. Walker-Texas Investment Co., E. Since article 5221k is administered byastate agency, andsince the cause - of action it creates is amatter of statewide concern, the attorney general and not the district or county attorney is the appropriate officer to represent the commission in civil actions. See generally Brady v. Brooks, 89 S.W. 1052 (Tex. 1905) (legislature, under constitutional authority toassign attorney general additional duties, mayauthorize him to sue for delinquent gross receipts taxes and penalties in district court); Hill V. Texas Water Quality Board, 568 S.W.Zd 738 (Tex. Civ. App. -Austin 1978, writ ref'd n.r.e.) (attorney general has the exclusive right and power to represent state agencies); Shepperd v. Alanis, 303 S.W.Zd 846 (Tex. Civ. App. - San

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Antonio 1957, no writ) (it is principal function of district and county attorneys to prosecute the violations of criminal law); State
v. Barney. 164 S.W.Zd 55 (Tex. Civ. App. - SanAntonio 1942, writ ref dw.0.a.) (purely local action toremove sheriff should have been brought bydistrict or county attorney ,not attorney general) (holding approved in Garcia v. Laughlin, 285 S.W.Zd 191 (Tex. 1955)). Any staff attorney or outside attorney employed by the commission may represent the commission in court only subject to the supervision and direction of the attorney general.

SUMMARY

The attorney general has authority to represent the Texas Commission onHumanRights in litigation under article 5221k, V.T.C.S. Any staff attorney or other attorney employed by the connnission mayrepresent the commission in court only subject to the supervision anddirection of theattorney general.

JIM MATTOX Attorney General ofTexas

MARYKKLLER Executive Assistant Attorney General

JUUGEZOLLIESTEAKLEY Special Assistant Attorney General

RICKGILPIN Chairman, Opinion Cormaittee Prepared bySusanL. Garrison Assistant Attorney General

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