September 22, 1987 

Mr. William M. Hale Opinion No. JM-791 

Executive Director 

Texas Comission on Human Rights 

P. 0. Box 13493 

Austin, Texas 78711 

Re: Authority of the Attorney 

General to represent the Texas 

Commission on Human Rights 

Dear Mr. Hale: 

You request an opinion on the authority of the attorney general 

to represent the Texas Commission on Euman Rights 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, 

42 U.S.C. §ZOOOe et seq.; V.T.C.S. art. 5221k. 91.02(l). 

The commission consists of six members appointed by the 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 a political subdivision 

which has created a local commission of human relations 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.], and file civil actions to effectuate the purposes 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 to bring civil action). 

The comrrission is a state agency with authority to bring civil 

suits to carry out the purposes of article 5221k, V.T.C.S. The 

Commission on Human Rights Act does not expressly state that the 

attorney general shall represent the commission. It provides that the 

cormnission has power 

to employ an executive director and authorize the 

employment of other staff members, including 

any necessary 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.) 

p. 3741 
Mr. William M. Hale - Page 2 (JM-791) 

V.T.C.S. art. 5221k, §3.02(3). Prior opinions have determined that 

similar provisions do not limit the constitutional authority of the 

attorney general to represent the state in court, and that staff 

attorneys of a state agency may appear in court for the agency 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 to represent the state. Maud v. Terrell, 200 S.W. 375 (Tex. 

1918). Article IV, section 22, of the Texas Constitution provides in 

part: 

The Attorney General . . . &all represent the 

State in all suits and pleas in the Supreme Court 

of the State in which thm e State may be a party, 

and shall esueciallv inouire into the charter 

rights of all private corporations, and from time 

to time, in the name of the State, take such 

action in the courts as may be proper and 

necessary to prevent any private 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, and give legal advice 

in writing to the Governor and other executive 

officers, when requested by them, and perform 

such other duties as may be required by law. . . . 

(Emphasis added.) 

Article 4395, V.T.C.S., provides that 

[t]he Attorney General shall prosecute and defend 

all actions in the Supreme Court or the Courts 

of Civil Appeals in which the State may be 

interested. 

1. This provision has been recodified as section 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. 

p. 3742 
Mr. William M. Hale - Page 3 (JM-791) 

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

part: 

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. 

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 may not 

confer them on others or interfere with the right to exercise them. 

Maud V. Terrell, m; Hill County v. Sheppard, 178 S.W.Zd 261 (Tex. 

1943); Brady v. Brooks, 89 S.W. 1052 (Tex. 1905); State v. Moore, 57 

Tex. 307 (1882). 

Article V, section 21 places on the 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 

the Attorney General. 

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

co.. 325 S.W.Zd 209 (Tex. Civ. App. - San Antonio), 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 Maud v. 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. 

In Walker-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 on behalf 

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 the constitution. The court 

of civil appeals discussed case law in detail and concluded that 

p. 3743 
Mr. William M. Hale - Page 4 (m-791) 

_. 

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

statute, the legislature 

created a cause 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 

of the county in which the suit 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, no reversible 

error, in a per curiam opinion which included the following statement: 

Under the holding of this Court in Maud v. 

Terrell, 109 Tex. 97, 200 S.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 to prosecute such cause of action 

in both the trial and appellate courts of the 

State. 

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

The Texas 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. We assume 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 a new cause of action which may 

be brought in district court by the attorney general or by other 

attorneys subject to his supervision and control. See Maud v. 

Terrell. supra; State v. Walker-Texas Investment Co., E. Since 

article 5221k is administered by a state agency, and since the cause - 

of action it creates is a matter 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 to assign attorney general additional duties, 

may authorize 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 

p. 3744 
Mr. Willian kl. Eale - Page 5 (JM-791) 

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. - San Antonio 1942, writ 

ref d w.0.a.) (purely local action to remove sheriff should have been 

brought by district 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 on Human Rights in 

litigation under article 5221k, V.T.C.S. Any 

staff attorney or other attorney employed by the 

connnission may represent the commission in court 

only subject to the supervision and direction of 

the attorney general. 

JIM MATTOX 

Attorney General of Texas 

MARY KKLLER 

Executive Assistant Attorney General 

JUUGE ZOLLIE STEAKLEY 

Special Assistant Attorney General 

RICK GILPIN 

Chairman, Opinion Cormaittee 

Prepared by Susan L. Garrison 

Assistant Attorney General 

p. 3745