9RK WHITE 

torney General 

The .Attorney General of Texas 

May 25, 1979 

Honorable Chet Brooks, Chairmen Opinion No. W-24 

Senate Committee on Human Resources 

Senate Chamber Re: Constitutionality of legislaAustin, Texas 78711 tion to permit the Department of 

Human Resources to represent the 

state in court in child support 

collection cases 

Dear Senator Brooks: 

You have asked whether e stnff attorney employed by the Department 

of Human Resources may constitutionaLly be given the statutory authority to 

represent the department in litigation seeking child support collection. The 

bill, Senate Bill 698, e introduced, would provide: 

Attorneys employed by the Texas Department of 

Human Resources may represent the department in 

any suit to collect child support or determine 

paternity brought under the authority of [art. 695c, 

S 18-B, V.T.C.S.]: At the request of the Texas 

Department -of Human Resources, the Attorney 

General shall represent the department in any appeal 

of a suit brought under the authority of this section. 

The legislation would also amend section ll.20 of the Texas Family 

Code and provide: 

At the request of the Texas Department of Human 

Resources, the county or district attorney of the 

county in which the suit is filed or transferred or the 

attorney general shell represent the department in 

any suit brought under Subtitles A and C of this title 

[of the Family Code1 . 

A constitutional question has arisen in light of provisions of the Texas 

Constitution. Article 4, section 22 provides: 
Honorable Chct Brooks - Page: Two (rlI+-24) 

Sec. 22. ‘l’hr! Allorncy Gcwerol . . . shall represent the State in ~11 

suits and plc~s in the. Supreme Court of the Stale in which the 

Stnte may hr a p~~rty, nnd ~11~111 espccinlly inquire into the charter 

rights of aII privrlte corportitions, and from lime to lime, in the 

no&e of lh? SlsLe. take stlch action in the courts as may be proper 

nnci ncccsstlry 10 prcvenl !my private corporation from exercising 

any power or denmnding or collecting eny Species Of taxes, tolls, 

freight or wharfage not authorized by law. He shell. whenever 

sufficient cause exists, seek A judicial forfeiture of such charters, 

unles 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 es may be 

required by law. . . . (As emended Nov. 2, 1954, end Nov. 7, 1972.) 

(Emphasis added). Article 5, section 21 provides: 

sec. 21. . . . The County Attorneys shell represent the Slate in all 

cases in the District end inferior courts in their respective 

counties; but if any county shall be included in e district in which 

there shell be a District Attorney, the respective duties of District 

Attorneys and County Attorneys shell in such counties be regulated 

by the Legislature.. . . 

The conclusion drawn from a long history on cese law indicates that the above officials 

alone have the constitutional authority to rcprcsenl the state. Hill V. Texas Water Quality 

Board, 568 S.W.Zd 738 (Tex. Civ. App. - Austin 1978, writ t%zf’d n.r.e.); Brady v. Brooks, 

89 S.W. 1052 (Tex. 1905); Agey v. American Liberty Pipeline Co., 172.S.W.2d 972 (Tex. 

1943); Ademson v. Connally, 112 S.W.2d, 287 (Tex. Civ. App. - Eastland 1937,~ no writ); 

Allen v. Fisher, 9 S.W.2d 731 (Tex. 1928); Hancock v. Em& 195 S.W.2d 151 (Tex. Civ. App. 

San Antonio 1946, writ ref’d n.r.e.); Attorney General Opinion M-856 (1971). However, 

this construction of the constitution does not require the Attorney General, district or 

counly’ettorney, or authorized %wistnnts, always to sign court papers as attorney of 

record and actually litigate the suit in court. 

The catitution gives the Attorney General authority to represent the department. 

He cannot constitutionally be deprived of his authority to control the litigation. See State 

v. Moore, 57 Tex. 307 (1882). So long as the Attorney General has continuing authority 

intervene and control the lawsuit, the proposed legislation is constitutional. Meud v. 

Terrell, 200 S.W. 375 (Tex. 1918); Chnrles Scribner’s Sons v. Merrs, 262 S.W. 722(Tex. 

1924);Genernl Appropriations Act, Acts 1977, 65th Leg., ch. 872 et 2777. Representation 

by the department’s staff attorneys would be construed to be with the implicit consent of 

the Attorney General. .See V.T.C.S. nrt. 895c, SS 18-B(b)(3), (e); General Appropriations 

Act, Acts 1977, 65th Legzh. 872, art. V, S 41, et 3160 (co+~rt representetive of the state) 

and S 42, et 3161 (permitting outside counsel); Taylor v. Texas Department of Public 

Welfare, 549 S.W.2d 422 (Tex. Civ. App. - Fort Worth 1977, writ ref’d n.r.e.) (untimely 

objection that representation by department attorney violated article V, section 21); 

p. 74 
Honorable Chet Brooks - Page Three (IQ+24) 

Postell v. Texas Department of Public Welfare, 549 S.W.Zd 425 (Tex. Civ. App. Fort 

Worlh 1977, writ ref’d n.r.e.); cf. Collins v. State, 506 S.W.2d 293 (Tex. Civ. App. San 

Antonio 1973, no writ); Attorneaeneral Opinion M-249 (1968). 

The court in Maud v. Terre11 upheld a statute which permitted the Comptroller to 

employ a person to handle suits for state inheritance taxes. The court said: 

The test, therefore, to be used in determining the validity of this 

Act is simply whether by plain and unambiguous language it 

deprives ‘the county attorneys. . . of their authority to prosequte in 

the courts suits by the State for the recovery of inheritance taxes. 

. . . . 

[The provisions of the statute] do not unequivocally supplant the 

county attorneys . . . in their authority to prosecute the suits of the 

State for the recovery of the taxes. . . . 

Id. at 376-377. The court went on to say that the statute in question did not “exclude the 

=a. that [prosecution of the law suit] shall be in subordination to the authority of ,the 

county attorney.” E at 377. See also Attorney General Opinion M-866 (1971). We feel 

the court’s reasoning to be equally applicable here. 

The constitutional authority of the Attorney General to represent the state cannot 

be diminished by the proposed legislation. The committee substitute indicates that the 

Act is not to be interpreted to limit the authority of the Attorney General to represent 

the state in any proceeding. Accordingly, we believe the proposed statute is 

constitutional. Our decision makes it winecessary to discuss the concurrent authority of 

county or district attorneys to represent the state in district or inferior courts. See 

Magnolia Petroleum Co. v. State, 190 S.W.2d 581 (Tex. Civ. App. - Austin 1945, no wrq 

State Board of Dental Examiners v. Bickham, 203 S.W.2d 563 (Tex. Civ. App. - Dallas 

1947, no writ); Garcia v. Laughlin, ~285 S.W.2d 191.(Tex. 1955); Moore v. Bell, 66 S.W. 45 

(Tex. 1902); State v. Moore, =a; Sheppard v. Alaniz, 303 S.W.2d 846 (Tex. Civ. App. 

San Antonio1957,m; State v. Walker-Texas Investment Co., 325, S.W.2d 209 (Tex. 

Civ. App. - San Antonio),- (Tex. 1959); Attorney 

General Opinion H-343 (1974). 

Attorney General Opinion C-782 (1966) Is overruled to the extent that it Is 

inconsistent with this opinion. 

SUMMARY 

Staff attorneys for the Department of Human Resources may 

constitutionally represent the department in court subject to 

supervisory control of the Attorney General. 

p. 75 
Honorable Chet Brooks - Page Four (NW-24 ) 

MARK WHITE 

Attorney General of Texas 

JOHN W. FAINTER, JR. 

First Asaistnnt Attorney General 

TED L. HARTLEY 

Executive Assistant Attorney General 

Prepared by David B. Brooks 

Assistant Attorney General 

APPRPVED: 

OPINION COMMITTEE 

C. Robert Heath, Chairman 

David B. Brooks 

Susan Garrison 

Rick Gilpin 

William G Reid 

David Young 

Bruce Youngblood 

p. 76