9RKWHITE torney General 

# The .Attorney General of Texas May 25, 1979

Honorable Chet Brooks, Chairmen Opinion No. W-24 Senate Committee onHuman 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 inlitigation 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, S18-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 Aand Cof this title [of the Family Code1

. A constitutional question has arisen in light ofprovisions of the Texas Constitution. Article 4, section 22provides: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 maybeproper nncincccsstlry 10prcvenl !my private corporation from exercising any power or denmnding or collecting eny Species Oftaxes, tolls, freight or wharfage not authorized by law. He shell. whenever sufficient cause exists, seek Ajudicial 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 bylaw.

.. . (Asemended Nov. 2, 1954,end Nov.7, 1972.) (Emphasis added). Article 5,section 21provides:

sec. 21.

. ..The County Attorneys shell represent the Slate inall cases in the District end inferior courts in their respective counties; but if any county shall be included in e district inwhich there shell be a District Attorney, the respective duties of District Attorneys and County Attorneys shell insuch counties be regulated bythe 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.Zd738 (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, 112S.W.2d,287 (Tex. Civ. App. - Eastland 1937,~ no writ); Allen v. Fisher, 9S.W.2d 731(Tex. 1928);Hancock v. Em& 195S.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 incourt. The catitution gives the Attorney General authority to represent the department. He cannot constitutionally be deprived ofhis authority to control the litigation. See State v. Moore, 57Tex. 307 (1882). Solong 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, SS18-B(b)(3),(e); General Appropriations Act, Acts 1977,65th Legzh. 872, art. V,S41,et 3160(co+~rtrepresentetive of the state) and S42, et 3161(permitting outside counsel); Taylor v. Texas Department of Public Welfare, 549S.W.2d422 (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. 74Honorable Chet Brooks - Page Three (IQ+24)

Postell v. Texas Department of Public Welfare, 549 S.W.Zd425 (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 aperson 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 ‘thecounty 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 inquestion 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). Wefeel 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 isnot 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, 190S.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, ~285S.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.

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MARK WHITE Attorney General ofTexas
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 GReid David Young Bruce Youngblood

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