### THE ATTORNEY GENEXAL OF EXAS

September 18, 1987

HonorableJohnW. Berry Karnes CountyAttorney Karnes County Courthouse Karnes City,Texas 78118 OpinionNo. JM-788

Re: Whether a countymay expend funds to oppose an application to amend a radioactivematerials license

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P Dear Mr. Berry:

You ask three questions regarding the authority of Karnes County to opposean applicationto amend a radioactivematerials license:

1. Can Karnes~County,Texas expend funds for attorney's fees and expertwitness fees and other relatedexpenses to opposean applicationto amend

. a radioactivematerials license?

2. The said application is being considered by the Texas Department of Health, which is responsible for regulating this license. C** Karnes County, Texas oppose a finding and/or rulingmade by theTexas DepartmentofHealth?

3. Can a county or district attorney take an active role in opposing a finding or ruling made by a stateagency?

Your first question concerns the authority of the commissioners court to expend county funds for the purpose of opposing an application to amend a radioactivematerials license.

The commissioners court has only that authority which is expressly conferred by or necessarily implied from the constitution

_ _ and laws of Laughlin, 21 S.W.2d 1084, (Tex.App. -this state. See Tex. Co&St.-art. V, 018(b); Canales v.

.4 S.W.2d 451353 (Tex. 1948); Anderson V. Wood, 152 1085 (Tex. 1941); Schope V. State, 647 S.W.2d 675. 678 Houston [14thDist.] 1982,pet. ref'd);Attorney General Opinion JM-350 (1985). You have cited to us no authority, either constitutional or statutory,which expressly or impliedly authorizes the commissioners court to expend county funds for the purposes you describe. We have been informed,however, that the county seeks to oppose the amendment of a radioactive materials license that was issuedpursuant to article4590f,V.T.C.S. It isnecessary to examine

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that statute todeterminewhether the commissionerscourt expresslyor impliedly is given such authority.

Article 459Of, V.T.C.S., establishes a single. statewide system for regulating sources of nuclear and radioactive materials. Its purpose is toprovide an orderly, effectiveregulatoryprogram in this state that is compatible with the programs of other states and the federal government. At the same time, the act is intended to permit the maximum utilization of sources of radiation consistentwith the health and safetyof thepublic and theprotection of the environment. See V.T.C.S. art. 4590f. 551, 2. The .actprohibits. inter alia, the use, manufacture, production, transport, acquisition. possession, or disposalof any sourceof radiationby anyperson unless theperson is licensed or registered by the Texas Radiation Control Agency or exempted under the terms of the act. Id. 413. The Texas Radiation ControlAgency (hereinafterthe agency)Frates as part of the Texas Department ofHealth. Id. 54(a). The agency is authorized toprovide rules .forthe licensingof radioactivematerials or devices or equipment utilizing such materials. Id. §6(a). The terms and conditions of licenses issuedby the agencyye subject to amendment, revision,
or modification by rules or orders issued in accordance with article 4590f and theAdministrativeProcedureand TexasRegister Act, article 6252-13a,V.T.C.S. (hereinafterAPTRA). Id. 456(a)(4), 11(a). Apparently, it is the amendment of a license issuedpursuant to these provisionswhich Karnes County seeks to oppose.
Section 11(b) of article 4590f requires the agency to provide notice and an opportunity for a hearing on the written request of "any person affected by

. . . the grant or amendment of a specific license." Id. §ll(b)(3). A "specific" license is issued only after the filingof an application with the agency; a "general" license requires no prior filing. Id. 5)3(c)(l), (2). The act defines - "person"as

any individual, corporation, partnership, firm, association, trust, estate. public or private institution, group, agency. local government, any other state or political subdivision or agency thereof, or any other legal entity,and any legal successor,representative,agent,or agency of the foregoing, other than the [United States Nuclear Regulatory] Commission and other than Federal GovernmentalAgencies licensed or exemptedby the [United States Nuclear Regulatory] Commission. (Emphasisadded.)

Id. 03(d). - A "person affected" is a person

(1) who is a resident of a county,or a county adjacent to the county, inwhich nuclear or radioactive materials subject to this Act are or will be located, including any person who is doing -,

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business or who has a legal interest in land in the county or adjacent county, and any local government in the county;and - (2) who shalldemonstratethathe has suffered
or will suffer actual injury or economic damage. (Emphasisadded.)

Id. 93(r). The term "localgovernment"includesa county. Id. 53(s). ris clear, then,~that a county affectedby any procedurelisted in section 11(b) of the act is entitled to notice and an opportunity for
a hearing before the agency upon written request. Section 11(e) of article 4590f also authorizes a person who is affected by a final decision of the agency and has exhausted all administrativeremedies to obtain judicialreview of the decisionunderAPTRA.

Where a right is conferred or a duty is inposed on the commissioners court by statute, it has broad discretion to accomplish the purposes intended., Attorney General Opinion JM-350 (1985) (citing Anderson v. Wood, supra). Although the statute may not expressly authorize the expenditure of county funds to exercise the right or discharge the duty conferred, such authority is implied if the commissionerscourt, in good faith, finds such expenditures to be in the county's interest. Id. The commissioners court may employ experts and provide for theexpenses of expertwitnesses if necessary to the performance of official duties. See Pritchard & Abbott v. McKenna, 350 S.W.2d 333 (Tex. 1961);Attorney General Opinion M-680 (1970). Where the county attorney is not required by statute to represent the county in a particularmatter, the commissioners court may employ private counsel therefor. See O'Quinn v. McVicker, 428 S.W.2d 111 (Tex.Civ. App. - Beaumont 19w, no writ); BurlesonCounty
v. Giesenschlag,354 S.W.2d 418 (Tex.Civ. App. - Houston [lstDist.1 1963, no writ). In employing private counsel, however, the conrmissioners court may not deprive the county attorney of his statutory authority. See, e.g., Terre11 v. Greene, 31 S.W. 631 (Tex. 1895); Driscoll v. Harris County Commissioners Court, 688 S.W.2d 569 (Tex. APP. - Houston [14thDist.] 1985, writ ref'd n.r.e.). Cf. Attorney - GeneralOpinionJM-661 (1987).

In light of the fact that articie 4590f does not expressly require the county attorney to represent the county in hearings or appealsbroughtpursuant to the act,we believe that the commissioners court of Karnes County may expend county funds for attorney's fees, expertwitness fees, and related expenses to oppose an applicationto amend a radioactive materials license granted under article 459Of, provided the county can demonstrate that it has suffered or will suffer actual injury or economic damage by the amendment of the licenseand provided the commissionerscourt finds it in the county's interest to -makesuch expenditures. See generally Attorney GeneGal OpinionJM-350 (1985).

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You next askwhetherKarnes County leayoppose a findingor ruling made by the Department of Health sitting es the Texas Radiation Control Agency. As our discussianhas &ready demonstrated, a county "affected"by the procedures listed in section 11(b) of article 4590f may request in writing both notice and an opportunity for a hearing. A county affected by a final decision of the agency which has exhausted all administrative remedies may obtain judicial review pursuant to APTRA. V.T.C.S. art. 4590f. 511(e). The evailebility of these procedures in cases of actual or anticipated injury or economic damage, see id. 13(r), indicates that such proceduresmay be used by persons or entities seeking to contest the proposed action or final decision of the agency. Your second question, then, may be answered in the affirmetive.

Your third question is whether a county attorney or district attorneymay take en active role in opposing a finding or rulingmade by a state administrative agency. We assume you to ask whether the county attorney or district attorneymay oppose the final decision of the agency in judicial review proceedings instituted in the name of the county pursuant to section 11(e) of article 4590f and APTRA. We previously concluded that the conmissioners court may employ private counsel to represent the county's interests in article 4590f proceedings. We will now consider whether the county attorney or district attorney isprecluded fromperforming those functions.

Article V, section 21 of the Texas Constitutionprovides in part that countyattorneys

shall represent the State in all cases in the District end inferior courts in their respective counties;but if any county shellbe included in e district in which there shall be a District Attorney, the respective duties of District Attorneys and County Attorneys shell in such countiesbe regulatedby theLegislature.

This constitutionalprovision does not authorize the county attorney to institute legal proceedings in the name of the state unless authorizedor directed to do soby statute. Wexlerv. State, 241 S.W. 231 (Tex. Civ. App. - Galveston 1922, no writ). While the county attorney is required to represent the county in suits brought by it, he "can bring no suit for or in the name of the county unless authorized so to do by some statute or some order of the comissioners'court." Id. et 233. See County ofWard v. King, 454 S.W.2d 239 (Tex.Civ.App. 1 El Paso 19T, writ dism'd).

Section 41.007 of the Government Code authorizes the county attorney or district attorney to advise county officials concerning their official duties. Also, the county attorney; like the commissionerscourt,has impliedpowers necessary to the discharge of his constitutionaland statutoryduties. See Fort Worth Cavalry Club
v. Sheppard. 83 S.W.2d 660, 663 (Tex. 1935). Thus, while article

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4590f does not expressly enjoin upon the county attorney the duty to act on the county’sbehalf, we believe the county attorneymay, with the approval of the commissionerscourt, advise the ccunty concerning its rights and remedies under article 4590f and represent it in judicial review proceedings pursuant to section 11(e) of the act. See, e.g., State v. peeler, 200 S.W.2d 874 (Tex. Civ. App. - Fort Worth 1947,no writ).'

As the discussion should suggest, however, the commissioners court is not deprived of the authority to employ private counsel simplybecause the county attorneymay act onbehalf of the county in this instance. As the executive head of county government, the commissioners court is vested with broad discretion in determining whether andhow itwill pursue its legal remedies. SeeWard Countyv. Lee Moor Contractin Co., 319 S.W.2d 398 (Tex. CivTApp. - El Paso 1958, no writ); Travis,,County v. Matthews, 235 S.W.2d 691, 697 (Tex. Cl". App. - Austin 1950, writ ref'd n.r.e.). The duty imposed upon the county attorney by section 41.007, meanwhile, does not restrict the commissionerscourt in the employment of attorneys to advise and render services to the court in importantmatters coming before it. Gibson v. Davis, 236 S.W. 202, 211-212 (Tex. Civ. App. - Galveston 1921, no writ) (construingformer article 356, now section 41.007 of theGovernmentCode). Turning to the office of the district attorney, this office has previously concluded that in the absence of a constitutional or statutory requirement, the district attorney is under no duty to represent the county in legal proceedings. SeeAttorney General Opinion O-864 (1939). The commissioners courtmyin such instances employ the district attorney to representthe interestsof the county. & As article 4590f imposes no duty on the district attorney to represent the county in hearings or appeals,we believe the district attorneymay be employedby the commissionerscourt for suchpurposes. We note,however, that chapter 46 of theGovernmentCodemay limit the

1. In this case the court held that the county attorney had's right to participate in a proceeding before the district court to review the county judge's action on an *pplication for a retail dealer's license to sell beer. The court concluded that the county attorney could appear either on behalf of the county and state or as a citizen. 200 S.W.2d at 877. It relied upon a former Penal Code provision which excepted county officers and the state from posting security for the cost of contesting the applicationor appealing the county judge's order. See Alto. Bev. Code 9961.32(c), 61.34(d), 61.39. The statute imposedno express duty upon the county attorney to either contest the applicationor appeal the county judge's order. However, it is clear the court believed the county attorney could appear inhis officialcapacity in suchproceedings.

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ability of a district attorney, criminaldistrict attorney, or county attorney to engage in the private practice of law. See Gov't Code 9546.002 (prosecutors subject to chapter 46); 46.005 (limitationson lawpractice). For example, theprovisionsof chapter 46 apply to the office of district attorney for the Slst judicial district (which includes Karnes County), but do not apply to the office of County Attorney forKarnes County. See id. 5524.183;46.002(l). --
SUMMARY

A countymay oppose an applicationto amend a radioactivematerials license granted pursuant to article 4590f. V.T.C.S., provided the county can demonstrate that it has suffered or will suffer actual injury or economic damage from the amendmetitof the license. Such a county may obtain judicial review of a final decision of the Texas Radiation Control Agency pursuant to the Administrative Procedure and Texas Register Act, article 6252-13a, V.T.C.S. The commissioners court of such county may expend county funds for attorney's fees, expert witness fees, and other related expenses to oppose an applicationto amend
a radioactive materials license if the commissloperscourt finds it in the county's interest to make such expenditures. The county attorneymay, with commissioners court approval. advise the county concerning its rights and remedies under article 4590f and represent it in judicial review proceedingspursuant to section 11(e) of the act. The district attorney may be employed by the commissionerscourt to represent the countyunless such employmentisprohibitedby section 46.005 of theGovernmentCode.

JIM MATTOX AttorneyGeneral of Texas

MARY KELLER ExecutiveAssistantAttorneyGeneral

JUDGE ZOLLIE STEAKLEY SpecialAssistantAttorney General

RICK GILPIN Chairman,OpinionCommittee
Preparedby Rick Gilpin AssistantAttorneyGeneral

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