THE ATTORNEY GENEXAL 

OF EXAS 

September 18, 1987 

Honorable John W. Berry 

Karnes County Attorney 

Karnes County Courthouse 

Karnes City, Texas 78118 

Opinion No. JM-788 

Re: Whether a county may expend 

funds to oppose an application 

to amend a radioactive materials 

license 

- 

P 

Dear Mr. Berry: 

You ask three questions regarding the authority of Karnes County 

to oppose an application to amend a radioactive materials license: 

1. Can Karnes ~County, Texas expend funds for 

attorney's fees and expert witness fees and other 

related expenses to oppose an application to amend 

. a radioactive materials 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 

ruling made by the Texas Department of Health? 

3. Can a county or district attorney take an 

active role in opposing a finding or ruling made 

by a state agency? 

Your first question concerns the authority of the commissioners 

court to expend county funds for the purpose of opposing an application to amend a radioactive materials 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 [14th Dist.] 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 

issued pursuant to article 4590f, V.T.C.S. It is necessary to examine 

p. 3723 
Honorable John W. Berry - Page 2 ml-788) 

that statute to determine whether the commissioners court expressly or 

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 to provide an orderly, effective regulatory program 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 consistent with the 

health and safety of the public and the protection of the environment. 

See V.T.C.S. art. 4590f. 551, 2. The .act prohibits. inter alia, the 

use, manufacture, production, transport, acquisition. possession, or 

disposal of any source of radiation by any person unless the person is 

licensed or registered by the Texas Radiation Control Agency or 

exempted under the terms of the act. Id. 413. The Texas Radiation 

Control Agency (hereinafter the agency)Frates as part of the Texas 

Department of Health. Id. 54(a). The agency is authorized to provide 

rules .for the licensingof radioactive materials or devices or equipment utilizing such materials. Id. §6(a). The terms and conditions 

of licenses issued by the agencyye subject to amendment, revision, 

or modification by rules or orders issued in accordance with 

article 4590f and the Administrative Procedure and Texas Register Act, 

article 6252-13a, V.T.C.S. (hereinafter APTRA). Id. 456(a)(4), 11(a). 

Apparently, it is the amendment of a license issued pursuant to these 

provisions which 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 filing of 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 

Governmental Agencies licensed or exempted by the 

[United States Nuclear Regulatory] Commission. 

(Emphasis added.) 

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

(1) who is a resident of a county, or a county 

adjacent to the county, in which nuclear or radioactive materials subject to this Act are or will 

be located, including any person who is doing 

-, 

p. 3724 
Eonorable John W. Berry - Page 3 (JM-788) 

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 shall demonstrate that he has suffered 

or will suffer actual injury or economic damage. 

(Emphasis added.) 

Id. 93(r). The term "local government" includes a county. Id. 53(s). 

ris clear, then,~ that a county affected by 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 administrative remedies 

to obtain judicial review of the decision under APTRA. 

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 

commissioners court, 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 expert witnesses 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 particular matter, 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); Burleson County 

v. Giesenschlag, 354 S.W.2d 418 (Tex. Civ. App. - Houston [lst Dist.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 [14th Dist.] 1985, writ ref'd n.r.e.). - Cf. Attorney 

General Opinion JM-661 (1987). 

In light of the fact that articie 4590f does not expressly 

require the county attorney to represent the county in hearings or 

appeals brought pursuant to the act, we believe that the commissioners 

court of Karnes County may expend county funds for attorney's fees, 

expert witness fees, and related expenses to oppose an application to 

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 

license and provided the commissioners court finds it in the county's 

interest to -make such expenditures. See generally Attorney GeneGal 

Opinion JM-350 (1985). 

p. 3725 
Honorable John W. Berry - Page 4 (JM-788) 

You next ask whether Karnes County leay oppose a finding or ruling 

made by the Department of Health sitting es the Texas Radiation 

Control Agency. As our discussian has &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 procedures may 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 

attorney may take en active role in opposing a finding or ruling made 

by a state administrative agency. We assume you to ask whether the 

county attorney or district attorney may 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 is precluded from performing those functions. 

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

that county attorneys 

shall represent the State in all cases in the 

District end inferior courts in their respective 

counties; but if any county shell be included in e 

district in which there shall be a District 

Attorney, the respective duties of District 

Attorneys and County Attorneys shell in such 

counties be regulated by the Legislature. 

This constitutional provision does not authorize the county attorney 

to institute legal proceedings in the name of the state unless 

authorized or directed to do so by statute. Wexler v. 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 of Ward v. King, 454 S.W.2d 

239 (Tex. Civ. App. 1El 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 

commissioners court, has implied powers necessary to the discharge of 

his constitutional and statutory duties. See Fort Worth Cavalry Club 

v. Sheppard. 83 S.W.2d 660, 663 (Tex. 1935). Thus, while article 

p. 3726 
Honorable John W. Berry - Page 5 (~~-788) 

4590f does not expressly enjoin upon the county attorney the duty to 

act on the county’s behalf, we believe the county attorney may, with 

the approval of the commissioners court, 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 

simply because the county attorney may act on behalf of the county in 

this instance. As the executive head of county government, the 

commissioners court is vested with broad discretion in determining 

whether and how it will pursue its legal remedies. See Ward County v. 

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 commissioners court in the employment of attorneys to advise and 

render services to the court in important matters coming before it. 

Gibson v. Davis, 236 S.W. 202, 211-212 (Tex. Civ. App. - Galveston 

1921, no writ) (construing former article 356, now section 41.007 of 

the Government Code). 

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. See Attorney General 

Opinion O-864 (1939). The commissioners court myin such instances 

employ the district attorney to represent the interests of the county. 

& As article 4590f imposes no duty on the district attorney to 

represent the county in hearings or appeals, we believe the district 

attorney may be employed by the commissioners court for such purposes. 

We note, however, that chapter 46 of the Government Code may 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 application or 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 application or appeal the county judge's order. 

However, it is clear the court believed the county attorney could 

appear in his official capacity in such proceedings. 

p. 3727 
Eonorable John W. Berry - Page 6 (a-788) 

ability of a district attorney, criminal district 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 (limitations on 

law practice). For example, the provisions of 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 for Karnes County. See id. 5524.183; 46.002(l). -- 

SUMMARY 

A county may oppose an application to amend a 

radioactive materials 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 amendmetit of 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 application to amend 

a radioactive materials license if the commisslopers court finds it in the county's interest to 

make such expenditures. The county attorney may, 

with commissioners court approval. advise the 

county concerning its rights and remedies under 

article 4590f and represent it in judicial review 

proceedings pursuant to section 11(e) of the act. 

The district attorney may be employed by the 

commissioners court to represent the county unless 

such employment is prohibited by section 46.005 of 

the Government Code. 

JIM MATTOX 

Attorney General of Texas 

MARY KELLER 

Executive Assistant Attorney General 

JUDGE ZOLLIE STEAKLEY 

Special Assistant Attorney General 

RICK GILPIN 

Chairman, Opinion Committee 

Prepared by Rick Gilpin 

Assistant Attorney General 

p. 3728