Untitled Texas Attorney General Opinion ( 1987 )

September 22, 1987
Mr. William M. Hale Opinion No. JM-791
Executive Director
Texas Comission on Human Rights Re: Authority of the Attorney
P. 0. Box 13493 General to represent the Texas
Austin, Texas 78711 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.)
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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 for-
feiture 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.
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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
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Mr. William M. Hale - Page 4 (m-791)
article 4646b, V.T.C.S., was constitutional. In enacting that
statute, the legislature
created a cause of action in favor of the State
and authorized the Attorney General to 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
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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
MARYKKLLER
Executive Assistant Attorney General
JUUGE ZOLLIE STEAKLEY
Special Assistant Attorney General
RICK GILPIN
Chairman, Opinion Cormaittee
Prepared by Susan L. Garrison
Assistant Attorney General
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