Untitled Texas Attorney General Opinion ( 1947 )

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THEATTORNEYGENERAI.
OF TEXAS
AUWFIN 1%.TEXAS
PRICE DANIEL
ATTORNEYGENERAL
Cctober 9, 1947
Honorable R, CO Hughes, Qplniaa Bo. v-403
Chairman, State Board
of Plumbing Examiners, Rer Authority of State
Austin, Texas Board of Plumbing
Hamminers to em-
ploy Its own legal
department E
Dear Mr L Rughes:
Your request is for an opinion of this depart-
ment on the following questionr
,.
Does the State Board of plumbing Bx-
amfners, under the provisiona of the Plumb-
ing License Law of 1947, have the authority
to employ its own legal department for coun-
sel and enforcement purposes?
The only provisions of Senate Bill No, 188,
The Plumbing License Law of 1(94r7, of the 50th Legisla-
ture, that are in anywlse,pertfnsnt to the question un-
der oonsideration are the, following :
Qeet``on 5, fn part: c
“The Board shall adml&t$$ter the provf-
sfons of thfs Act, The 0oarQ &all formal-
ly elect a chairman an8 a reeretary-treasur-
er from its members and may adopt such rules
as it deemo necessary, for the orderly conduct
of its affairs, The Board ia hereby authorf-
aed and empowered to employ, promote and dfs-
charge such assistants and employees as it
may deem deasssary to properly carry out the
intent and purpose of this Act, anQ to ffx
and pay their compensation aad salaries and
to provide for their &ties and the teams of
their employment 0”
Swtfoa 9? in part:
“The Boar+d shaU bawl power to appoint p
Honorable R, G, Hughes, page 2 (V-403)
by an order fn writing, any corn etent
person to take testimony in sue R hearing,
who shall have pover to administer oaths,
issue subpoenas and compel the attendance
of witnesses, ard the decision of the
Board shall be based upon its examinatfon
of the testimony taken and the records
produced OI’
It is clear that no express or Implied auth-
orfty fs given in the Act to employ an attorney or at-
torneys as a legal department for the purpose of giving
legal counsel or advice or handling lftfgation, The
Board cannot employ an attorney to do those things which
under the Constitution or statutes 4t is the duty of the
U;rney General, a PIstrict or County Attorney to per-
0
In Section 22 Article 4 of the Texas Constl-
tutfon, we find the foliowing provision with reference
to the Attorney General:
unless otherwise rx~ressl~ directed by law,
It fs rtated in 5 Tex. Jur, p0 378, that:
“Important 88ong the Attom
numerous task8 is th e4 utt o il
Go ver nolnQr tha hoa48 of
puLm;eyt 8 0 Thr rtatutr poti& that he
at tiw rrqtwrt of thr Governor
or th6 kd”of any dopartwattr of the state
(ioverrment . 0 0 give thra w?ittea advice
upon any question touching the public lnter-
eat, or concclrning their officibl duties, n ‘I
In Opinion Ao. O-6066, by a fCm%Br Attorney
General, concar’nfng the le ality o? certain proposed
lxpenaitures by the Stat. d oard of Public Accounting,
. ,’
.
Honorable R, G, Hughes, page 3 (V-403)
it fs safd:
“Wfth reference to your third ausstioQ,
the Board is nowhere xare authorized to
pmlosr counsel, Imulted authority to emalov
to the heads of all State Boards UD n matters
oncernins their official duties, Coonsequent-
yy in answer to your third question you are
reipectfully advised that a legal fe: of the
type there described may not be considered an
expense in connection with the maintenance of
the Board within the meaning of Article 39.”
(Emphasis ours)
In Section 21, Article 5 of the Constitution,
the following is found:
“The County Attorneys shall represert
the State in all casIs in the District and
Inferior courts in their respective coun-
ties-l but If any county shall be Included
in a dfstrict in which .there shall be a
district attorney, WWIrespective dutfes
of dfstrict attorneys and county attorneys
shall in such counties be regulated by the
Laglslature,``
The Constitution empowers district and county
attorneys to represent the State in all cases, civil ifid
erimlnal, in the district and Inferior courts of their
respect fve count fes o except In those cases where it con-
fers that power on the Attorney General and where the
Legislature has, under Section 22, Article 4: of the Con-
stitution, created additional causes of action in favor
of the State ahd entrusted their prosecution, whether in
the trial or in tlie appellate courts solely to the At-
torney General, Maud v. Terre11 104 Tax. 97 200 F. W o
375; Brady v. Brooks, 99 Tex. 36b, 89 S.W. 1652,
In view of the above quoted provisions of Se-
nate Bill 188 and of the other statements of law and the
former Attorney General’s opinions, the Board does not
have authorPty to employ an attorney or attorneys for
iegal counsel and advice or for conducting litigation*
The Board does have authority, however, under Sections
Ronorable Ft. G. Hughes, page 4 (V-403)
5 and 9 of The plumbing License Law of 1947 to employ an
attorney or attorneys for the same purposes for which
‘any assistant or employee can be employed. They may be
used for such enforcement purposes as the making of in-
vestigations and conducting of hearings and the taking
of testimony therein.
The Board of Plumbing Examiners does not
have authority under The Plumbing License Law
of 1947, S, B, 188 of the 50th Legislature to
employ attorneys for legal counsel and advice
or handling litigation or for the purpose of
doing any other thing which under the Constitu-
tion or statutes it is the duty of the Attorney
General a District or County Attorney to per-
form. i t may, however, employ attorneys as as-
sistants or employees and may use them for the
making of investigations and for the conducting
of hearings and the taking of testimony therein.
Yours very truly,
A’l’TORNlK’ GENERAL
OF TEXAS
Assistant
APPROVPD