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
    

Document Info

Docket Number: V-403

Judges: Price Daniel

Filed Date: 7/2/1947

Precedential Status: Precedential

Modified Date: 2/18/2017