Untitled Texas Attorney General Opinion ( 1980 )

The Attorney General of Texas
OctDber 10, 1980
MARK WHITE
Attorney General
Honorable Bob Bullock Opinion No. m-255
Comptroller of Public Accounts
L.B.J. Building Re: Validity of actions of the
Austin, Texas 78774 Texas Prosecutors Coordinating
Council
Dear Mr. Bullock:
In 1977, the Texas legislature enacted article 332d, V.T.C.S., which
created the Texas Prosecutors Coordinating Council, defined its powers and
duties, and provided for the reprimand, disqualification, or removal from
office of prosecuting attorneys for certain reasons. Acts 1977, 65th Leg.,
ch. 345, at 917. Section 3 of article 332d provides that the council shall be
composed of nine members, selected as follows:
(1) four citizens of the State of Texas, who are
not licensed to practice law, appointed by the
Governor of Texas, with the advice and consent of
the senate. . .
(2) the president of the Texas District and County
Attorneys Association; and
(3) four incumbent, elected prosecuting attorneys
to be selected by the membership of the Texas
District and County Attorneys Association, at least
one each of whom shall be a county attorney, a
district attorney, and a criminal district attorney.
You ask whether the legislature has unconstitutionally conferred the power
of appointment upon a private association in violation of article II, section 1
of the Texas Constitution, which provides that:
The powers of Government. . . shall be divided
into three distinct departments, each of which shall
be confided to a separate body of magistracy, to
wit: Those which are Legislative to one; those which
are Executive to another, and those which are
Judicial to another; and no person, or collection of
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Honorable Bob Bullock - Page Two (I@-255)
persons, being of one of these departments, shall exercise any
power properly attached to either of the others, except in the
instances herein expressly permitted.
The constitution of Texas, unlike the federal constitution, operates as a
limitation upon power. “All power which is not limited by the Constitution inheres in
the people, and an act of a state legislature is legal when the Constitution contains no
prohibition against it.” Watts v. Mann, 187 S.W.2d 917 (Tex. Civ. App. - Austin 1945,
writ repd). The authority to legislate on any subject not expressly or by necessary
implication denied by the constitution resides with the legislature, and action of that
body is regarded as final unless in plain, unequivocal terms such action is contrary to
constitutional limitations. See Governmental Services Insurance Underwriters v.
Jones, 368 S.W.2d 560 Day, 76 S.W.2d 1060 (Tex. Crim. App.
1934). Courts will not hold leeislation unconstitutional unless it is absolutelv necessarv
to do so. Texas State Board”of Barber Examiners v. Beaumont Barber College, Inc.,
454 S.W.2d 729 (Tex. 1970).
Sensing that the concentration of the legislative, executive and judicial powers
of government in the same hands would inevitably lead to tyranny, the framers of the
Texas Constitution provided in article II, section 1 for the exercise of these three
functions by separate and independent branches of government. Article II, section 1, a
version of which has bean incorporated in all of our state constitutions, requires that
each branch act pursuant to its own authority. If one branch exceeds its authority and
usurps powers which it does not possess, its acts are a nullity and are not binding on
other branches of government. Ex parte Giles, 502 S.W.2d 774 (Tex. Crim. App.
1973). This principle of separation of powers does not absolutely prohibit one branch
from performing acts which by their nature belong to another branch - the practical
necessities of efficient government prevent its complete application -but the
general rule still exists that while one branch may exercise any power which the
constitution delegates to it, it may not exercise powers not so granted which, from
their essential nature, do not fall within its division of governmental functions.
The question before us is whether, in light of the underlying purpose of article II,
section 1 of the constitution, article 332d, V.T.C.S., unconstitutionally delegates the
power of appointment to the Texas District and County Attorneys Association, which
is a private association. We conclude that it does not.
The El Paso Court of Civil Appeals addressed virtually the same issue in Miller v.
El Paso County, 146 S.W.2d 1027 (Tex. Civ. App. - El Paso 19401, -. rev’d on-- other
150 S.W.2d 1000 (Tex. 1941). Miller presented a constitutional chal Llenge to
!%$?article 2352b. V.T.C.S.. whi ch attempted to authorize the levy of a five-cent
tax for use in advert&z and dromotional ourooses
_ . in certain counties. Article 2352b
also provided that: - -
Sec. 3. There is hereby created in such counties. . . a Board
of County Development, which. . . . shall consist of five (5)
members; two (2) to be appointed by the Commissioners’ Court
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Honorable Bob Bullock - Page Three (.MW-255)
of such counties. . . and three (3) of whom shall be appointed by
the Board of Directors of the Chamber of Commerce of the
county seat of such county.
Responding to the contention that this method of appointing members of the Board of
County Development contravened article II, section 1, the court cited earlier Texas
cases that had approved a statute which provided for appointments by the Speaker of
the House, Dorenfield v. State, 73 S.W.2d 83 (Tex. 19341, as well as a home-rule city
ordinance providing that members of a Board of Development would be appointed from
a list named by that board, Davis v. City of Taylor, 67 S.W.2d 1033 (Tex. 19341, and
concluded that “we can see little difference in confiding the power of appointment to
an office other than the executive department and confiding it to an unofficial body.”
146 S.W.2d at 1035. The Supreme Court, although it overturned the taxing provisions
of the statute, did not disturb the lower court’s holding on this issue. In our opinion,
therefore, Miller may validly be cited for the proposition that a statutory delegation of
the power of appointment to an unofficial body such as the one at issue here does not
violate article II, section 1 of the Texas Constitution.
Section 1 of article 332d states that “the legislature recognizes that the
prosecutor performs an executive function which has a significant effect on the
judicial branch and on law enforcement” and declares the purpose of the statute to be
to:
provide a centralized agency capable of delivering technical
assistance, educational services, and professional development
training to the prosecutors of Texas and their assistants and to
improve the administration of criminal justice through
professionalization of the prosecuting attorney’s office.
Clearly, in the legislature’s judgment, the objectives set forth in section 1 of article
332d could best be accomplished by a Coordinating Council that contains members who
are either appointed by the Texas District and County Attorneys Association or who
occupy their seat by virtue of being president of that association. We have noted that
the legislature is authorized to legislate on any subject not expressly or by necessary
implication denied by the constitution, and that its action will not be annulled unless it
clearly and unequivocally contravenes the constitution. Because article II, section 1, as
construed in Miller v. El Paso, s, does not, in our opinion, clearly prohibit the
legislature from delegating authority in the manner provided for in article 332d,
V.T.C.S., we conclude that no constitutional problem exists under that constitutional
provision.
You also ask a number of questions regarding the authority of the Prosecutors
Coordinating Council to contract with a private attorney to assist the district attorney
of Bell County in preparing and trying a criminal case. As we stated in Attorney
General Opinion MW-191 (1980), the Prosecutors Coordinating Council may not spend
appropriated funds to hire an outside attorney to assist a district attorney in
prOSecutiIYg a case, unless the attorney general has been requested to perform the
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needed services end has certified his inability to do so. Sea General Appropriations
Act, Acts 1979, 66th Leg., ch. 843, at 2917. Our office hasow given the necessary
waiver to the council. You wish to know whether the council has statutory authority
to provide such services to a district attorney. Specifically, you ask whether the
contract between the council and the attorney selected as special prosecutor
represents a form of “technical assistance” which section 8(7) of article 332d
authorizes the council to provide.
The council is presently operating on federal funds provided by the Law
Enforcement Assistance Administration (LEAA). Attorney General Opinion MW-191. It
was the declared policy of Congress in establishing the LEAA to:
aid State and local governments in strengthening and
improving their systems of criminal justice by providing
financial and technical assistance with maximum certainty and
minimum &lay.
42 U.S.C. 53701. Pursuant to 42 U.S.C. section 3742(b), each state is required to
maintain a criminal justice council for the purpose of, inter alia:
providing technical assistance upon request to State
agencies, community-based crime prevention programs, the
judicial coordinating committee, and units of local government
in matters relating to improving criminal justice in the State.
(Emphasis added).
Federal regulations provide:
‘LEAA assistance, LEAA financial assistance, LEAA
assistance program, or LEAA assisted programs’ are programs
that provide assistance through LEAA grant or contractual
arrangements; these also include technical assistance programs
or programs providing assistance in the form of loans .
28 C.F.R. 530.24(d) (Emphasis added).
Thus, federal law would seem to indicate that a “technical assistance” program is
simply one funded by an LEAA grant or contract. In addition, “technical” has been
defined as “belonging or peculiar to an art or profession.” In our opinion, the
legislature contemplated that the kind of “technical assistance” provided to a
prosecuting attorney by a statewide prosecutors coordinating council would ordinarily
be prosecutorial assistance. Thus, we believe that a contract between the council and
an attorney to assist a district attorney in trying a case falls squarely within the
meaning of “technical assistance.”
You also express concern about whether the contract at issue here constitutes an
interference with the duties of a district attorney. Although the legislature may not
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Honorable Bob Bullock - Page Five (NW-255)
take away the duties of a district attorney and confer them on others, Shepperd v.
Alan& 303 S.W.2d 846 (Tex. Civ. App. - San Antonio 1957, no writ), it has not done so
-article 332d. That statute permits the council only to respond to requests from a
prosecutor, and the contract here makes clear that the district attorney “has requested
technical assistance of the council.”
Finally, you ask whether the contract permits retroactive payment to the special
prosecutor. The contract, as signed by the parties on January 9,1980, does not provide
for retroactive payment. It merely stipulates that the council has applied for a grant
adjustment allowing payment to the special prosecutor at the rate of $200 per day, and
that full payment in such amount is owing from the begin& of the contract. Since the
contract containing these provisions was entered into prior to the rendering of any
services, we do not believe that it permits retroactive payment.
SUMMARY
Article 332d, V.T.C.S., does not unconstitutionally delegate
the power of appointment to the Texas District and County
Attorneys Association in violation of article II, section 1 of the
Texas Constitution. The Prosecutors Coordinating Council is
authorized by that statute to contract with a private attorney
to assist a district attorney in preparing and trying a criminal
case.
MARK WHITE
Attorney General of Texas
JOHN W. FAINTER, JR.
First Assistant Attorney General
RICHARD E. GRAY III
Executive Assistant Attorney General
Prepared by Jon Bible & Rick Gilpin
Assistant Attorneys General
APPROVED:
OPINION COMMlTTEE
Susan Garrison, Acting Chairman
Jim Allison
Jon Bible
Rick Gilpin
C. Robert Heath
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