Untitled Texas Attorney General Opinion ( 1962 )

‘lcx?mxX 11.TEXAU AMENDED BY M-249 October 23, 1962 Honorable D. F. Smallh~orst Executive Secretary Texas Water Pollution C,ontrolBoard Austin, Texas Opinion No. ``-1461 Re: Authority of the State Water Pollution Control Board to enter into's contract for the professional services of an Dear Mr. Smallhorst: attorney. Your request for an opinion on the above subject matter reads as follows: "The Texas Water Pollution Control Board desires to enter into a contract for the professional services of an attorney to advise and assist the Board in the prepa- ration of legal Instruments such as contracts and permits; drafting of resolutions, rules and policy statements; conducting hearings; and other matters of a legal nature relating to the administration of this Agency. Expendi- tures for this purpose would be made from Comptroller38 Fund WPRS, Budget No. 49, Cate- gory No. 6, which can be used for professional services. "This office has been informed by the Comptroller's Office that it will not issue warrants in payment of such contract services on the basis of Attorney General Opinions Nos. Q-6066 and V-403. Opinion No. WW-633 is also pertinent to this matter. "It Is the Board's ositlon that Section 3(h) of House Bill No. 2fJ Acts of the Fifty- Seventh Legislature, Firs; Called Session 1961 (codified as Article 7621d, V.A.C.S.j, authorizes such a contract and the expenditure of funds for such services. Hon. D. F. Smallhorst, page 2 (``-1461) “On behalf of the State Water Pollu- tion Control Board, I respectfully request your opinion whether the Board has the power to enter Into such a contract as that des- cribed above and to make payment for services performed under such contract out of an appro- priate fund. Your early consideration of this request would be greatly appreciated." Subdivision (h) of Section 3 of Article 7621d, Vernon's Civil Statutes, provides: "(h) Technical, sclentiflc, legal or other services shall be performed by person- nel of other State agencies when requested by the Board, but the Board may employ and compensate with funds available therefore professional consultants, assistants and em- ployees that may be :lecessaryto carry out the provisions hereof and prescribe their powers and duties. The Board may request and shall receive the assistance of any State educational Institution, experimental station, or other State agency." In Attorney General's Opinion O-6066 (1944), it -eras held that the State Board of Public Accountancy of Texas did not have the authority to pay legal fees to a firm of attorneys to advise such Board concerning recommended legislation affect- ing the profession of public accountancy for the reason that the statutes creating the Board and prescribing Its authority and duty did not authorize such expenditure and did not make such proposed activity a duty of such Board. Likewise, in Attorney General's Opinion V-403 (1947), it was held that the State Board of Plumbing Examiners did not have authority to employ its own legal department for the reason that there was no express or lm- plied authority given in the Act creating such Board to employ an attorney or attorneys as a legal department for the purpose of giving legal counsel or advice or handling litigation. In Attorney General's Opinion ``-633 (1959), it was held that the State Building Commission did have authority to pay for profes- sional fees of an attorney for services rendered In connection with land acnulsition, since Article 678m authorizes the Commis- sion to enter into contracts necessary to provide for the ob- taining of sites and the planning, designing and construction of buildings and specifically authorizes the employment of such professional assistants as may be deemed necessary by the Com- mission. Hon. D.F. Smallhorst, page 3 (``-1461) Therefore, the answer to your question Is dependent on the construction of the language contained In Subdivision (h) of Section 3 of Article 76214, above quoted, It Is our opln- ion that the words "professional consultants, assistants and employees" is broad enough to include the contracting for professional services of an attorney. You are, therefore, ad- vised that the Texas Water Pollution Control Board has au- thority to enter into a contract for the professional services of an attorney to advise and assist the Board in the prepara- tion of legal Instruments and other matters of a legal nature relating to the administration of the Texas Water Pollution Control Board. SUMMARY The Texas Water Pollution Control Board has authority to enter into a contract for the professional services of an at- torney to advise and assist the Board in the preparation of legal Instruments and other matters of a legal nature relating to the administration of the Texas Water Pollution Control Board. Yours very truly, \JILLWILSON Attorney General of Texas JR:ms Assistant APPROVED: OPINION COMMITTEE J. C. Davis, Chairman Frank Booth L. P. Lollar Pat Bailey Scranton Jones REVIEWED FOR THE ATTORNEY GENERAL By: Leonard Passmore