Untitled Texas Attorney General Opinion

THE ATTORNEY GENEXAL
OF EXAS
September 18, 1987
Honorable John W. Berry Opinion No. JM-788
Karnes County Attorney
Karnes County Courthouse Re: Whether a county may expend
Karnes City, Texas 78118 funds to oppose an application
to amend a radioactive materials
license
Dear Mr. Berry:
You ask three questions regarding the authority of Karnes County
to oppose an application to amend a radioactive materials license:
1. Can Karnes ~County, Texas expend funds for
attorney's fees and expert witness fees and other
related expenses to oppose an application to amend
- . a radioactive materials license?
2. The said application is being considered
by the Texas Department of Health, which is
responsible for regulating this license. C**
Karnes County, Texas oppose a finding and/or
ruling made by the Texas Department of Health?
3. Can a county or district attorney take an
active role in opposing a finding or ruling made
by a state agency?
Your first question concerns the authority of the commissioners
court to expend county funds for the purpose of opposing an applica-
tion to amend a radioactive materials license.
The commissioners court has only that authority which is
expressly
_ _ conferred by or necessarily implied from the constitution
and laws of this state. See Tex. Co&St.-art. V, 018(b); Canales v.
Laughlin, 21.4 S.W.2d 451353 (Tex. 1948); Anderson V. Wood, 152
S.W.2d 1084, 1085 (Tex. 1941); Schope V. State, 647 S.W.2d 675. 678
(Tex. App. - Houston [14th Dist.] 1982, pet. ref'd); Attorney General
Opinion JM-350 (1985). You have cited to us no authority, either
constitutional or statutory, which expressly or impliedly authorizes
the commissioners court to expend county funds for the purposes you
describe. We have been informed, however, that the county seeks to
P oppose the amendment of a radioactive materials license that was
issued pursuant to article 4590f, V.T.C.S. It is necessary to examine
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Honorable John W. Berry - Page 2 ml-788)
that statute to determine whether the commissioners court expressly or
impliedly is given such authority.
Article 459Of, V.T.C.S., establishes a single. statewide system
for regulating sources of nuclear and radioactive materials. Its
purpose is to provide an orderly, effective regulatory program in this
state that is compatible with the programs of other states and the
federal government. At the same time, the act is intended to permit
the maximum utilization of sources of radiation consistent with the
health and safety of the public and the protection of the environment.
See V.T.C.S. art. 4590f. 551, 2. The .actprohibits. inter alia, the
use, manufacture, production, transport, acquisition. possession, or
disposal of any source of radiation by any person unless the person is
licensed or registered by the Texas Radiation Control Agency or
exempted under the terms of the act. Id. 413. The Texas Radiation
Control Agency (hereinafter the agency)Frates as part of the Texas
Department of Health. Id. 54(a). The agency is authorized to provide
rules .for the licensingof radioactive materials or devices or equip-
ment utilizing such materials. Id. §6(a). The terms and conditions
of licenses issued by the agencyye subject to amendment, revision,
or modification by rules or orders issued in accordance with
article 4590f and the Administrative Procedure and Texas Register Act,
article 6252-13a, V.T.C.S. (hereinafter APTRA). Id. 456(a)(4), 11(a).
Apparently, it is the amendment of a license issued pursuant to these
provisions which Karnes County seeks to oppose.
Section 11(b) of article 4590f requires the agency to provide
notice and an opportunity for a hearing on the written request of
"any person affected by . . . the grant or amendment of a specific
license." Id. §ll(b)(3). A "specific" license is issued only after
the filing of an application with the agency; a "general" license
requires no prior filing. - Id. 5)3(c)(l), (2). The act defines
"person" as
any individual, corporation, partnership, firm,
association, trust, estate. public or private
institution, group, agency. local government, any
other state or political subdivision or agency
thereof, or any other legal entity, and any legal
successor, representative, agent, or agency of the
foregoing, other than the [United States Nuclear
Regulatory] Commission and other than Federal
Governmental Agencies licensed or exempted by the
[United States Nuclear Regulatory] Commission.
(Emphasis added.)
Id. 03(d). A "person affected" is a person
-
(1) who is a resident of a county, or a county
adjacent to the county, in which nuclear or radio-
active materials subject to this Act are or will -,
be located, including any person who is doing
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Eonorable John W. Berry - Page 3 (JM-788)
business or who has a legal interest in land
in the county or adjacent county, and any local
government in the county; -
and
(2) who shall demonstrate that he has suffered
or will suffer actual injury or economic damage.
(Emphasis added.)
Id. 93(r). The term "local government" includes a county. Id. 53(s).
ris clear, then,~that a county affected by any procedurelisted in
section 11(b) of the act is entitled to notice and an opportunity for
a hearing before the agency upon written request. Section 11(e) of
article 4590f also authorizes a person who is affected by a final
decision of the agency and has exhausted all administrative remedies
to obtain judicial review of the decision under APTRA.
Where a right is conferred or a duty is inposed on the commis-
sioners court by statute, it has broad discretion to accomplish the
purposes intended., Attorney General Opinion JM-350 (1985) (citing
Anderson v. Wood, supra). Although the statute may not expressly
authorize the expenditure of county funds to exercise the right or
discharge the duty conferred, such authority is implied if the
commissioners court, in good faith, finds such expenditures to be in
the county's interest. Id. The commissioners court may employ
experts and provide for theexpenses of expert witnesses if necessary
to the performance of official duties. See Pritchard & Abbott v.
McKenna, 350 S.W.2d 333 (Tex. 1961); Attorney General Opinion M-680
(1970). Where the county attorney is not required by statute to
represent the county in a particular matter, the commissioners court
may employ private counsel therefor. See O'Quinn v. McVicker, 428
S.W.2d 111 (Tex. Civ. App. - Beaumont 19w, no writ); Burleson County
v. Giesenschlag, 354 S.W.2d 418 (Tex. Civ. App. - Houston [lst Dist.1
1963, no writ). In employing private counsel, however, the conrmis-
sioners court may not deprive the county attorney of his statutory
authority. See, e.g., Terre11 v. Greene, 31 S.W. 631 (Tex. 1895);
Driscoll v. Harris County Commissioners Court, 688 S.W.2d 569 (Tex.
APP. - Houston [14th Dist.] 1985, writ ref'd n.r.e.). - Cf. Attorney
General Opinion JM-661 (1987).
In light of the fact that articie 4590f does not expressly
require the county attorney to represent the county in hearings or
appeals brought pursuant to the act, we believe that the commissioners
court of Karnes County may expend county funds for attorney's fees,
expert witness fees, and related expenses to oppose an application to
amend a radioactive materials license granted under article 459Of,
provided the county can demonstrate that it has suffered or will
suffer actual injury or economic damage by the amendment of the
license and provided the commissioners court finds it in the county's
interest to -make such expenditures. See generally Attorney GeneGal
Opinion JM-350 (1985).
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Honorable John W. Berry - Page 4 (JM-788)
You next ask whether Karnes County leayoppose a finding or ruling
made by the Department of Health sitting es the Texas Radiation
Control Agency. As our discussian has &ready demonstrated, a county
"affected" by the procedures listed in section 11(b) of article 4590f
may request in writing both notice and an opportunity for a hearing.
A county affected by a final decision of the agency which has
exhausted all administrative remedies may obtain judicial review
pursuant to APTRA. V.T.C.S. art. 4590f. 511(e). The evailebility of
these procedures in cases of actual or anticipated injury or economic
damage, see id. 13(r), indicates that such procedures may be used by
persons or entities seeking to contest the proposed action or final
decision of the agency. Your second question, then, may be answered
in the affirmetive.
Your third question is whether a county attorney or district
attorney may take en active role in opposing a finding or ruling made
by a state administrative agency. We assume you to ask whether the
county attorney or district attorney may oppose the final decision of
the agency in judicial review proceedings instituted in the name of
the county pursuant to section 11(e) of article 4590f and APTRA. We
previously concluded that the conmissioners court may employ private
counsel to represent the county's interests in article 4590f
proceedings. We will now consider whether the county attorney or
district attorney is precluded from performing those functions.
Article V, section 21 of the Texas Constitution provides in part
that county attorneys
shall represent the State in all cases in the
District end inferior courts in their respective
counties; but if any county shell be included in e
district in which there shall be a District
Attorney, the respective duties of District
Attorneys and County Attorneys shell in such
counties be regulated by the Legislature.
This constitutional provision does not authorize the county attorney
to institute legal proceedings in the name of the state unless
authorized or directed to do so by statute. Wexler v. State, 241 S.W.
231 (Tex. Civ. App. - Galveston 1922, no writ). While the county
attorney is required to represent the county in suits brought by it,
he "can bring no suit for or in the name of the county unless
authorized so to do by some statute or some order of the comis-
sioners' court." Id. et 233. See County of Ward v. King, 454 S.W.2d
239 (Tex. Civ. App.
1 El Paso 19T, writ dism'd).
Section 41.007 of the Government Code authorizes the county
attorney or district attorney to advise county officials concerning
their official duties. Also, the county attorney; like the
commissioners court, has implied powers necessary to the discharge of
his constitutional and statutory duties. See Fort Worth Cavalry Club
v. Sheppard. 83 S.W.2d 660, 663 (Tex. 1935). Thus, while article
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Honorable John W. Berry - Page 5 (``-788)
4590f does not expressly enjoin upon the county attorney the duty to
act on the county’s behalf, we believe the county attorney may, with
the approval of the commissioners court, advise the ccunty concerning
its rights and remedies under article 4590f and represent it in
judicial review proceedings pursuant to section 11(e) of the act.
See, e.g., State v. peeler, 200 S.W.2d 874 (Tex. Civ. App. - Fort
Worth 1947, no writ).'
As the discussion should suggest, however, the commissioners
court is not deprived of the authority to employ private counsel
simply because the county attorney may act on behalf of the county in
this instance. As the executive head of county government, the
commissioners court is vested with broad discretion in determining
whether and how it will pursue its legal remedies. See Ward County v.
Lee Moor Contractin Co., 319 S.W.2d 398 (Tex. CivTApp. - El Paso
1958, no writ); Travis,,Countyv. Matthews, 235 S.W.2d 691, 697 (Tex.
Cl". App. - Austin 1950, writ ref'd n.r.e.). The duty imposed upon
the county attorney by section 41.007, meanwhile, does not restrict
the commissioners court in the employment of attorneys to advise and
render services to the court in important matters coming before it.
Gibson v. Davis, 236 S.W. 202, 211-212 (Tex. Civ. App. - Galveston
1921, no writ) (construing former article 356, now section 41.007 of
the Government Code).
Turning to the office of the district attorney, this office has
previously concluded that in the absence of a constitutional or
statutory requirement, the district attorney is under no duty to
represent the county in legal proceedings. See Attorney General
Opinion O-864 (1939). The commissioners court myin such instances
employ the district attorney to represent the interests of the county.
& As article 4590f imposes no duty on the district attorney to
represent the county in hearings or appeals, we believe the district
attorney may be employed by the commissioners court for such purposes.
We note, however, that chapter 46 of the Government Code may limit the
1. In this case the court held that the county attorney had's
right to participate in a proceeding before the district court to
review the county judge's action on an *pplication for a retail
dealer's license to sell beer. The court concluded that the county
attorney could appear either on behalf of the county and state or as
a citizen. 200 S.W.2d at 877. It relied upon a former Penal Code
provision which excepted county officers and the state from posting
security for the cost of contesting the application or appealing the
county judge's order. See Alto. Bev. Code 9961.32(c), 61.34(d),
61.39. The statute imposedno express duty upon the county attorney
to either contest the application or appeal the county judge's order.
However, it is clear the court believed the county attorney could
appear in his official capacity in such proceedings.
p. 3727
Eonorable John W. Berry - Page 6 (a-788)
ability of a district attorney, criminal district attorney, or county
attorney to engage in the private practice of law. See Gov't Code
9546.002 (prosecutors subject to chapter 46); 46.005 (limitations on
law practice). For example, the provisions of chapter 46 apply to the
office of district attorney for the Slst judicial district (which
includes Karnes County), but do not apply to the office of County
See id. 5524.183; 46.002(l).
Attorney for Karnes County. --
SUMMARY
A county may oppose an application to amend a
radioactive materials license granted pursuant to
article 4590f. V.T.C.S., provided the county can
demonstrate that it has suffered or will suffer
actual injury or economic damage from the amend-
metit of the license. Such a county may obtain
judicial review of a final decision of the
Texas Radiation Control Agency pursuant to the
Administrative Procedure and Texas Register Act,
article 6252-13a, V.T.C.S. The commissioners
court of such county may expend county funds for
attorney's fees, expert witness fees, and other
related expenses to oppose an application to amend
a radioactive materials license if the commis-
slopers court finds it in the county's interest to
make such expenditures. The county attorney may,
with commissioners court approval. advise the
county concerning its rights and remedies under
article 4590f and represent it in judicial review
proceedings pursuant to section 11(e) of the act.
The district attorney may be employed by the
commissioners court to represent the county unless
such employment is prohibited by section 46.005 of
the Government Code.
JIM MATTOX
Attorney General of Texas
MARY KELLER
Executive Assistant Attorney General
JUDGE ZOLLIE STEAKLEY
Special Assistant Attorney General
RICK GILPIN
Chairman, Opinion Committee
Prepared by Rick Gilpin
Assistant Attorney General
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