Case Information

*1 September 22, 1987 Mr. William M. Hale Opinion No. JM-791 Executive Director

Texas Comission on Human Rights Re: Authority of the Attorney General the Texas P. 0. Box 13493 Austin, Texas Commission on Human Rights 78711 Dear Mr. Hale:

You request an opinion on the authority of the attorney the Texas Commission on Euman Rights in litigation the Commission on &man Rights Act. 5221k, V.T.C.S., This statute was enacted implement federal policies against employment discrimination embodied in title VII of the Civil Rights Act of 1964, 42 U.S.C. §ZOOOe et seq.; V.T.C.S. art. 5221k. 91.02(l).

The commission consists of six members appointed by the governor the advice and consent of the senate. V.T.C.S. art. 5221k, The commission has authority to meet and exercise its 03.01(a). powers anywhere within the state, except in a political subdivision which has created a local commission of human relations pursuant sections 4.01 through 4.04 of article 5221k, V.T.C.S. See Attorney JM-228 (1984) (local human rights General Opinion Nos. JM-275. commissions). The commission may "receive, investigate, seek and pass on complaints alleging violations [article conciliate, 5221k, V.T.C.S.], and file civil actions to effectuate the purposes this Act." V.T.C.S. art. 5221k, §3.02(6); sea also V.T.C.S. art. 5221k. 57.01(a) (commission's power to bring civil action).

The comrrission is a state agency with authority to bring civil suits to carry out the purposes of article 5221k, V.T.C.S. on Human Rights Act does not expressly Commission shall the commission. It provides that the cormnission has power

to employ an executive director and authorize employment other staff members, including any necessary or clerks other representatives or agents, fix compensation executive director or other staff members, representatives, or agents. (Emphasis added.)

V.T.C.S. art. 5221k, §3.02(3). Prior opinions have determined that similar do not limit the constitutional authority of the state in court, and that staff of a state agency may appear in court for the agency only in subordination the authority general. Attorney General Opinion MW-24 (1979) ; see also Attorney General Opinion Nos. JM-28 (1983); H-268 (1974); C-782 (1966) (overruled in part by Attorney General Opinion MW-24).

The courts have interpreted the constitution to confer upon the and the county or district the exclusive the state. Maud v. Terrell, 200 S.W. 375 (Tex. 1918). Article IV, section 22, of the Texas Constitution provides in part:

The Attorney General . . . &all State in all suits and pleas in the Supreme Court in which thm e State may be a party, and shall esueciallv inouire into charter rights of all private corporations, and from time time, the name of the State, take such action as may be proper necessary to prevent any private corporation from exercising any power or demanding or collecting any species taxes, tolls, freight or wharfage not authorized by law. He shall, whenever sufficient cause exists, seek a judicial for- feiture such charters, unless otherwise expressly directed by law, and give legal advice in writing the Governor and other executive when requested them, and perform officers, such other duties as may be required by law. . . . (Emphasis added.) 4395, V.T.C.S., provides

[t]he Attorney General shall prosecute and defend

all actions the Supreme Court or the Courts of Civil Appeals in which the State may be interested.

1. This provision has been recodified as section 402.021 of the Government Code, which became effective September 1, 1987. Acts 1987, 70th Leg., ch. 147. 501, 8, at 648, 1064. The recodification substitutes “courts of appeals” for “Courts of Civil Appeals.” Id. - 41, at 648, 659. *3 V, section 21, of the Texas Constitution provides in

part:

The County Attorneys shall in all cases in the District and inferior courts their respective counties; but if any county shall be included in a district in which there shall be a District Attorney, the respective duties District Attorneys and County Attorneys shall such counties be regulated by the Legislature.

Texas have held that the powers conferred these constitutional on the ~attorney general and the county or district are exclusive, and that the legislature may not confer them on others or interfere the right to exercise them. Maud V. Terrell, m; Hill County v. Sheppard, 178 S.W.Zd 261 (Tex. 1943); Brady v. Brooks, 89 S.W. 1052 (Tex. 1905); State v. Moore, 57 Tex. 307 (1882).

Article V, section 21 places on the county attorney the duty to the in district inferior courts, but the legislature has authority under article IV, section 22

to create additional causes of action in favor of the State and intrust their prosecution, whether in the trial or in the appellate courts, solely the Attorney General.

Maud v. Terrell, 200 S.W. at 376; State v. Walker-Texas Investment 325 S.W.Zd 209 (Tex. Civ. App. - San Antonio), writ ref'd n.r.e. co.. 1959) per curiam sub nom. Smith v. State, (relying on and explaining quoted language from Maud v. Terrell). Thus, even though article IV, section 22 expressly refers only suits and pleas-in the supreme court, this constitutional provision authorizes legislature extend general's representation the state lower courts. The opinions State v. Walker-Texas Investment Co., w, discuss this legislative authority under article IV, section 22.

In Walker-Texas Investment Co., general brought suit in district court to enjoin defendant company from charging usurious interest. He acted under the express former article 4646b, V.T.C.S., Acts 1943, 48th Leg., ch. 144. at 228. Defendants contended that the attorney could not bring the suit on behalf of the state without joinder of the district that article 4646b. V.T.C.S.. was unconstitutional because it conflicted with article V, section 21, of the constitution. The court civil appeals discussed case law in detail and concluded *4 (m-791) article 4646b, V.T.C.S., was constitutional. In enacting statute, the legislature

created a cause of action favor the State

and authorized the Attorney General to bring and

prosecute such an action the district inferior courts without the necessity of being joined by either the District or County Attorney of the county in which the suit is filed.

State v. Walker-Texas Investment Co., 325 S.W.Zd at 212-13. supreme court refused the application for writ of error, no reversible error, in a per curiam opinion which included the following statement:

Under the holding this Court in Maud v. Terrell, 109 Tex. 97, 200 S.W. 375, it is clear that when the Legislature creates a new or additional cause of action in favor it may also constitutionally authorize the Attorney General to prosecute such cause of action in both the trial and appellate the State.

Smith v. State, 328 S.W.2d 294, 295 (Tex. 1959).

The Texas Constitution places in the attorney general and the district or county the exclusive power the 5221k, V.T.C.S.. would be unconstitutional if it state. any other the state, except allowed subordination designated the relevant We assume that the legislature intended constitutional provision. enact a constitutional statute. See Gov't Code 1311.021(l). We therefore must read article 5221k. V.T.C.S., together constitutional we have discussed. In article 5221k, V.T.C.S., legislature has created a new cause of action which may be brought in district court by the attorney general or by other subject to his supervision and control. See Maud v. Terrell. supra; State v. Walker-Texas Investment Co., E. Since 5221k is administered by a state agency, and since the cause - of action it creates is a matter of statewide concern, and not the district is the appropriate officer the commission in civil actions. See generally Brady v. Brooks, 89 S.W. 1052 1905) (legislature, constitutional to assign attorney general additional duties, may authorize him to sue for delinquent gross receipts taxes and penalties in district court); Hill V. Texas Water Quality Board, 568 S.W.Zd 738 (Tex. Civ. App. - Austin 1978, writ ref'd n.r.e.) (attorney has exclusive right and power agencies); Shepperd v. Alanis, (Tex. Civ. App. - San _.

Mr. Willian kl. Eale - Page 5

Antonio 1957, no writ) (it is principal function of district county attorneys to prosecute the violations of criminal law); State v. Barney. 164 S.W.Zd 55 (Tex. Civ. App. - San Antonio 1942, writ ref d w.0.a.) (purely local action to remove sheriff should have been brought by district , not attorney general) (holding approved in Garcia v. Laughlin, 1955)). Any staff or outside attorney employed by the commission may the commission in court only subject to the supervision direction of the attorney general.

SUMMARY has the Texas Commission on Human Rights litigation 5221k, V.T.C.S. Any staff or other attorney employed by the

connnission may represent the commission in court

only subject to the supervision and direction general. JIM MATTOX Attorney General of Texas MARY KKLLER

Executive Assistant Attorney General

JUUGE ZOLLIE STEAKLEY

Special Assistant Attorney General

RICK GILPIN

Chairman, Opinion Cormaittee

Prepared by Susan L. Garrison

Assistant Attorney General