Untitled Texas Attorney General Opinion

The Attorney General of Texas

May 26, 1981

MARKWHITE

Attorney General

Honorable Bennie Bock II Opinion No. MW-340

Chairman

Committee on Environmental Affairs Re: Whether Texas Parks and

House of Representatives Wildlife Commission may contract

Austin, Texas 78769 with a private attorney to

prosecute shrimp and confiscation

ceses

Dear Representative Bock:

The Texas Parks and Wildlife Department is a state agency under the

policy direction of the Parks and Wildlife Commission. Parks and Wildlife

Code SlLOlL Among other things, the department is responsible for

enforcing state laws which protect wildlife and marine life. SS12.001; 12.101.

You ask whether the department may:

contract with a private attorney to prosecute shrimp

and confiscation cases and other wildlife infringe-

ments of the law to aid parks and wildlife.

You advise that prosecutions of game laws have heretofore been undertaken

by local district attorneys’ offices.

Violations of the Parks and Wildlife Code provisions relating to wildlife

and marine life constitute misdemeanors or felonies, which call for a fine

and, in some instances, a jail sentence. See e.

SS6L901, 66.106, 76.037, 76.216, 77.020, 78.17i+I%i%Zsa~~o?Zi~tCs~~

violations are therefore guilty of criminal offenses. See also Penal Code

SSl.OS(b) (classification of offenses outside Penal CodeJml6 Tex. Jur.

2d Criminal Law SSl-6.

Texas law places the responsibility for representing the state in

prosecutions of criminal cases in the district and inferior courts in the hands

of county and district attorneys. Article V, section 21 of the Texas

Constitution provides that:

. . . The County Attorneys shall represent the State

in all cases in the District and inferior courts in

their respective counties; but if any county shall be

included in a district in which there shall be a

District Attorney, the respective duties of District

Attorneys and County Attorneys shall in such

counties be regulated by the Legislature.

p. 1117

Honorable Bennie Bock II - Page Two (~~-340)

Article 2.01 of the Code of Criminal Procedure provides that:

Each district attorney shall represent the State in all criminal

cases in the district courts of his district, except in cases where

he has been, before his election, employed adversely.

Article 2.02 of the Code of Criminal Procedure provides that:

The county attorney shall attend the terms of court in his

county below the grade of district court, and shall represent the

State in all criminal cases under examination or prosecution in

said county; and in the absence of the district attorney he shall

represent the State alone and, when requested, shall aid the

district attorney in the prosecution of any case in behalf of the

State in the district court.

See Garcia v. Laughlin, 285 S.W. 2d 191(Tex. 1955); Maud v. Terrell, 200 S.W. 375 (Tex.

1918); Brady v. Brooks, 89 S.W. 1052 (Tex. 1905); State v. Moore, 57 Tex. 307 (1882);

Shepperd v. Alanix, 303 S.W. 2d 846 (Tex. Civ. App. -San Antonio 1957, no writ);

Attorney General 6pinions MW-255 (1980); MW-24 (1979). These officers are therefore

responsible for representing the Parks and Wildlife Department in the district and

inferior courts in prosecutions of offenses arising under the Parks and Wildlife Code.

Because officers who are legally obligated to represent the state in the courts

may not be stripped of their authority, see,.e.g., Garcia v. Laughlin, ~~JIX, it is clear

that the Parks and Wildlife Department mav not hire orivate counsel to prosecute

criminal eases without the involvement of the district or county attorney.‘ But the

question remains whether it may use appropriated funds to hire a private attorney to

assist these officers in prosecuting these cases. Our courts have held that officers who

are responsible for representing the state in court may, under some circumstances, be

assisted in carrying out this obligation, provided such assistance is rendered in a

subordinate capacity and the officer remains in control of the litigation. See, e..g.,

Maud v. Terre& e, (upholding statute authorizing comptroller to contract with

“suitable person” to collect inheritance taxes on theory that statute did not purport to

deprive county attorney of his authority); Allen v. Fisher, 9 S.W. 2d 731 (Tex. 1928);

Brady v. Brooks, supra, (under article IV, section 22 of the Texas Constitution,

Attorney General may be given duty to represent state in various matters in district

court, along with county or district attorney); see also Attorney General Opinions

MW-255 (1980) (article 332d, V.T.C.S., authorizes Prosecutors Coordinating Council to

furnish prosecutorlal assistance to a district attorney at latter’s request); MW-24 (1979)

(statute authorizing Department of Human Resources staff attorneys to represent

department in litigation seeking child support upheld on ground that any such

representation is provided with implicit consent of Attorney General).

We think this question must be answered in the negative. While we believe that

the legislature could enact valid legislation authorizing the department to contract

with private counsel to assist county and district attorneys in performing their lawful

function, it has not done so. In our opinion, the department may exercise this power

only if the legislature clearly authorizes it to do so.

p. 1118

L .

Honorable Bennie Bock II - Page Three (~~-340)

The cases in this area do not address the precise question of whether an agency

may only hire private counsel for the purpose described above if the legislature

authorizes it to do so. But we believe that this conclusion follows from the discussion

and approach taken therein. In Maud v. Terre& e, for example, the court stated

that:

. . . ITI he powers thus conferred by the Constitution upon these

officials [the Attorney General and county and district

attorneys] are exclusive. The Legislature cannot devolve them

uoon others. Nor can it interfere with the rieht to exercise

them. . . It may provideassistance for the prop& discharge b

these officials of their duties, but since in the matter o

prosecuting the oleas of the State in the courts the oowers

reposed in-them are exclusive in their nature, it cannot, for the

performance of that function, obtrude other persons upon them

and compel the acceptance of their services. Wherever

provision is made for the services of other persons. . . it is the

constitutional right of the Attorney-General and the county and

district attorneys to decline them or not at their discretion,

ad, if availed of, the services are to be rendered in

subordination to their authority. (Emphasis added).

200 S.W. at 376. In State Board of Dental Examiners v. Bickham, 203 S.W. 2d 563 (Tex.

Civ. App. - Dallas 1947, no writ), which involved an appeal from an order of the board

suspending Bickham’s license to practice dentistry, the court stated, at p. 565-66, that:

. . .The provisions of Art 4550a. . . confer the power on the

Dental Board to employ necessary assistance to State

prosecuting officers in the enforcement of the law pertaining to

unlawful practice of dentistry. (Emphasis added).

Other relevant cases and Attorney General Opinions seem clearly to assume that such

statutory authority is a prerequisite; in fact, the question in most of them was whether

the particular statute at issue went too far, i.e., divested the Attorney General or the

county and district attorneys of their lawfulxthority. See, e.g., Garcia v. Laughlin,

supra; Attorney General Opinions MW-225; MW-24, supra

Our conclusion that an agency may not hie private counsel to assist county and

district attorneys in prosecuting criminal cases on its behalf unless it is specifically

authorized to do so is not affected by cases such as Powers v. Hauck, 399 F. 2d 322

(5th Clr. 1968); Ballard v. State, 519 S.W. 2d 426 (Tex. Crim. App. 1974); Bingham v.

State, 290 S.W. 2d 915 (Tex. Crlm. App. 1956); and Phillips v. State, 263 S.W. 2d 159

(Tex. Crlm. App. 1959). Those cases merely hold that a defendant’s constitutional

right to due process is not denied if a private attorney is permitted to participate in a

criminal prosecution as long as the district attorney retains control and management

of the prosecution. They imply nothing with regard to the cicumstances under which

private counsel may be retained.

p. 1119

Honorable Bennie Bock II - Page Four (~~-340)

It has been suggested that section 12.105 of the Parks and Wildlife Code affords

the required authority. That section provides as follows:

(a) The department may file complaints in the name of the

State of Texas to recover fines and penalties for violations of

the laws relating to game, birds, and fish.

(b) The department may file a complaint and commence

proceedings against an individual for violation the laws

relating to game, birds, and fish without the approval of the

count attorne of the county in which the proceedings are

-is added).

We assume the contention is that the term “commence proceedings” connotes

something more than merely filing a complaint, &, that it involves actual

prosecution of the case, and that if the department may commence proceedings

without the county attorney’s approval, it necessarily possesses the authority to hire

private counsel to do so.

We decline to construe section 12.105 this broadly. Were we to do so, we would

be forced to conclude that the statute is unconstitutional, because it would deprive

county attorneys of their authority to represent the department in prosecutions of

offenses arising under the Parks and Wildlife Code. In our opinion, section 12.105

merely authorizes the department to file a complaint without the county attorney’s

approval; it does not authorize anything more to be done without his involvement.

The phrase “and commence proceedings” is superfluous, because the act of filing a

complaint is itself what “commences proceedings” Once a complaint is filed, the

duties of the county and district attorneys are as prescribed by statute. See Code

Crim. Proc. arts. 2.01-2.08.

Neither does the General Appropriations Act, Acts 1979, 66th Leg., ch. 843, at

2445, provide the necessary authority. Article V, section 42 of the act provides that:

Prior to expenditure of funds for retaining outside legal counsel,

agencies and departments covered by this Act shall request the

Attorney General to perform such services. If the Attorney

General cannot provide such services, he shall so certify to the

requesting agency, who may then utilize appropriated fimds to

retain outside counsel.

5 at 2917. However, it is settled that general legislation cannot be enacted in an

appropriation bilL See Attorney General Opinion M-1199 (1972), which cites, among

other authorities, Moore v. Sheppard, 192 S.W. 2d 559 (Tex 1946); see also Attorney

General Opinion H-268 (1974) (appropriation bill may do no more than declare

established law). Thus, this provision does not provide authority for an agency to

contract with a private attorney; on the contrary, it merely sets forth a requirement

which must be met before an agency which is authorized to employ outside counsel

may use appropriated ftmds to do so. -See Attorney General Opinions MW-255, MW-191

(1980).

p. 1120

Honorable Bennie Bock II - Page Five (~~-340)

SUMMARY

Absent statutory authority permitting it to do so, the Parks

and Wildlife Department may not contract with a private

attorney to prosecute shrimp and confiscation cases and other

wildlife infringements of the law. No such statutory authority

exists.

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

Assistant Attorney General

APPROVED:

OPINION COMMITTEE

Susan L. Garrison, Chairman

Jon Bible

Timothy L. Brown

Rick Gilpin

Jim Moellinger

p. 1121