The opinion
Kr. S. Perry Brovn
Chairman& ExecutiveDirector
Texas EmploymentCommiesion
Austin, Texas
opinionlo. WW-7l.3
Re: Whether the Texas Employment
Ccmmiesionmay legallypay an
attorneyfor servicesrendered
in asaietlngthe AttorneyGeneral
Dear Mr. Brown: in an eminentdomain proceeding.
You have requestedan opiniona8 to whetherthe Texas EmploymentCom-
missionwas authorizedto employ and pay specialcounselto assist the At-
torneyGeneralIn preparingeminentdomain proceedings.You state that this
attorneywas employedpursuantto a requestfrom the AttorneyGeneralfor
aesistancein preparinga case to condemn land on which the Texas Xkployment
Commissionwas to erect buildings.
Under Section'7,ArticleVI, GeneralAppropriations,Acts 55th Aegis-
lature,RegularSession,1957,Chapter 385, pages 1144 and 1145, set out in
part here:
Y . . . Whe+e the AttorneyGeneral,DistrictAttorney,
CrimlnalDlstri& Attorney,County Attorney,or other lawyer
is requiredby constitutional or statutoryprovisionto repre-
sent a State Agency,State Official,State Board, or State
Department,no compensationshall be paid from any appropria-
tion made in this Act to any otherAttorneyfor repreeentlng
the State of Texas in the trial of a civil lawsuitexcept in
those cases where the Attorney General,DistrictAttorney,
CriminalDistrictAttorney,County Attorneyor other lavyer,
ae the caee may be, has requestedthat the attorneyor
attorney8employedby the particularState Agency,State
Official,State Departmentor State Board, aselatwith the
trial of the particularlaveuit. . 0 *"
r L
hfr.S. Perry Brown, page 2 (w-713)
The AttorneyGeneral 16 authorizedto requestthe asalstanceof counselem-
ployed by the particularagency involved. In this instancethe Texas E$lploy-
ment Commission,88 requested,employedRobert L. Bums to assist the Attorney
Generalin securinglend by eminentdomainproceedingsto be broughton be-
half of the State of Texas for the Texas EmploymentCommission.
This situationis aualogouato a preriouaAttorneyGeneral'sOpinion
~~-633 where the State BuildingCommissionhired an attorneyto assist the
AttorneyGeneral in preparingfor the acqui6ltionof land. Here the Commia-
sion haa the authorityto purohaeeland Just a8 the State BuildingCommission
did and the power on the part of both Commissionsto employattorneyscomea
from this power to acquireland for which the servicesof an attorneyare
needed rather than from a statutedirectlyauthorizingthe employmentof an
attorney.
The GeneralAppropriations Act, Howe Bill 133, Acts of the 55th
Legislature,RegularSeseion,1957,Chapter 385, pages 979-980,appropriated
funds for the developmentof buildingsto be wed by the Texas Employment
Commission,AttorneyGeneral'sOpinion~~-526 made it clear that the Commis-
sion conld purchasethe land with the agreementof the land owners. This
power to purchasethe land did not carry with it the power to condemn;80 it
was necessaryfor the Governorto authorizeand requestthe AttorneyGeneral
to bring a oondePnnatlon
suit under Article 5240,Vernon'sCivil Statutes,
which provideefor the acquisitionof land by purchaseor by condemnation.
Article 5240,Vernon'sCivil Statutea,state8 in part:
*rJhenany land shall be requiredby the State for any
characterof public we, the Governoris authorizedto pur-
chase said land, or the right to the use thereof,for such
purpose;or, fallingto agree with the owner on the price
thereof,such landmay be condemnedfor suoh publicwe in the
name of this State. Upon the directionof the Governor,
proceedingsahallbe institutedagainstthe owner of the land
by the AttorneyGeneralor under his directionby the district
or county attorney. . . .'
The euit la brou@t to condelrmland in the name of the State of Texas
by the Texas EmploymentCommissionand ie for the benefitof the Commission,
which haa a direct intereatsince appropriatedfunds for the Commissionwill
be wed to pay for the land and the buildingsto be erectedon the land.
Having the direct interestthat it doee, and the acquirementof building
sites being necesearyto furtherthe Act for which the Ccamnlasionwas estab-
lished,the Ccminlssion in furtheranceof the Act can employan attorneyto
assist in the preparationof the proceedingsunder Article5221b-9,Vemon'e
Civil Statutea,which reads as follows:
m. S. Perry Brown, page 3 (Ww-713)
"(a)~Dutiesand Powers of Oommiaaiont It shall be the
duty of the Conm.is~lonto administerthis Act; and It shall
have power and authorityto adopt,amend, or reaoindsuch
rules and reguLationa,to employ such Wr'BonB,make such
expenditures, requiresuch reporta,make such lnveetlge.tions,
and take such other action ae it deema necesearyor suitable
to that end. . . .“ (&nphaeisours.)
The legalityof the paymentof the Attorneyhas been questiomd on
two grounds.
The objectionto ArticleIV, Section22 of the Texas Constitutionby
the Comptrolleron the groundsthat an attorneyemployedby the Coimnieaion,
not being the AttorneyGsneral,could not representthe State in a legal
proceedingto 6eoum an officebuildinghas no basic since thie objection
wae answeredby the Suptie Court of Texas In Camp Y. Gulf ProductionCcm-
61 S.W.2d 773. It was alao answeredin Maude v. Terrell,109 Tex. 61,
F
2 5 S.W. 639 where this pdint was raised and overruled. These oaaee hold
that an Act of the Legislaturewould not be held unoonatitutional unlese
it clearlydeprivedthe AttorneyGeneralof his authorityto representthe
State.
The secondobjectionraised ae to the legalityof the employmentby
the Colmaieaionof an attorneyto aid the AttorneyGeneralis that Article
5221b-15,Vernon'sCivil Statutee,prohibitsanyone other than those attor-
neye who are regularlyemployedby the Conunlsaionto aid the Attorney
General. This ass-es that since this attorneywaa employedsolelyto help
In one matter that he was not "regularly"employedby the Commiseion.
This cbjectionis withoutmerit since the attorneyemployedby the Com-
mission to aid the AttorneyGeneral in the mentionedlitigationwas "reg&rly"
employedby the Commi6alon. The word "regularly*is an adverband meana
In regularmanner. The word "regular",hae been held to mean to be *agreeable
to an eatabliahedlaw" (CenturyDictionaryquotingWise v. State Veterinary
Bs, I.38Michigan428, 432, 101NW 562; WebetersDictionaryquoting$fers v.
Resbeok,~upr~). The word has aleo been held to mean "duly authorized
(VebstersDictionaryquotingMerchants' Iiational Bank v. ContinentalElational
B&, 98 CaliforniaA 523, 277 Pac. 354). The word "regularly"has been held
to be not eynoryrmouawith "continuously"(Ex. p. Cain, 39 Alabama 440).
Since this attorneyemployedby the Commissionwas employedunder the authority
of Article5221b-8Vernon'sCivil Statutes,his employmentcertainlywe,8
*regularly"made, Thie opinionoverrulesAttorneyGeneral'sOpinionO-708
insofarae the two opinionsconflict.
Mr. S. Perry Brown, page 4 (WW-713)
It,18 our opinionthat the Texas Employment~Commfasion
was authorized
to employ an attorneyto assiatthe AttorneyGeneral in preparingfor Eminent
Domain proceedingaauthorizedby the Governorfor the benefitof the Texas
EmploymentCozonissfon.
The Texas EmploymentCommissionmay legally
pay an attomeg for eervieea renderedin
aasistingthe AttorneyCeneral in an Eminent
Domafn Proceeding.
Yours very'truly,
WILL WIISOH
Attorney Generalof Texas
JCS:im:me
APPROVFJh
OPIIVIOICOMMITrEE
Gee. P. Blackbum, Chairman
GordonC. Caes
WallaceFinfrock
Riley EugeneFletcher
Jay D, Howell
REVIEWEDFORTREGlTORKEY GEXERAL
BY: W. V. Geppert