Texas Attorney General Opinion: MW-255 Page: 3 of 5
This text is part of the collection entitled: Texas Attorney General Opinions and was provided to The Portal to Texas History by the UNT Libraries Government Documents Department.
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Honorable Bob Bullock - Page Three
of such counties. .. and three (3) of whom shall be appointed by
the Board of Directors of the Chamber of Commerce of the
county seat of such county.
Responding to the contention that this method of appointing members of the Board of
County Development contravened article II, section 1, the court cited earlier Texas
cases that had approved a statute which provided for appointments by the Speaker of
the House, Dorenfield v. State, 73 S.W. 2d 83 (Tex. 1934), as well as a home-rule city
ordinance providing that members of a Board of Development would be appointed from
a list named by that board, Davis v. City of Taylor, 67 S.W. 2d 1033 (Tex. 1934), and
concluded that "we can see little difference in confiding the power of appointment to
an office other than the executive department and confiding it to an unofficial body."
146 S.W. 2d at 1035. The Supreme Court, although it overturned the taxing provisions
of the statute, did not disturb the lower court's holding on this issue. In our opinion,
therefore, Miller may validly be cited for the proposition that a statutory delegation of
the power of appointment to an unofficial body such as the one at issue here does not
violate article II, section I of the Texas Constitution.
Section 1 of article 332d states that "the legislature recognizes that the
prosecutor performs an executive function which has a significant effect on the
judicial branch and on law enforcement" and declares the purpose of the statute to be
to:
provide a centralized agency capable of delivering technical
assistance, educational services, and professional development
training to the prosecutors of Texas and their assistants and to
improve the administration of criminal justice through
professionalization of the prosecuting attorney's office.
Clearly, in the legislature's judgment, the objectives set forth in section I of article
332d could best be accomplished by a Coordinating Council that contains members who
are either appointed by the Texas District and County Attorneys Association or who
occupy their seat by virtue of being president of that association. We have noted that
the legislature is authorized to legislate on any subject not expressly or by necessary
implication denied by the constitution, and that its action will not be annulled unless it
clearly and unequivocally contravenes the constitution. Because article II, section 1, as
construed in Miller v. El Paso, supra, does not, in our opinion, clearly prohibit the
legislature from delegating authority in the manner provided for in article 332d,
V.T.C.S., we conclude that no constitutional problem exists under that constitutional
provision.
You also ask a number of questions regarding the authority of the Prosecutors
Coordinating Council to contract with a private attorney to assist the district attorney
of Bell County in preparing and trying a criminal case. As we stated in Attorney
General Opinion MW-191 (1980), the Prosecutors Coordinating Council may not spend
appropriated funds to hire an outside attorney to assist a district attorney in
prosecuting a case, unless the attorney general has been requested to perform thep. 806
(MW-255)
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Texas. Attorney-General's Office. Texas Attorney General Opinion: MW-255, text, October 10, 1980; (https://texashistory.unt.edu/ark:/67531/metapth272100/m1/3/?q=%22%22~1: accessed July 13, 2024), University of North Texas Libraries, The Portal to Texas History, https://texashistory.unt.edu.; crediting UNT Libraries Government Documents Department.