Texas Constitution:Article IV, Section 22 and Texas Constitution:Article IV, Section 1: Difference between pages

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{{DISPLAYTITLE:Article IV, Section 22 of the Texas Constitution (''<small>" ... "</small>'')}}{{Texas Constitution|text=As amended November 2, 1999:
{{DISPLAYTITLE:Article IV, Section 1 of the Texas Constitution (''<small>"Officers Constituting Executive Department"</small>'')}}{{Texas Constitution|text=As amended November 7, 1995:


'''The Attorney General shall represent the State in all suits and pleas in the Supreme Court of the State in which the State may be a party, and shall especially inquire into the charter rights of all private corporations, and from time to time, in the name of the State, take such action in the courts as may be proper and necessary to prevent any private corporation from exercising any power or demanding or collecting any species of taxes, tolls, freight or wharfage not authorized by law. He shall, whenever sufficient cause exists, seek a judicial forfeiture of such charters, unless otherwise expressly directed by law, and give legal advice in writing to the Governor and other executive officers, when requested by them, and perform such other duties as may be required by law.'''
'''The Executive Department of the State shall consist of a Governor, who shall be the Chief Executive Officer of the State, a Lieutenant Governor, Secretary of State, Comptroller of Public Accounts, Commissioner of the General Land Office, and Attorney General.'''


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Whether the attorney general or the county and district attorneys (see Article V, Section [[Texas Constitution:Article V, Section 21|21]]) are required to represent the state in certain cases has been the subject of several Texas Supreme Court decisions.
This section originally created seven executive offices. However, in 1995, voters overwhelmingly approved an amendment that abolished the office of state treasurer.
 
The officers listed in this section have no inherent powers. They may exercise only the authority granted by other parts of the state constitution or by the Legislature.


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* ''Perry v. Del Rio'', 67 S.W.3d 85, [https://scholar.google.com/scholar_case?case=7715699698971836172#p92 92] (Tex. 2001) (citations omitted) ("We have recognized that the Attorney General, as the State's chief legal officer, has broad discretionary power in carrying out his responsibility to represent the State. But we have held that this power does not permit the Attorney General 'to effectuate a valid reapportionment of senatorial districts himself,' because only the trial court's judgment can accomplish this when the Legislature fails to act. This is because the Attorney General can only act within the limits of the Texas Constitution and statutes, and courts cannot enlarge the Attorney General's powers.")
None.


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* ''State v. Thomas'', 766 S.W.2d 217, [https://scholar.google.com/scholar_case?case=9336133137520595676#p219 219] (Tex. 1989) ("We conclude that article IV, section 22 uses the term 'courts' in a generic sense to refer to an adjudicative forum. It is implied within the meaning of this constitutional provision that the Attorney General will be able to take action in the adjudicative forum of first jurisdiction regardless of whether the label attached to that forum is 'court' or 'agency.' . . . The legislature cannot by statute abrogate the Attorney General's constitutional grant of power. Only by constitutional amendment can the legislature alter the constitutional balance of powers; it cannot do so by legislation.")
* ''Garcia v. Laughlin'', 285 S.W.2d 191, [https://scholar.google.com/scholar_case?case=231626589781746982#p194 194] (Tex. 1955) ("Article 4, § 22, defines the duties and powers of the Attorney General to represent the State '* * * in all suits and pleas . . . . The powers conferred by the Constitution upon the state officials are generally held to be exclusive, and except in the manner authorized by the Constitution, these powers cannot be enlarged or restricted. ''Maud v. Terrell'', supra; ''Brady v. Brooks'', 99 Tex. 366, 89 S.W. 1052; ''Harris County v. Stewart'', 91 Tex. 133, 41 S.W. 650; ''State v. International & G. N. R. Co.'', 89 Tex. 562, 35 S.W. 1067; ''Staples v. State'', supra.")
 
* ''State v. Ferguson'', 125 S.W.2d 272, [https://cite.case.law/pdf/10231472/State%20v.%20Ferguson,%20125%20S.W.2d%20272%20(1939).pdf#page=5 276] (Tex. 1939) ("[A] judge has no more power to direct and supervise an officer of the executive department of government in the manner and method of discharging his official duties than would a sheriff or other executive officer have to direct a judge in the manner and method of discharging his official duties. Were a sheriff to serve notice upon a judge to speed up the trial of his cases so that litigants might not be damaged by delay or should direct the judge to enter no judgment except one which he had good reason to believe was correct, no one would champion his right to do so.")


* ''State v. Southwestern Bell Telephone Co.'', 526 S.W.2d 526, [https://scholar.google.com/scholar_case?case=9248602116426897287#p531 531] (Tex. 1975) ("It is our further opinion that the Constitution of Texas confers on the Attorney General the authority to institute and maintain suit in the name of the State to restrain Bell from exacting unreasonably high charges for its intrastate telephone services in Texas . . . . It is self-evident, in our view, that the demand and collection by Bell of unreasonably high—and hence unlawful—charges for the use of its intrastate telephone service by the people of Texas would be an abuse of its corporate power as a public utility, the prevention of which would subserve the public interest.")
* ''Brand v. San Patricio County'', 80 S.W.2d 460, [https://cite.case.law/pdf/10245869/Brand%20v.%20San%20Patricio%20County,%2080%20S.W.2d%20460%20(1935).pdf#page=2 461] (Tex.Civ.App.–San Antonio 1935, ref'd) ("In support of this contention appellant cites article 1735, R. S. 1925, which reads as follows: 'The Supreme Court only shall have power, authority or jurisdiction to issue the writ of mandamus or injunction or any other mandatory or compulsory writ or process against . . . . The banking commissioner is not mentioned in the above provision of the Constitution, and it has been in effect held that the provisions of article 1735 apply to the executive officers named in article 4, § 1, of the Constitution.")


* ''Ex parte Hughes'', 129 S.W.2d 270, [https://cite.case.law/pdf/2321161/Ex%20parte%20Hughes,%20133%20Tex.%20505,%20129%20S.W.2d%20270%20(1939).pdf#page=13 277] (Tex. 1939) ("It was held that no such power existed in the Attorney General. The rule applied by us in the instant case is fundamentally the same as the rule applied in ''Allred v. Beggs'', supra. The rule is: When the sovereignty goes into the courts it has created, it goes, not as the sovereignty, but as any other litigant. ''Anderson, Clayton & Co. v. State'', 122 Tex. 530, 62 S.W.2d 107, 110. Any other rule would be destructive of our fundamental law which divides the powers of government into three co-ordinate branches, and furthermore any other rule would be contrary to the very basic principles of our judicial system.")
* ''Dickson v. Strickland'', 265 S.W. 1012, [https://texaslegalguide.com/images/265_SW_1012.pdf#page=4 1015] (Tex. 1924) ("The qualifications of public officers, when defined by the Constitution, are as clearly beyond change by the Legislature as are the qualifications of electors when fixed by constitutional provision. It is the declared law, by both the Court of Criminal Appeals and the Supreme Court of this state, that it is beyond the power of the Legislature to add an additional qualification for an elector to those prescribed by the Constitution. ''Solon v. State'', 54 Tex. Cr. R. 261, 114 S.W. 349; ''Koy v. Schneider'', 110 Tex. 378, 218 S.W. 479, 221 S.W. 880.")


* ''Camp v. Gulf Prod. Co.'', 61 S.W.2d 773, 777 (Tex. 1933) ("[A]n act will not be held unconstitutional, as violative of the above-named constitutional provisions, unless it, by plain and unambiguous language, deprives the county and district attorneys and the Attorney General of their authority to represent the state in the suits prosecuted under such act. There is nothing in the instant act to indicate any purpose or intention to curtail or abridge any right or duty conferred or imposed by the Constitution, the statute, or the common law, upon county and district attorneys, and the Attorney General to represent the interest of the state in all such proceeding.")
* ''Terrell v. Sparks'', 135 S.W. 519, [https://cite.case.law/pdf/8279644/Terrell%20v.%20Sparks,%20135%20S.W.%20519%20(1911).pdf#page=3 521] (Tex. 1911) ("If the effect of that agreement is to constitute Terrell an officer of the state, then his appointment and continuance in office would depend upon the continuance of the term of the Attorney General, who appointed him, and his authority terminated when the Attorney General qualified for his succeeding term and Gov. Campbell went out of office . . . . We are of opinion that Terrell had no official relation to Lightfoot, and that his contract did not terminate with the expiration of the term of office of the Governor and the Attorney General.")


* ''Jones v. Williams'', 45 S.W.2d 130, [https://texaslegalguide.com/images/045_S.W.2d_130.pdf#page=2 131] (Tex. 1931) ("For many years the Attorney General's department has ruled that there was no constitutional basis for the enactment of measures of this character, except section 10 of article 8, authorizing the release of taxes . . . . However, when a controversy finally reaches the courts for determination, the opinions of the Attorney Generals, rendered in due course, while entitled to careful consideration by the courts, and quite generally regarded as highly persuasive, are not binding on the judiciary, and it is our duty now to enter upon an independent inquiry as to the validity of the act before us.")
* ''Day Land & Cattle Co. v. State'', 4 S.W. 865, [https://texaslegalguide.com/images/Vol_004_SWR_865.pdf#page=3 867] (Tex. 1887) ("It may be that, in the exercise of the general powers conferred upon the governor of the state, as its chief executive officer, he would have the power to require the attorney general to institute, or to cause to be instituted, a suit of this character, when in his judgment the welfare of the state required it, even though the legislature had not so directed; but, in a government in which the duties of all officers, as well as their powers, are defined by written law, no power ought to be exercised for which warrant is not there found.")


* ''State v. International & G. N. R. Co.'', 35 S.W. 1067, 1068 (Tex. 1896) ("We are of the opinion that the conferring upon the attorney general [in Article IV, Section 22] of the specific authority to 'take such action in the courts as may be proper and necessary to prevent any private corporation from exercising any power * * * not authorized by law' evidences an intent to make such authority exclusive in such officer, and must be held as an exception to the general authority conferred upon the county attorney [in Article V, Section 21] to 'represent the state in all cases in the district and inferior courts in their respective counties.'")
* ''State v. Moore'', 57 Tex. 307, [https://texaslegalguide.com/images/057_Tex_307.pdf#page=4 310-11] (1882) ("[T]he officers of the different departments are to a very large extent independent of and free from the control of the heads of other departments, yet in the very nature of things, in the details of business, occasions will and do arise, where officers of the executive department do and ought to exercise a power at least advisory over some officers, who, although classed in a different department, exercise powers in fact partaking more of the character of executive power than of judicial power; among these are district and county attorneys, sheriffs and constables.")


* ''State v. Moore'', 57 Tex. 307, [https://texaslegalguide.com/images/57_Tex._307.pdf#page=8 314] (1882) ("This article is broad enough to confer all the power claimed; but it is not believed that it was the intention of the constitution to confer, by the general clause above referred to, power upon the legislature to give to the attorney general power to perform those acts which the constitution itself conferred upon county attorneys; but that it was intended thereby to give the legislature power to confer upon the attorney general such powers as might be deemed necessary in regard to matters which had not been expressly conferred by the constitution upon some other officer.")
* ''Texas v. Cook'', 57 Tex. 205, [https://cite.case.law/pdf/2177561/State%20v.%20Cook,%2057%20Tex.%20205%20(1882).pdf#page=4 208] (1882) ("The point was made below, and is presented here, that the act authorizing the suit made no provision for service, and that in the absence of some such provision, service on the governor of the state was insufficient. We entertain no doubt that the court was authorized to treat this as good service. No statutory mode having been provided for bringing the state into court, it was competent for the court to recognize service on the chief executive officer of the state, or the attorney general, the legal representative of the state, as sufficient. Wheeler ''v''. State, 8 Tex., 230.")


* ''State v. Southern Pac. R. R. Co.'', 24 Texas 80, [https://cite.case.law/pdf/2112131/State%20v.%20Southern%20Pacific%20Railroad,%2024%20Tex.%2080%20(1859).pdf#page=38 117-18] (1859) ("The power of the governor may be advisory or suggestive of duty in this case, as it is in many of his functions. . . . That is an inconvenience, which is consequent upon maintaining the independence of the inferior officers. Its only effect may be, to prevent suits from being brought occasionally, which might otherwise be brought. But this want of subjection, and the consequent possibility of a want of harmony in executive officers, do [sic] not affect the question of right to maintain the suit. It is the duty imposed, by law, on the officer, who must bring the suit, that constitutes the right to bring and maintain it.")
* ''Houston Tap & B. Ry. Co. v. Randolph'', 24 Tex. 317, [https://texaslegalguide.com/images/24_Tex._317.pdf#page=27 343] (1859) ("This being the case in the United States government, results in the entire unity of its executive department. The absence of that absolute power of the chief executive in this state, must occasionally produce a want of harmony in the executive administration, by the inferior officers of that department, declining to comply with the wishes, or to follow the judgment of the governor. That is an inherent difficulty in the organization of that department, and the conflicts arising out of it, cannot be adjudicated or settled by the judiciary.")


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[[Category:TxCon ArtIV Sec]]
[[Category:TxCon ArtIV Sec]]

Revision as of 15:00, July 25, 2023

As amended November 7, 1995:

The Executive Department of the State shall consist of a Governor, who shall be the Chief Executive Officer of the State, a Lieutenant Governor, Secretary of State, Comptroller of Public Accounts, Commissioner of the General Land Office, and Attorney General.

Editor Comments

This section originally created seven executive offices. However, in 1995, voters overwhelmingly approved an amendment that abolished the office of state treasurer.

The officers listed in this section have no inherent powers. They may exercise only the authority granted by other parts of the state constitution or by the Legislature.

—Attorney Steve Smith

Recent Decisions

None.

Historic Decisions

  • Garcia v. Laughlin, 285 S.W.2d 191, 194 (Tex. 1955) ("Article 4, § 22, defines the duties and powers of the Attorney General to represent the State '* * * in all suits and pleas . . . . The powers conferred by the Constitution upon the state officials are generally held to be exclusive, and except in the manner authorized by the Constitution, these powers cannot be enlarged or restricted. Maud v. Terrell, supra; Brady v. Brooks, 99 Tex. 366, 89 S.W. 1052; Harris County v. Stewart, 91 Tex. 133, 41 S.W. 650; State v. International & G. N. R. Co., 89 Tex. 562, 35 S.W. 1067; Staples v. State, supra.")
  • State v. Ferguson, 125 S.W.2d 272, 276 (Tex. 1939) ("[A] judge has no more power to direct and supervise an officer of the executive department of government in the manner and method of discharging his official duties than would a sheriff or other executive officer have to direct a judge in the manner and method of discharging his official duties. Were a sheriff to serve notice upon a judge to speed up the trial of his cases so that litigants might not be damaged by delay or should direct the judge to enter no judgment except one which he had good reason to believe was correct, no one would champion his right to do so.")
  • Brand v. San Patricio County, 80 S.W.2d 460, 461 (Tex.Civ.App.–San Antonio 1935, ref'd) ("In support of this contention appellant cites article 1735, R. S. 1925, which reads as follows: 'The Supreme Court only shall have power, authority or jurisdiction to issue the writ of mandamus or injunction or any other mandatory or compulsory writ or process against . . . . The banking commissioner is not mentioned in the above provision of the Constitution, and it has been in effect held that the provisions of article 1735 apply to the executive officers named in article 4, § 1, of the Constitution.")
  • Dickson v. Strickland, 265 S.W. 1012, 1015 (Tex. 1924) ("The qualifications of public officers, when defined by the Constitution, are as clearly beyond change by the Legislature as are the qualifications of electors when fixed by constitutional provision. It is the declared law, by both the Court of Criminal Appeals and the Supreme Court of this state, that it is beyond the power of the Legislature to add an additional qualification for an elector to those prescribed by the Constitution. Solon v. State, 54 Tex. Cr. R. 261, 114 S.W. 349; Koy v. Schneider, 110 Tex. 378, 218 S.W. 479, 221 S.W. 880.")
  • Terrell v. Sparks, 135 S.W. 519, 521 (Tex. 1911) ("If the effect of that agreement is to constitute Terrell an officer of the state, then his appointment and continuance in office would depend upon the continuance of the term of the Attorney General, who appointed him, and his authority terminated when the Attorney General qualified for his succeeding term and Gov. Campbell went out of office . . . . We are of opinion that Terrell had no official relation to Lightfoot, and that his contract did not terminate with the expiration of the term of office of the Governor and the Attorney General.")
  • Day Land & Cattle Co. v. State, 4 S.W. 865, 867 (Tex. 1887) ("It may be that, in the exercise of the general powers conferred upon the governor of the state, as its chief executive officer, he would have the power to require the attorney general to institute, or to cause to be instituted, a suit of this character, when in his judgment the welfare of the state required it, even though the legislature had not so directed; but, in a government in which the duties of all officers, as well as their powers, are defined by written law, no power ought to be exercised for which warrant is not there found.")
  • State v. Moore, 57 Tex. 307, 310-11 (1882) ("[T]he officers of the different departments are to a very large extent independent of and free from the control of the heads of other departments, yet in the very nature of things, in the details of business, occasions will and do arise, where officers of the executive department do and ought to exercise a power at least advisory over some officers, who, although classed in a different department, exercise powers in fact partaking more of the character of executive power than of judicial power; among these are district and county attorneys, sheriffs and constables.")
  • Texas v. Cook, 57 Tex. 205, 208 (1882) ("The point was made below, and is presented here, that the act authorizing the suit made no provision for service, and that in the absence of some such provision, service on the governor of the state was insufficient. We entertain no doubt that the court was authorized to treat this as good service. No statutory mode having been provided for bringing the state into court, it was competent for the court to recognize service on the chief executive officer of the state, or the attorney general, the legal representative of the state, as sufficient. Wheeler v. State, 8 Tex., 230.")
  • Houston Tap & B. Ry. Co. v. Randolph, 24 Tex. 317, 343 (1859) ("This being the case in the United States government, results in the entire unity of its executive department. The absence of that absolute power of the chief executive in this state, must occasionally produce a want of harmony in the executive administration, by the inferior officers of that department, declining to comply with the wishes, or to follow the judgment of the governor. That is an inherent difficulty in the organization of that department, and the conflicts arising out of it, cannot be adjudicated or settled by the judiciary.")

Library Resources

Online Resources

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