Article IV, Section 22 of the Texas Constitution (" ... ")

As amended November 2, 1999:

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.

Editor Comments

Whether the attorney general or the county and district attorneys (see Article V, Section 21) are required to represent the state in certain cases has been the subject of several Texas Supreme Court decisions.

—Attorney Steve Smith

Recent Decisions

• Perry v. Del Rio, 67 S.W.3d 85, 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.")

Historic Decisions

• State v. Thomas, 766 S.W.2d 217, 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.")

• State v. Southwestern Bell Telephone Co., 526 S.W.2d 526, 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.")

• Ex parte Hughes, 129 S.W.2d 270, 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.")

• 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.")

• Jones v. Williams, 45 S.W.2d 130, 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.")

• 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, 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.")

• State v. Southern Pac. R. R. Co., 24 Texas 80, 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.")

Library Resources

• Vernon's Annotated Constitution of the State of Texas (this multi-volume and up-to-date resource is available at all law libraries and many municipal libraries)

• The Texas State Constitution: A Reference Guide (this one-volume resource is available at most law libraries and some municipal libraries)

• The Constitution of the State of Texas: An Annotated and Comparative Analysis (this two-volume resource is available at most law libraries and some municipal libraries)

Online Resources

• Constitution of the State of Texas (1876) (this resource is published and maintained by the University of Texas School of Law)

• Amendments to the Texas Constitution Since 1876 (this resource is published and regularly updated by the Legislative Council)

• Reports Analyzing Proposed Amendments (this resource is published and regularly updated by the Legislative Reference Library)