Attorney General Opinion WW-0713

Kr. S. Perry Brovn Chairman & Executive Director Texas Employment Commiesion Aus tin, Texas opinion lo. WW-7l.3 Re: Whether the Texas Employment Ccmmiesion may legally pay an attorney for services rendered in asaietlng the Attorney General Dear Mr. Brown: in an eminent domain proceeding. You have requested an opinion a8 to whether the Texas Employment Com- mission was authorized to employ and pay special counsel to assist the At- torney General In preparing eminent domain proceedings. You state that this attorney was employed pursuant to a request from the Attorney General for aesistance in preparing a case to condemn land on which the Texas Xkployment Commission was to erect buildings. Under Section '7, Article VI, General Appropriations, Acts 55th Aegis- lature, Regular Session, 1957, Chapter 385, pages 1144 and 1145, set out in part here: Y . . . Whe+e the Attorney General, District Attorney, CrimlnalDlstri& Attorney, County Attorney, or other lawyer is required by constitutional or statutory provision to repre- sent a State Agency, State Official, State Board, or State Department, no compensation shall be paid from any appropria- tion made in this Act to any other Attorney for repreeentlng the State of Texas in the trial of a civil lawsuit except in those cases where the Attorney General, District Attorney, Criminal District Attorney, County Attorney or other lavyer, ae the caee may be, has requested that the attorney or attorney8 employed by the particular State Agency, State Official, State Department or State Board, aselat with the trial of the particular laveuit. . 0 *" r L hfr. S. Perry Brown, page 2 (w-713) The Attorney General 16 authorized to request the asalstance of counsel em- ployed by the particular agency involved. In this instance the Texas E$lploy- ment Commission, 88 requested, employed Robert L. Bums to assist the Attorney General in securing lend by eminent domain proceedings to be brought on be- half of the State of Texas for the Texas Employment Commission. This situation is aualogoua to a prerioua Attorney General's Opinion ~~-633 where the State Building Commission hired an attorney to assist the Attorney General in preparing for the acqui6ltion of land. Here the Commia- sion haa the authority to purohaee land Just a8 the State Building Commission did and the power on the part of both Commissions to employ attorneys comea from this power to acquire land for which the services of an attorney are needed rather than from a statute directly authorizing the employment of an attorney. The General Appropriations Act, Howe Bill 133, Acts of the 55th Legislature, Regular Seseion, 1957, Chapter 385, pages 979-980, appropriated funds for the development of buildings to be wed by the Texas Employment Commission, Attorney General's Opinion ~~-526 made it clear that the Commis- sion conld purchase the land with the agreement of the land owners. This power to purchase the land did not carry with it the power to condemn; 80 it was necessary for the Governor to authorize and request the Attorney General to bring a oondePnnatlon suit under Article 5240, Vernon's Civil Statutes, which providee for the acquisition of land by purchase or by condemnation. Article 5240, Vernon's Civil Statutea, state8 in part: *rJhen any land shall be required by the State for any character of public we, the Governor is authorized to pur- chase said land, or the right to the use thereof, for such purpose; or, falling to agree with the owner on the price thereof, such land may be condemned for suoh public we in the name of this State. Upon the direction of the Governor, proceedings ahallbe instituted against the owner of the land by the Attorney General or under his direction by the district or county attorney. . . .' The euit la brou@t to condelrm land in the name of the State of Texas by the Texas Employment Commission and ie for the benefit of the Commission, which haa a direct intereat since appropriated funds for the Commission will be wed to pay for the land and the buildings to be erected on the land. Having the direct interest that it doee, and the acquirement of building sites being neceseary to further the Act for which the Ccamnlasion was estab- lished, the Ccminlssion in furtherance of the Act can employ an attorney to assist in the preparation of the proceedings under Article 5221b-9, Vemon'e Civil Statutea, which reads as follows: m. S. Perry Brown, page 3 (Ww-713) "(a) ~Duties and Powers of Oommiaaiont It shall be the duty of the Conm.is~lon to administer this Act; and It shall have power and authority to adopt, amend, or reaoind such rules and reguLationa, to employ such Wr'BonB, make such expenditures, require such reporta, make such lnveetlge.tions, and take such other action ae it deema neceseary or suitable to that end. . . .“ (&nphaeis ours.) The legality of the payment of the Attorney has been questiomd on two grounds. The objection to Article IV, Section 22 of the Texas Constitution by the Comptroller on the grounds that an attorney employed by the Coimnieaion, not being the Attorney Gsneral, could not represent the State in a legal proceeding to 6eoum an office building has no basic since thie objection wae answered by the Suptie Court of Texas In Camp Y. Gulf Production Ccm- F 61 S.W.2d 773. It was alao answered in Maude v. Terrell, 109 Tex. 61, 2 5 S.W. 639 where this pdint was raised and overruled. These oaaee hold that an Act of the Legislature would not be held unoonatitutional unlese it clearly deprived the Attorney General of his authority to represent the State. The second objection raised ae to the legality of the employment by the Colmaieaion of an attorney to aid the Attorney General is that Article 5221b-15, Vernon's Civil Statutee, prohibits anyone other than those attor- neye who are regularly employed by the Conunlsaion to aid the Attorney General. This ass-es that since this attorney waa employed solely to help In one matter that he was not "regularly" employed by the Commiseion. This cbjection is without merit since the attorney employed by the Com- mission to aid the Attorney General in the mentioned litigation was "reg&rly" employed by the Commi6alon. The word "regularly* is an adverb and meana In regular manner. The word "regular",hae been held to mean to be *agreeable to an eatabliahed law" (Century Dictionary quoting Wise v. State Veterinary Bs, I.38 Michigan 428, 432, 101NW 562; Webeters Dictionary quoting $fers v. Resbeok, ~upr~). The word has aleo been held to mean "duly authorized (Vebsters Dictionary quoting Merchants ' Iiational Bank v. Continental Elational B&, 98 California A 523, 277 Pac. 354). The word "regularly" has been held to be not eynoryrmoua with "continuously" (Ex. p. Cain, 39 Alabama 440). Since this attorney employed by the Commission was employed under the authority of Article 5221b-8 Vernon's Civil Statutes, his employment certainly we,8 *regularly" made, Thie opinion overrules Attorney General's Opinion O-708 insofar ae the two opinions conflict. Mr. S. Perry Brown, page 4 (WW-713) It,18 our opinion that the Texas Employment~Commfasion was authorized to employ an attorney to assiat the Attorney General in preparing for Eminent Domain proceedinga authorized by the Governor for the benefit of the Texas Employment Cozonissfon. The Texas Employment Commission may legally pay an attomeg for eervieea rendered in aasisting the Attorney Ceneral in an Eminent Domafn Proceeding. Yours very' truly, WILL WIISOH Attorney General of Texas JCS:im:me APPROVFJh OPIIVIOI COMMITrEE Gee. P. Blackbum, Chairman Gordon C. Caes Wallace Finfrock Riley Eugene Fletcher Jay D, Howell REVIEWEDFORTREGlTORKEY GEXERAL BY: W. V. Geppert