Emails,  Lauren Bean, deputy communications director, Texas Attorney General’s office, Dec. 16, 2013

From: Selby, Gardner (CMG-Austin) [mailto:wgselby@statesman.com]

Sent: Monday, December 16, 2013 4:23 PM

To: Bean, Lauren

Subject: RE: Your politifact question

 

Is Davis correct that Abbott has defended the 2011 cuts in the school funding lawsuits? My impression to this moment is yes.

4:25 pm

Gardner – yes, our office defended the law in court.

 

Lauren Bean

Deputy Communications Director

Texas Attorney General’s Office

5:06 pm

The Attorney General’s job is to be the State’s chief legal officer and thus to defend the State of Texas when it is sued in court. That means representing state agencies in litigation and defending state laws when they are subjected to legal challenge. Consequently, the AG is not empowered to second-guess the wisdom or policy implications of a duly enacted Texas law. Under the Texas Constitution, that policy-making role was clearly left to the Texas Legislature. Texas founders did not envision a state where the AG could simply collude with a handful of litigants who might oppose a given state law and then unilaterally undo a statute that was duly enacted by the Legislature and signed by the Governor.

 

Here are several excerpts from the Texas Government Code, Texas Supreme Court decisions, and some OAG opinions that outline the responsibilities of the Texas Attorney General’s Office when it comes to lawsuits against the state.

 

·         Tex Gov't Code Sec. 402.010 LEGAL CHALLENGES TO CONSTITUTIONALITY OF STATE STATUTES

--Requires that courts "serve notice" to the AG if a lawsuit challenges the constitutionality of a statute

--Prohibits a court from striking down a state statute unless 45 days have passed since the AG received notice

 

·         Tex Gov't Code Sec. 402.021

--The AG shall represent the State in all actions wherein the State has interest before the Supreme Court and courts of appeals.

 

Here is a link to Chapter 402 of the Government Code: http://www.statutes.legis.state.tx.us/Docs/GV/pdf/GV.402.pdf

 

·         "The Texas legislature has also recognized that the Attorney General represents the State but does not make its policies.” League of United Latin Am.Citizens, Council No. 4434 v. Clements, 999 F.2d 831, 843 (5th Cir.1993)

 

·         ‘‘Under Texas law, the Attorney General enjoys an exclusive right to represent state agencies..." Sierra Club v. City of San Antonio, 115 F.3d 311, 314 (5th Cir. 1997)

 

·         Under Texas law, the attorney general enjoyed exclusive right to represent state agencies, and if services of other lawyers were to be had it must have been with his decision and "in subordination" to his authority. U. S. v. State of Tex., C.A.5 (Tex.)1982

 

·         Staff attorneys for Department of Human Resources may constitutionally represent the department in court subject to supervisory control of the attorney general. Op.Atty.Gen.1979, No. MW-24.

 

·         In matters of litigation the Attorney General is officer authorized by law to protect interests of the state, and even in matters of bringing suit the Attorney General must exercise judgment and discretion, which will not be controlled by other authorities. Bullock v. Texas Skating Ass'n (Civ.App. 1979) 583 S.W.2d 888, ref. n.r.e..

 

Lauren Bean

Deputy Communications Director

Texas Attorney General’s Office