With roots in the British common law and Spanish civil law, the office of Texas attorney general was first established by executive ordinance in 1836. The attorneys general of the Republic of Texas and the first four attorneys general under the first state constitution (1845) were appointed by the governor; all subsequent attorneys general were directly elected. In the Constitution of 1876 the attorney general is one of seven officers constituting the executive department of Texas state government.
As the chief legal officer of the state of Texas, the attorney general protects state interests through judicial proceedings and legal advice. His constitutional authority is broad but briefly stated, and the Texas legislature and the courts may augment his official powers. Whenever the interests of Texas state government are involved in civil law, the attorney general must represent and defend those interests. The state of Texas is represented by the attorney general in the courts of Texas and of the United States. The office influences all Texas government agencies through its advisory-opinion function, whereby the attorney general provides specified officials with guidance on how to perform their duties legally.
The attorney general works with governmental agencies in a variety of functions, such as assisting the secretary of state and the governor in extradition proceedings, approving the form of official papers, appearing before grand juries in an informational capacity, initiating inquiries into suspected illegal activities, examining the legality of bond issues for state and local governments, and preparing legal instruments for state agencies. The attorney general has regulatory or punitive civil powers over corporations and must protect charitable trusts through court action. Taxation and property are two functional areas significant to the work of the attorney general; the attorney general sues for recovery of taxes owed the state of Texas and protects the public interest with respect to abandoned property that escheats to the state. The attorney general acts against persons or corporations violating the environmental-protection laws of Texas or illegally extracting natural resources. The office also enforces the state's antitrust laws and prosecutes persons who mishandle state funds.
The attorney general broadly reflects a combination of law and politics in his regular duties, uniquely combining administration with regulation and law enforcement, acting as both enforcer and protector. Legal decisions are judged by political standards, and political skills may be technically useful in the position. The attorney general must be a mixture of a good politician, a good administrator, and a skillful lawyer.
The attorney general's actions are by nature collegial. Although daily work is in the hands of assistants, operations are shaped by the priorities and the personality of the attorney general. His formal authority is plenary, whether in litigation or giving legal advice. The incumbent attorney general controls the form and substance of state civil cases and the final form of legal opinions.
During the attorney generalship of Price Daniel, Sr. (1947–53), for example, one of the most significant projects of the attorney general's office was the Tidelands case (see TIDELANDS CONTROVERSY). This litigation grew out of the federal government's decision to wrest ownership of submerged offshore oil lands from the coastal states, including Texas, and thus to deprive them of the oil revenues from these lands. The state lost its case before the federal courts but ultimately won in Congress. Attorney General Daniels emerged from this case as a leading spokesman for the rights of states in the face of federal efforts to restrict state prerogatives.
Attorney General John Ben Shepperd's (1953–57) most distinctive enterprise was an investigative campaign and resulting civil suits against the political machine of George B. Parr in Duval County. This case is an example of how certain projects initiated by the attorney general's office can have political content as well as legal substance. Attorney General Will Wilson (1957–63) probably utilized the civil authority of the office against illegal activities more than any other person in the office. An example is his well-publicized investigations against organized-gambling interests in Galveston.
The attorney general functions from a point of central significance in Texas government-a perspective not precisely duplicated by any other state office. This strategic influence results from formal authority, strict constitutional limits on the powers of other state officials, fluctuating constitutional limits on the powers of other state officials, the fluctuating character of a part-time legislature, the rarity of judicial reversal of the attorney general's actions, and his control over state civil litigation.
The expanded role of the attorney general has accompanied the evolving roles of state and local governments. The general growth of governmental activity was precipitated by political pressures on governments to police, to regulate, and to change. The office has evolved through political, economic, and social turmoil and the imprint of modern technology, as well as the political efforts of racial, ethnic, regional, and special-interest groups to bring about changes through the courts. The modern office is the result of an intricate combination of rules, traditions, and circumstances. Many of the leading political figures in Texas history have served as attorney general, several of them using the office as a jumping-off place to other offices in state and national government. Attorneys general James S. Hogg (1886–90), Charles A. Culberson (1890–94), Daniel J. Moody, Jr. (1925–27), James Allred (1931–35), Price Daniel, Sr. (1947–53), and Mark White (1979–83) were elected governor; Culberson and Daniel were also elected to the United States Senate.
The attorney general acts as an instrument for achieving administrative flexibility in the state's legal system, thus enabling government to adjust to changing policy demands through flexible interpretations of statutory and constitutional law. Wherever the political system and the legal systems converge or conflict, the attorney general is essential to state government. The office effects innovative but incremental change that fosters administrative and political viability and stability. The importance of the office to Texas government results from both the historical character of the office in the United States and the distincitve adaptation in Texas of Anglo-American legal and political traditions.