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eXpendit

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Expenditures Related to Legal Proceedings
Retention or Employment of Attorneys

The attorney general has the exclusive right to represent the state before the Texas Supreme Court and the state court of appeals. District and county attorneys have the exclusive right to represent the state in all cases in the district and inferior courts in their respective counties. This right, however, is subject to any specific statutory or constitutional authorization or requirement for the attorney general to represent the state in those courts.

Sources [+]

Texas Constitution, Article IV, Section 22, and Article V, Section 21.
Texas Government Code, Section 402.021.

A contract for legal services between a state agency and an attorney who is not a full-time employee of the agency is valid only if the attorney general has approved the contract. The attorney general may require the agency to obtain the services through a competitive procurement process, under conditions prescribed by the attorney general.

Definitions:

State agency
A department, commission, board, authority, office, or other agency in the executive branch of state government created by the state constitution or a state statute. (Texas Government Code, Section 2254.151.)

Source [+]

Texas Government Code, Sections 402.0212, 2254.151-2254.154 and 301.061.
Texas Attorney General Opinion MW-191 (1980).

Retention of outside legal counsel

The Office of the Attorney General (OAG) serves as the state’s legal counsel and therefore serves as legal counsel to all agencies and institutions of higher education. Agencies and institutions may not retain or select outside counsel without first receiving authorization and approval from the OAG. See Outside Counsel Contracts on the Office of the OAG’s website for more information.

If an agency or institution of higher education requires legal services from outside counsel, it must first submit a Request to Retain Outside Counsel and a proposed Outside Counsel Contract electronically to the OAG through DocuSign.

A payment under contract for legal services owed by a state agency is due on the 45th day after the date the agency receives the invoice for the legal services.

Source [+]

Texas Government Code, Sections 402.0212(a) and 2251.021(b-1).

Outside legal counsel that represents a plaintiff in a proceeding against the state

Appropriated funds may not be used to retain outside legal counsel to represent the state or any of its state governmental entities in a contested matter if the outside legal counsel is also representing a plaintiff in a proceeding seeking monetary damages from the state or any of its state governmental entities.

Source [+]

General Appropriations Act, Article IX, Section 16.01(j).
Texas Attorney General Opinion MW-191 (1980).

Contingent fee contracts for legal services

A contingent fee contract for legal services entered into by a state governmental entity may be entered into if certain requirements are met. One of those requirements is for review and approval of the contract by the Texas Comptroller of Public Accounts. The form required for the review and approval along with the detailed requirements can be found on the Comptroller’s website.

Exceptions

The requirements for a contingent fee contract do not apply to a center for technology development and transfer. The requirements also do not apply to a state agency that is given authority by the attorney general to contract for the collection of delinquent taxes or other debts owed to the state.

Definitions:

Contingent fee contract
A contract for legal services under which the amount or the payment of the fee for services is dependent in whole or in part on the outcome of the matter for which the services were obtained. (Texas Government Code, Section 2254.101.)
State governmental entity
  • The state or a board, commission, department, office or other agency in the executive branch of state government created under the constitution or a statute of the state, including an institution of higher education as defined by Texas Education Code, Annotated Section 61.003.
  • Includes the state when a state officer is bringing a parens patriae proceeding in the name of the state.
  • Does not include a state agency or state officer acting as a receiver, special deputy receiver, liquidator or liquidating agent in connection with the administration of the assets of an insolvent entity under Texas Insurance Code, Article 21.28, or Finance Code, Chapter 36, 66, 96 or 126 (Texas Government Code, Section 2254.101).

Sources [+]

Texas Government Code, Sections 403.0305, 404.097, 2107.003(b), (c) or (c-1), 2254.101, 2254.102(a)-(c), 2254.103, 2254.108 and 2254.109(c).
Texas Attorney General Letter Opinion 96-124.

Legal services involving centers for technology development and transfer

An institution of higher education may establish a center for technology development and transfer (Center) to manage, transfer, market or otherwise commercialize technology owned by the institution or in which the institution owns an interest. The institution may contract with a Center under the control of a governing board other than its own.

An institution of higher education may enter into a contract for legal services with a competent lawyer or law firm to:

  • Prepare, file, pursue and maintain patent applications in the United States or foreign jurisdictions.
  • Secure copyright protection for computer software.
  • Prepare, file and pursue trademark and service mark applications.
  • Pursue litigation to prevent or stop infringement of any intellectual property rights of the institution.
  • Handle any other legal matter related to the operation and activities of the Center.

Fees or other compensation may be paid on a contingency basis, at an hourly rate or on another basis the governing board of the institution considers appropriate.

Definitions:

Center
An office, department or other organizational unit established by an institution of higher education to manage, transfer, market or otherwise commercialize technology and to aid in the discovery, development, protection or commercialization of technology. (Texas Education Code, Chapter 153.)
Governing board
The body charged with policy direction of any public technical institute, public junior college, public senior college or university, medical or dental unit, or other agency of higher education, including but not limited to boards of directors, boards of regents, boards of trustees, and independent school district boards insofar as they are charged with policy direction of a public junior college. (Texas Education Code, Section 61.003(9).)
Institution of higher education
Any public technical institute, public junior college, public senior college or university, medical or dental unit, public state college or other agency of higher education. (Texas Education Code, Section 61.003(8).)
Technology
The application of scientific knowledge for practical purposes; includes inventions, discoveries, trade secrets, copyrighted materials, tools, machines, materials, processes to do work, processes to produce goods, processes to perform services, processes to carry out other useful activities, trademarks and computer software. (Texas Education Code, Section 153.001(6).)

Sources [+]

Texas Education Code, Sections 153.001(1)-(3), (6), 153.003(a), (c) and Section 153.006.

Documentation Requirements [+]

  • COBJ 7258 must be used to describe all payments to outside legal counsel.

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