Texas Attorney General Opinion Requests: How to Advocate Effectively

In a game without rules, (political) players can drive the process.

In some ways, the Texas Attorney General is a little like the U.S. Supreme Court. Actually, there are two U.S. Supreme Courts. One court is frequently in the news, deciding controversial social issues that resolve, or sometimes create, decades-long political fights. The justices on this court line-up along ideological lines and issue arch majority opinions and venomous dissents. The other U.S. Supreme Court is never in the news, ruling on abstruse procedural issues or esoteric questions of substantive law. On this court, Justices Thomas and Sotomayor might join together in determined opposition to Justices Ginsburg and Alito.  Perhaps the chief task of a party or advocate appearing before the U.S. Supreme Court is to understand which Court will hear the case and prepare accordingly.

The Texas Attorney General opinion process presents exactly the same challenge. Sometimes an opinion request asks whether a dog catcher can catch cats. That opinion will likely follow a longstanding procedure on a reliable timeline. But other opinion requests might determine an extremely important issue, like how a state agency will treat a regulation that affects billions of dollars’ worth of business. The drafting of that opinion might follow no procedure at all. The ability to anticipate whether a dispassionate administrative review obeying a set procedure will answer an opinion request, or whether the Attorney General will direct an ad-hoc effort under no set procedure or schedule of any kind, can profoundly affect the content of the opinion.

In practice, any state official or legislator can request an Attorney General Opinion, as can a county auditor or district and county attorney. If a legislator who requests an opinion has no apparent interest in the subject matter—no geographic connection or relevant committee assignment—the request will look like a favor from a donor or ally and might be treated as such. The Attorney General’s Office will know that the legislator is not asking the question; a private party is. The request might instantly be treated as a political problem rather than a legal question. If you know what is politically important to the Attorney General, along with which political alliances he will need and for what purpose, you can be reasonably certain of the outcome of the opinion request.

There are many other scenarios that might direct the Attorney General’s approach to the request in a similar way. What you need to know is this: the slightest suggestion of a particular legal or political interest in a request can immediately, and irrevocably, transform the process from a staid legal process to the political wild west. The staid, legal, Attorney General Opinion drafting process is simple, but it can be tricky for interested outside parties to navigate.

In this process, a politician or bureaucrat will submit a request, and it is assigned to the Opinion Committee, which is a group of lawyers who are extremely intelligent and knowledgeable legal generalists. The Committee encourages interested parties to submit briefs on opinion requests. The sooner the briefs are submitted, the better, because the drafting and review process proceeds quickly. After each stage of the process, the opinion’s answer becomes more and more firmly set, and less and less likely to be changed. One lawyer on the Committee will spend the first few weeks researching and writing the initial draft of the opinion. Ideally, outside comments should be submitted before the initial draft is finished. The other Committee members will then review the first draft and suggest changes to it. The second draft is circulated to other divisions within the Attorney General’s office for review and editing, enabling the Committee to produce a third draft, which the Attorney General’s closest advisors will then review and revise. The advisors’ draft is the one the Attorney General will read, and either sign or send back for additional revision.

The Attorney General has six months to issue an opinion, and usually takes about that long to publish and distribute one. However, in the vast majority of cases, the answer to the opinion request is actually developed within two or three weeks of the submission of the request; the answer is simply refined over the months between the time it is devised, and the time it is published. Therefore, if you are interested in the outcome of an opinion request, you must either submit your comments very early in the process, or tailor your comments for the people in the Attorney General’s office who participate in a later stage of review. In order to do that, you have to know when a particular stage of review is being conducted, and who is conducting the review. Very, very few people are able to figure that out. We are.

If an opinion request is thoroughly political, and it is political in a way that matters to the Attorney General, the request might not follow the six-month procedure, and it might not be subjected to serial rounds of ever-higher review. Instead, the opinion might be researched and outlined—perhaps even drafted, in the first instance—by a senior attorney outside the Opinion Committee. The finished product will be political, in the sense that it will reflect the Attorney General’s political beliefs and the beliefs of his allies. However, it will almost certainly not be political in a different sense: the opinion will not say the opposite of what the Attorney General believes, merely for short term political gain. In other words, the political Attorney General opinion process involves questions and procedures that are saturated with politics, but that usually means only that the opinion will say exactly what the Attorney General wants it to say rather than, in the instance of the non-political process, what his staff wants it to say. Therefore, it is not enough to understand that the Attorney General process will be a political one; it is necessary to understand exactly what the Attorney General and his political allies think, and why. You will need a comprehensive understanding of the law, politics, and personalities occasioned by an opinion request that involves important questions of policy.

If you are interested in the outcome of an opinion request like that, your strategy for commenting must be radically different from what it would be for a politically-unimportant request. Like the U.S. Supreme Court, the Texas Attorney General’s Office handles some issues that are purely legal and can be influenced by purely legal arguments; and it handles other issues that are thoroughly political, and have more to do with ideological alignment than statutory construction and stare decisis. Attorney General Opinions can be colossally important documents, so it is crucial to know which sort of issue a particular opinion request involves, and how to address it. That requires experience and judgment that are in vanishingly short supply these days.