Does the Opinion of the Texas Attorney General even matter?
Opinions are the Attorney General’s interpretation of existing law. Governmental bodies may follow an AG opinion’s advice and courts give AG opinions “great weight,” but AG opinions don’t have the force of law and are not controlling on the courts. They can be superseded, overruled, or modified by statute or overruled or modified by a later attorney general.
The Texas Attorney General (AG) is the chief law officer of the state and performs two principal functions: (1) giving legal advice in the form of opinions to the governor, legislative committees, and other authorized requestors; and (2) representing the state in civil litigation.
The Texas Constitution authorizes the AG to give legal advice in writing to the Governor and other executive officers, when requested by them.” Tex. Const. art. IV, § 22. Under the Texas Government Code, the AG is required to issue written opinions on questions “affecting the public interest or concerning the official duties of the requesting person.” Tex. Gov’t Code Ann. § 402.042.
In this role, the AG performs a quasi-judicial function for authorized opinion requestors seeking legal answers outside the judicial process. Governmental bodies may follow an AG opinion’s advice and courts give AG opinions “great weight,”[1] but AG opinions don’t have the force of law and are not binding on courts.
AG opinions can be superseded, overruled, or modified by statute or overruled or modified by a later attorney general. Since Ken Paxton became Attorney General in 2015, he has issued almost 400 opinions and four of those opinions have been superseded or overruled by statute. During Greg Abbott’s tenure as Attorney General (2002-2014), he issued 1,096 opinions and 24 of those were superseded, overruled, or modified by statute. The AG’s website tracks opinions that have been overruled, modified, affirmed, or withdrawn.
How can I request an Attorney General opinion?
The AG won’t issue an opinion for just anyone—only to statutorily authorized requestors, typically the chair of a legislative committee or agency head. Section 402.042 of the Texas Government Code lists the officials authorized to request AG opinions:
- the governor;
- the head of a department of state government;
- the head or board of a penal institution;
- the head or board of an eleemosynary institution;
- the head of a state board;
- a regent or trustee of a state educational institution;
- a committee of a house of the Texas Legislature;
- a county auditor authorized by law;
- the chairman of the governing board of a river authority; and
- a district or county attorney.
If you want to request an AG opinion but aren’t an authorized requestor yourself, you should reach out to an authorized requestor to submit the question to the AG.
An opinion request can be submitted by email to opinion.committee@oag.texas.gov or by certified or registered mail to the address listed on the AG’s website.
Can I provide input to the AG on a pending opinion request?
Yes. Once an opinion is requested, anyone can submit briefing to the AG. The Opinion Committee also identifies parties who might be interested in the request and solicits briefs from them by sending a copy of the opinion request and the request-acknowledgment letter.
A list of pending opinion requests is available on the AG’s website. The AG requests that briefing be submitted by email to opinion.committee@oag.texas.gov. All briefing and materials submitted are subject to the Texas Public Information Act, which means they could be released to a member of the public upon request.
How long does it take for the Attorney General to issue an opinion?
Generally, the AG must issue the opinion within 180 days after the request is received. But the AG can extend that deadline by notifying the requestor that the opinion will be delayed and stating the reasons for delay.
Does the Attorney General himself actually write the opinion?
Generally, no. Each opinion request is assigned to an assistant attorney general who is a member of the AG’s Opinion Committee. That drafter provides an initial draft to the Opinion Committee and the Deputy Attorney General for Legal Counsel. The Opinion Committee reviews and discusses the draft, offering suggestions for revision and, at times, alternative conclusions. Once the Opinion Committee review is complete, the draft is distributed to the General Counsel Division and other divisions within the Office of the Attorney General that have expertise or an interest in the subject matter of the request. Then the draft is reviewed by the AG’s Executive Division and, finally, the Attorney General himself.
[1] Freedom From Religion Found., Inc. v. Mack, 4 F.4th 306, 310 (5th Cir. 2021) (although AG opinions do not control later-issued judicial decisions, they are entitled to great weight in Texas courts); Commissioners Court of Titus County v. Agan, 940 S.W.2d 77, 82 (Tex. 1997) (AG opinions are persuasive but not controlling on the courts).