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Untitled Texas Attorney General Opinion ( 1999 )


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  •                                           April 14,1999
    The Honorable Raymie Kana                        Opinion No. X-0034
    Colorado County Auditor
    Courthouse, Third Floor                          Re: Authority of county attorney to provide legal
    Columbus, Texas 78934                            services to commissioners court, and related
    questions 014-1137)
    Dear Ms. Kana:
    You have asked this office whether a county attorney who is covered by the terms of the
    Professional Prosecutors Act, chapter 46 of the Government Code, may perform for the county
    ancillary legal services which do not form part of his duties “without charge to the county,” and
    whether such a county attorney “can legally enter into an agreement with a municipality to provide
    legal advice, opinion, and consultation services for a fee regarding the arrest, docketing, and
    disposition of city and State law offenders prosecuted through the municipal court.”
    We begin with a brief review of the statutes applicable to the Colorado County Attorney.
    Section 45.145 of the Government Code provides that the Colorado County Attorney “shall perform
    the duties imposed on and have the powers conferred on district attorneys by general law.”
    TEX. GOV’T CODE ANN. 4 45.145(a) (Vernon Supp. 1999). As this office stated in Letter Opinion
    No. 98-26,
    Generally, the Colorado County Attorney, like a district attorney, is required
    to “represent the State in all criminal cases in the district courts of [the
    county] and in appeals therefrom. . .” The Colorado County Attorney also
    is required to represent the state in examining trials and habeas corpus
    proceedings. In addition, the Colorado County Attorney has various duties,
    found in scattered statutes, such as providing legal advice to appropriate
    officials; enforcing certain licensing acts; and challenging public nuisances.
    Tex. Att’y Gen. LO-98-26, at 2 (footnotes omitted). Finally, the Colorado County Attorney is one
    of the county attorneys made subject to the Professional Prosecutors Act by Government Code
    section 46.002(3).
    As to your first question, we conclude that while a county cannot contract for ancillary
    services with a county attorney covered by the Professional Prosecutors Act in his private capacity
    precisely because such a county attorney may not engage in private practice, we do not believe that
    The Honorable Raymie Kana - Page 2                (X-0034)
    the law would prevent him from providing such services gratis on a voluntary basis. The decision
    whether to offer to provide such services on that basis would, of course, belong to the county
    attorney.
    As to your second question, we know of no basis upon which the attorney would have the
    authority to enter into such a contract as you describe. If it be argued that he is entering into such
    contracts in his private capacity, then he is barred from doing so by chapter 46. If, on the contrary,
    the contracts are entered into in his official capacity, he has no authority to enter into them. The
    general authority of a county to enter into contracts is vested in the commissioners court. The county
    attorney is without authority to enter into such agreements.
    As we understand the background for your questions, the Colorado County Attorney has
    taken the view that he is debarred from performing legal services to the county beyond those which
    are made his duty by statute. Apparently he reads a letter opinion issued by this office, Letter
    Opinion No. 98-26, as mandating this result. In that opinion, we concluded that the county attorney
    could not contract with the commissioners court to provide courthouse security.
    We do not agree with the rather expansive reading which the County Attorney gives Letter
    Opinion No. 98-26. In our view, the provision of security services, which the opinion declared
    beyond the authority of the county attorney and outside the province of his investigator, is
    distinguishable from the ancillary legal services which the County Attorney asserts he may not now
    perform.
    However, we do note that a particular problem arises with respect to the provision of
    ancillary legal services by a county attorney when, as in this case, the attorney is covered by the
    Professional Prosecutors Act. The standard treatise on county law, as well as certain attorney
    general opinions of this office, have generally asserted that, while the provision of some legal
    services to the county was beyond the duty of the county attorney, the commissioners court could
    retain the county attorney for such services as a private practitioner:
    [A]s to the county as a legal entity, it is not the duty or responsibility of a
    local prosecutor to “represent the county in its general legal business or the
    conduct of ordinary civil actions.” The exception to this rule is the
    responsibility . to render upon request legal advice and opinions to county
    officials. Numerous authorities have stated that a county commissioners
    court may employ in a private capacity the county or district attorney to
    represent the county in matters for which he is not required by law to provide
    representation.
    36 DAVID B. BROOKS,COUNTY AND SPECIALDISTRICTLAW         9 21.14 (citing Hill Farm, Inc. v. Hill
    County, 425 S.W.2d 414,419 (Tex. Civ. App.-Waco 1968), affd, 
    436 S.W.2d 320
    (Tex. 1969));
    seealso Guynes v. Galveston County, 861 S.W.2d 861,864 (Tex. 1993) (BecauseGalvestonCounty
    Criminal District Attorney did not have exclusive duty of civil representation for county,
    The Honorable Raymie Kana - Page 3                (JC-0034)
    commissioners court could establish legal department for “wide-range of duties related to the
    county’scivilbusiness.“);Tex. Att’y Gen. Gp.Nos. JM-198 (1984),0-4301(1942), O-3656(1941),
    O-864 (1939), O-198 (1939).
    As Attorney General Opinion JM-198 noted in passing, however, this traditional argument
    does not fit well with the provisions of the Professional Prosecutors Act. In that opinion, after
    affirming that the Victoria County Commissioners Court had the authority to contract with the
    Criminal District Attorney in his private capacity to represent the county in condemnation
    proceedings which were outside the scope of his official duties, this office noted “that effective
    September 1, 1983, the criminal district attorney in Victoria County became a “district attorney”
    within the meaning of the Professional Prosecutors Act, which provides that a district attorney
    governed by the act may not engage in the private practice oflaw.” Tex. Att’y Gen. Op. No. JM-198
    at 3 (1984).
    The situation alluded to in Attorney General Opinion JM- 198 is squarely presented here. The
    Colorado County Attorney is covered by the Professional Prosecutors Act. TEX. GOV'T CODEANN.
    5 46.002(3) (Vernon Supp. 1999). As such he “may not engage in the private practice of law.        .”
    
    Id. $ 46.005(a).
    Accordingly, since he cannot engage in private practice, he cannot receive
    compensation from the county for providing legal services which do not form part of his statutory
    duties.
    We do not, however, agree wholly with the County Attorney’s view that he is “now
    mandated to discontinue any extra work I have been doing, as I cannot contract with the County.”
    Letter from John Julian Moore, Colorado County Attorney, to Colorado County Commissioners
    Court 3 (Apr. 6, 1998) (on file with Opinion Committee). As we have already pointed out, Letter
    Opinion No. 98-26 contains no such mandate. Nor, in our view, does the Professional Prosecutors
    Act necessarily forbid the County Attorney to provide such services. It does bar the county from
    contracting with him in his private capacity to perform them for remuneration. But it does not
    appear to us that the Act prevents him from voluntarily and gratuitously providing such services.
    In the words ofthe standard treatise, “The legislature passed the Professional Prosecutors Act
    in 1974 for the purpose of improving prosecution in the state by guaranteeing a higher state salary
    to local prosecutors and imposing a duty on the commissioners court to provide necessary funds for
    the operation of the various local prosecuting offices. In return, the prosecutors subject to the Act
    are prohibited from engaging in any form of private practice, or accepting referral fees.” BROOKS,
    sup-a, 9 21.44 (footnotes omitted). The principal concern of the prohibition on private practice is
    that the prosecutor not be spending his time attending to the business of private clients rather than
    public business. Accordingly, we interpret “the private practice of law,” for the purposes of
    Government Code section 46.005(a) to mean the sale of legal services. In our view, the free and
    voluntary performance of legal services for the county not required of the county attorney by statute
    would in no way frustrate the purpose of the Act. While a hypertechnical reading of section
    46.005(a) in conjunction with the older attorney general opinions of this office on contracts between
    the commissioners court and the attorney in his private capacity might lead one to the rather severe
    The Honorable Raymie Kana - Page 4                          (X-0034)
    conclusion that the attorney could under no circumstances provide services beyond his statutory
    duties, absent binding court precedent or the clear direction of the legislature we reject such a
    conclusion.
    Of course the County Attorney is not obliged to perform such services, and the
    commissioners court would have to depend upon his good graces in this regard. But the provisions
    of section 46.005(a) do not prevent the County Attorney from offering and providing such services
    on a voluntary basis.
    While the Act does not prevent the County Attorney from offering ancillary legal services
    to the county gratis, it does prevent him from entering in his private capacity into the sort of
    consultation agreements with cities to which your second question refers. As we have pointed out,
    a county attorney covered by the Professional Prosecutors Act in effect gives up his private capacity
    and for that reason cannot contract with cities to represent them as a private lawyer.’
    One of the consultation agreements with which you have furnished us a copy appears to be
    executed by the County Attorney as a private lawyer. However, under the terms of section
    46.005(a), the County Attorney has no capacity to practice law privately.
    The other contract with which we have been furnished appears to have been executed by
    the County Attorney in his official capacity. However, the only general ability to contract for
    the county resides in the commissioners court. This principle has repeatedly been asserted by this
    office, generally in questions dealing with the ability of the sheriff to contract for jail operations.
    See, e.g., Tex. Att’y Gen. Op. No. DM-111 (1992); Tex. Att’y Gen. LO-98-072. As Letter Opinion
    No. 98-072 put it, “Contracts binding on the county               must in general be made by the
    commissioners court unless a sheriff or other county official has specific authority to make them.”
    Tex. Att’y Gen. LO-98-072, at 2.
    We find no specific authority for the County Attorney to enter into consultation agreements
    with municipalities to provide legal advice to the municipal court either in the Colorado County
    Attorney’s statute, section 45.145 of the Government Code, the general provisions concerning
    county attorneys in chapter 45 of the Government Code, the general provisions concerning district
    attorneys in chapter 43 of the code, those concerning prosecuting attorneys in chapter 41, or in the
    provisions of the Professional Prosecutors Act. Absent such specific contractual authority, the
    County Attorney may not enter in his official capacity into such consultation agreements as are at
    issue here.*
    ‘We emphasize that this conclusion is limited to attorneys covered by the Professional Prosecutors Act, and
    therefore by section 46.005(a).  This discussion does not implicate constitutional questions concerning dual offke-
    holding, or the common-law doctrine of incompatibility.
    ‘We do not address the authority of a county to enter into a contract for the provision   of legal services with a
    municipality.
    The Honorable Raymie Kana - Page 5                 (X-0034)
    SUMMARY
    While the Professional Prosecutors Act, chapter 46 of the Government
    Code, prevents a county attorney covered by it from entering into a contract
    with the county to provide it, for remuneration, with ancillary legal services
    not included among his statutory duties, it does not prevent the county
    attorney from voluntarily and gratuitously providing such services should he
    so choose.
    Because prosecutors covered by the Act give up their capacity to practice
    law privately, the Act does prevent a county attorney covered by it from
    entering in his private capacity into a consultation agreement with a
    municipality to provide the municipal court with legal advice. Nor, absent
    specific statutory authority to do so, may the county attorney enter into such
    a contract in his official capacity.
    4c
    Yo       very truly
    cm-...     CL
    ‘-“‘--I--
    JOiiN    CORNYN
    Attorney General of Texas
    ANDY TAYLOR
    First Assistant Attorney General
    CLARK KENT ERVIN
    Deputy Attorney General - General Counsel
    ELIZABETH ROBINSON
    Chair, Opinion Committee
    Prepared by James E. Tourtelott
    Assistant Attorney General
    

Document Info

Docket Number: JC-34

Judges: John Cornyn

Filed Date: 7/2/1999

Precedential Status: Precedential

Modified Date: 2/18/2017