Untitled Texas Attorney General Opinion ( 1999 )

OFFICE OF THE ATTORNEY GENERAL STATE OF TEXAS
JOHN CORNYN
April 14,1999
The Honorable Eddie Lucia, Jr. Opinion No. JC-0033
Chair, Special Committee on Border Affairs
Texas State Senate Re: Whether a county judge may practice law in
P.O. Box 12068 the courts of his county (RQ-1083)
Austin, Texas 7871 l-2068
Dear Senator Lucia:
You have asked whether it is legal and ethical for the County Judge of Cameron County to
practice law in Cameron County. A constituent of yours has pointed out that the county judge is
chief budget officer of the county and is practicing law in courts directly affected by his actions as
chief budget officer. The county judge is the presiding officer of the commissioners court, TEX.
CONST. art. V, 5 18(b), and also presides over the county court, id. art. V, 5 15. The county judge
may be the budget officer in counties under a certain population. See TEX.Lot. GOV'T CODE ANN.
$5 111.002, .061-.062 (Vernon 1988 & Supp. 1999).
Article XVI, section 40 of the Texas Constitution, bars one person from holding more than
one civil office of emolument at the same time. The common-law doctrine of incompatibility, the
other major aspect of dual office-holding, prohibits one person from holding two inconsistent public
offices or an inconsistent public office and public employment when one might impose its policies
on the other or subject it to control in some other way. Thomas v. Abernathy County Line Zndep.
Sch. Disk, 290 S.W. 152 (Tex. Comm’n App. 1927); Tex. Att’y Gen. Op. No. JM-203 (1984). A
county judge occupies a civil office of emolument within article XVI, section 40 of the Texas
Constitution. Tex. Att’y Gen. Op. No. JM-594 (1986). As a public officer, the county judge is also
subject to the common-law doctrine ofincompatibility. Tex. Att’y Gen. LO-94-46, at 3-4. However,
an attorney in private practice does not hold a public office or a public employment. Accordingly,
neither article XVI, section 40 of the constitution nor the common-law doctrine of incompatibility
bars a county judge from also working as an attorney in private practice. See Tex. Att’y Gen. Op.
No. DM-194 (1992) (common-law rule against holding incompatible offices does not apply where
one office is not public office); Tex. Att’y Gen. Op. No. V-303 (1947) (independent contractor for
governmental body is not a public employee).
Section 82.064(b) of the Government Code does preclude a county judge from appearing as
an attorney in certain courts within his county. That section provides:
A county judge or county clerk who is licensed to practice law may not
appear and practice as an attorney at law in any county or justice court except
The Honorable Eddie Lucia, Jr. - Page 2 (JC-0033)
in cases over which the court in which the judge or clerk serves has neither
original nor appellate jurisdiction.
Under this provision, a county judge may not practice law in his own court or in lower courts over
which his or her court has appellate jurisdiction. A county judge may, however, participate in the
prosecution of a criminal defendant in district court. Clarich v. State, 129 S.W.2d 291 (Tex. Crim.
App. 1939); Shoope v. State, 38 S.W.2d 793 (Tex. Crim. App. 1930). Accordingly, a county judge
is permitted in certain circumstances to practice law in the courts within the county despite his
position as chief budget officer. The county court of Cameron County has the jurisdiction of a
probate court but has no other civil or criminal jurisdiction. TEX. GOV’TCODEANN. 5 26.131
(Vernon 1988).’ Section 82.064 of the Government Code thus bars the county judge of Cameron
County from appearing in probate matters in any court in Cameron County.
The substance of section 82.064 has been incorporated into the Code of Judicial Conduct.
Canon 4G of this code provides that “[a] judge shall not practice law except as permitted by statute
or this Code. A county judge who performs judicial functions and who is an attorney is exempt from
Canon 4G, “except [when] practicing law in the court on which he or she serves or in any court
subject to the appellate jurisdiction of the county court, or acting as a lawyer in a proceeding in
which he or she has served as a judge or in any proceeding related thereto.” TEX. CODE JUD.
CONDUCT,Canon 6B.(3), reprinted in TEX. GOV’TCODEANN., tit. 2, subtit. G app. B (Vernon
1998); see 18 BAYLORL. F&V. 278,280 (1966) Comm. on Interpretation of the Canons of Ethics,
State Bar of Tex., Op. 183 (1958). These provisions permit a county judge to practice law in a court
within the same county in certain circumstances, even though he is chief budget officer.
Ethical considerations, however, may bar a county judge from undertaking certain kinds of
cases in his capacity as an attorney in private practice. Like any other lawyer, he is subject to the
Texas Disciplinary Rules ofProfessional Conduct in his practice as an attorney. TEX.DISCIPLINARY
R. PROF’LCONDUCT,reprinted in TEX. GOV’TCODEANN., tit. 2, subtit. G app. A (Vernon 1998)
(TEx. STATEBAR R. art. X, $ 9). Rule 1.06, the general conflict-of-interest rule, is particularly
relevant to the county judge’s practice of law. It provides in part:
(b) . . [A] lawyer shall not represent a person if the representation of that
person:
‘Appealsfromthe justice court and other inferior courts in Cameron County must be made directly lo a county
court at law. TEX.GOV’TCODEANN. g 25.0332(d) (Vernon 1988); see Act ofMay 30,1983,68th Leg., R.S., ch. 1034,
5 1,1983Tex.Gen.Laws5485,5486(deftig jurisdictionof CountyCourtsat LawNos. 1 and 2 of CameronCounty
and restrictingcounty courtto jurisdictionof a probatecourt).
The Honorable Eddie Lucia, Jr. - Page 3 m-0033)
(2) reasonably appears to be or become adversely limited by the
lawyer’s or law firm’s responsibilities to another client or to a third person or
by the lawyer’s or law firm’s own interests.
TEX. DISCIPLINARYR. PROF’L CONDUCT 1.06. We believe that rule 1.06(b) would bar the county
judge from representing an individual in a dispute with the county.2
The Professional Ethics Committee of the Supreme Court (the “Committee”) has issued
several opinions dealing with the practice of law by county judges. Tex. Comm. on Prof 1 Ethics,
~SBAYLORL.REV. 195,199-303 (1966), Op. Nos. 13 (1948) (countyjudgemaypracticelawwithin
the statutory limitations); 45 (1952) (county judge may represent clients and friends in justice and
county courts in counties outside his own county); 15 1(1957) (where county judge appointed widow
as guardian of minor children, improper, though not illegal, for county judge to represent defendant
in wrongful death suit brought by widow); 173 (1958) (county judge may not disqualify himself and
then accept employment as attorney in probate matter in his court); 183 (1958) (improper for county
judges to accept employment in case in which they are acting adversely to state or county); 220
(1959) (countyjudgemaynottransferprobatematterpending beforecountycourtto countycourt-at-
law and continue to act as attorney in probate matter). The Committee, consisting of nine members
of the state bar, is appointed by the Texas Supreme Court. TEX. GOV’T CODE ANN. 5 81.091
(Vernon 1998). It is charged with issuing opinions “on the propriety of professional conduct other
than on a question pending before a court of this state,” when requested to do so by a member of the
state bar or on its own initiative. Id. 5 81.092 (“Committee opinions are not binding on the supreme
court”).
The Committee’s Opinion No. 183, 18 BAYLOR L. REV. supra, at 278, is of particular
interest, because it deals with cases involving representation adverse to the county. This opinion
considered whether it would be unethical for a county attorney, district attorney, or county judge to
accept employment as an attorney in various kinds of cases, including a criminal case in which the
officer would be acting adversely to the state or the county. It referred to the predecessor of article
2.08 of the Code of Criminal Procedure, providing that “[dlistrict and county attorneys shall not be
of counsel adversely to the State in any case, in any court.” TEX. CODE GRIM. PROC. ANN. art. 2.08
(Vernon 1977) (formerly TEX. CODE GRIM. PROC. ANN. art. 32 (Vernon 1925)). While
acknowledging that this statute did not apply to county judges, the opinion stated that “it would
nevertheless, in the opinionofthe Committee, be unethical for County Judges to accept employment
in any case, criminal or civil, where they are acting adversely to the State or County.” 18 BAYLOR
L. REV. supra, at 278,280.
*Subsection (c) of rule 1.06 sets out circumstances under which a lawyer may engage in the ccnnmon
representation of clients prohibited by subsection (b). Since subsection (c) refers to circumstances under which
“common representation” is allowed, this exception may not apply where the attorney’s duty is owned to a third party
that is not a client.
The Honorable Eddie Lucia, Jr. - Page 4 (X-0033)
Opinion No. 183 did not address the possibility that a county attorney might represent an
indigent defendant pursuant to court appointment, nor did it mention the statute that addresses this
issue. Article 26.06 of the Code of Criminal Procedure, adopted in 1951 and initially codified as
article 494b, TEX. CODE GRIM. PROC. ANN. (1925), provides as follows:
No court may appoint an elected county, district or state official to
represent a person accused of crime, unless the official has notified the court
of his availability for appointment. If an official has notified the court of his
availability and is appointed as counsel, he may decline the appointment if
he determines that it is in the best interest of his office to do so?
The title of the 1951 bill adopting the predecessor of article 26.06 described it as an act “to exempt
elected county officials who are members of the legal profession from being appointed to defend
criminals in all courts ofthis State,” while the emergency clause stated that the business ofnumerous
counties was seriously impaired by the practice of appointing elective county officials to represent
defendants in criminal cases. Act of May 23, 1951, 52d Leg., R.S., ch. 408, 5 2, 1951 Tex. Gen.
Laws 752. Thus, in adopting this provision, the legislature was concerned about the burden of court
appointments on county officials, not about conflicts of interest addressed by section 2.08 of the
Code of Criminal Procedure and Opinion No. 183.
The Court of Criminal Appeals has construed former article 494b as relieving a lawyer who
is an elected county official Tom the duty of accepting court appointments, but not precluding his
serving ifhe chose to do so. Williams v. State, 321 S.W.2d 72 (Tex. Crim. App. 1958) (lawyer was
not disqualified for reason of being county judge from acting as attorney for an indigent defendant
under court appointment). It has also held that the defendant was not denied a fair trial or due
process because his court-appointed attorney was county judge at time oftrial. Exparte Reece, 417
S.W.2d 587 (Tex. Crim. App. 1967). In a case involving a legislator’s representation of an indigent
defendant, a Texas court of appeals stated as follows:
Because of these obligations imposed by the Sixth Amendment, Texas
developed an appointment system by which the trial court enters an order
commanding counsel to provide representation. It is true that State
legislators may excuse themselves from the appointment process, but they
also have the prerogative to fulfill their obligation to the court as attorneys.
Washington v. Waker County, 708 S.W.2d 493 (Tex. App.-Houston [lst Dist.] 1986, writ ref d
n.r.e. )
‘Former article 494b, TEX.CODEGRIM.PROC.ANN. (Vernon 1925). read as follows; “From and after the
effective date of this Act, no elected county official in this State, who is a member of the legal profession and licensed
to practice law in this State, shall be appointed by any court to represent any person accused of crime, and said official
shall be under no duty to defend any such persons under such appointment unless he chooses to do so: Act of May
23, 1951, 52dLeg., R.S., ch. 408, 5 1, 1951 Tex. Gen. Laws 752.
The Honorable Eddie Lucia, Jr. - Page 5 (X-0033)
On the basis ofthe judicial decisions we have cited, we conclude that the county judge is not
precluded from accepting judicial appointments to represent criminal defendants in the courts ofhis
county, but that in deciding whether or not to accept aparticularjudicial appointment, the judge must
consider relevant provisions of the Code ofProfessional Responsibility, and, in particular, rule 1.06.
We discussed this rule in Attorney General Letter Opinion No. 94-055, which considered whether
a newly-elected county commissioner who was an attorney could continue to accept judicial
appointments to represent indigent defendants while serving as county commissioner. We pointed
out some powers of the commissioners court that might raise conflicts of interest within rule
1.06(b)(2) of the Texas Disciplinary Rules of Professional Conduct, such as the commissioners
court’s role in approving the prosecuting attorney’s budget and providing other support for that
office and in supplementing the salary of district judges having jurisdiction in the county. TEX.
GOV’TCODEANN.$$41.106, .107 (Vernon 1988); see also id. § 32.031 (Cameron County). We
also stated as follows: “Whether rule 1,06(b)(2) of the Texas Disciplinary Rules of Professional
Conduct would require the county commissioner to refuse a court appointment in a particular case
involves the investigation and resolution of fact questions, which is beyond the scope of an advisory
legal opinion.” Tex. Att’y Gen. LO-94-055, at 2. Accordingly, the county judge must consider
whether the conflict between his role as county judge and his ethical responsibilities as a lawyer
would prevent him from taking a particular case. See TEX. DISCIPLINARY R. PROF’LCONDUCT
preamble.
The Honorable Eddie Lucia, Jr. - Page 6 (JC-0033)
SUMMARY
Section 82.064 of the Government Code precludes a county judge who
is licensed to practice law from practicing as an attorney at law in any county
or justice court over which the court on which the judge serves has original
or appellate jurisdiction. Pursuant to article 26.06 of the Code of Criminal
Procedure, the county judge need not accept a judicial appointment to
represent an indigent defendant in a criminal case, but may accept it if he
wishes to do so. The county judge’s practice of law must be in compliance
with the Texas Disciplinary Rules ofProfessional Conduct, and in particular,
with rule 1.06 relating to conflicts of interest. The county judge must
consider whether the conflict between his role as county judge and his ethical
responsibilities as a lawyer would prevent him from taking a particular case.
JOAN CO-RNYN
Attorney General of Texas
ANDY TAYLOR
First Assistant Attorney General
CLARK RENT ERVIN
Deputy Attorney General - General Counsel
ELIZABETH ROBINSON
Chair, Opinion Committee
Prepared by Susan L. Garrison
Assistant Attorney General