Untitled Texas Attorney General Opinion ( 2011 )

ATTORNEY GENERAL OF TEXAS
GREG ABBOTT
January 4,2011
The Honorable Jo Anne Bernal Opinion No. GA-0831
EI Paso County Attorney
500 East San Antonio, Room 503 Re: Whether chapter 161 of the Local
EI Paso, Texas 79901 Government Code is applicable to the District
Attorney of the 34th Judicial District and staff
(RQ-0865-GA)
Dear Ms. Bernal:
You seek our opinion on two questions involving provisions ofthe Local Government Code l
authorizing certain counties to create a county ethics commission. See TEX. Loc. GOy'T CODE ANN.
§§ 161.001 (providing that chapter 161 is applicable only to a county with a population of 650,000
or more, that is located on the international border, and that had a county ethics board before
September 1,2009), 161.051(a) (West Supp. 2010) (authorizing a county commissioners court to
create, by order, a county ethics commission); see also Tex. Att'y Gen. Op. No. GA-0817 (2010) at
1-2 (discussing chapter 161). Section 161.101 requires a county ethics commission created under
chapter 161 to "adopt, publish, and enforce an ethics code governing county public servants." TEX.
Loc. GOy'T CODE ANN. § 161.101(a) (West Supp. 2010). You tell us that the EI Paso County
Commissioners Court has created the EI Paso County Ethics Commission (the "Commission"), and
indicate that the Commission has adopted the EI Paso County Code of Ethics. Request Letter at I
(referring to the "EI Paso County Code of Ethics"); Brief at 1. You inquire whether the District
Attorney of the 34th Judicial District ("District Attorney"), and his or her staff, are subject to the EI
Paso County Code of Ethics. See Request Letter at 1; Brief at 1.
A county ethics code adopted under chapter 161 is applicable to "county public servants."
TEX. Loc. GOy'T CODE ANN. § 161.101(a) (West Supp. 2010). Chapter 161 defines a "county
public servant" to mean
a person elected, selected, appointed, employed, or otherwise
designated as one of the following ... :
(A) a county officer or county employee;
lRequest Letter at 1 [hereinafter Request Letter], and attached brief at 1 [hereinafter Brief] (available at
http://www.texasattorneygeneral.gov).
The Honorable Jo Anne Bernal - Page 2 (GA-0831)
(B) a person appointed by the commissioners court or a
county officer to a position on one of the following, whether the
position is compensated or not:
(i) an authority, board, bureau, commission, comrnittee,
council, department, district, division, or office of the
county; or
(ii) a multi-jurisdictional board;
(C) an attorney at law or notary public when participating in
the performance of a governmental function;
(D) a candidate for nomination or election to an elected county
office; or
(E) a person who is performing a governmental function
under a claim of right although the person is not legally
qualified or authorized to do so.
Id. § 161.002(8). You pose the question of whether a district attorney could be subject to a chapter
161 county ethics code under subsection 161.002(8)(C) as a "person elected, selected, appointed,
employed, or otherwise designated" as "an attorney at law or notary public when participating
in the performance of a governmental function." Brief at 3; see TEX. LOc. GOy'T CODE ANN.
§ 161.002(8)(C) eNest Supp. 2010). We therefore limit our analysis to a construction of subsection
161.002(8)(C).
The cardinal rule in construing statutes is "to ascertain and give effect to the Legislature's
intent." Hernandez v. Ebrom, 289 S.W.3d 316,318 (Tex. 2009). When possible, courts discern that
intent from the plain meaning ofthe words used in the statute. State v. Shumake, 199 S.W.3d 279,
284 (Tex. 2006). "This general rule applies unless enforcing the plain language of the statute as
written would produce absurd results." Entergy Gulf States, Inc. v. Summers, 282 S.W.3d 433, 437
(Tex. 2009) (citing Fleming Foods of Tex., Inc. v. Rylander, 6 S.w.3d 278, 284 (Tex. 1999)). The
meaning of statutory language is considered in context, not in isolation. City of Waco v. Kelley, 309
S.W.3d 536, 542 (Tex. 2010).
Subsection 161.002(8)(C) includes within its definition of a "county public servant" an
"attorney at law ... when participating in the perforinance of a governmental function." TEX. LOc.
GOy'T CODE ANN. § 161.002(8)(C) (West Supp. 2010). On its face, the language of subsection
161.002(8)(C) could be read to include any attorney at law in any state or federal jurisdiction
performing any governmental function. See id. However, chapter 161 applies to only a county as
specified. See id. § 161.001 ("This chapter applies only to a county that .... ") (emphasis added).
The Honorable Jo Anne Bernal - Page 3 (GA-0831)
Given that focus, subsection l61.002(8)(C) is appropriately viewed as having the same county
limitation such that it refers to the performance of a county governmental function. We therefore
construe subsection l61.002(8)(C) to refer to an attorney at law when participating in the
performance of a county governmental function.
Absent a definition of "governmental function" in chapter 161, we cannot speculate on all
of the various activities that may constitute a county governmental function. We can, however,
advise you that when and to the extent a district attorney or an attorney employed by a district
attorney participates in the performance of a county governmental function, he or she would be
subject to a code of ethics adopted pursuant to chapter 161.
With respect to the non-attorney staff of a district attorney, because they are not attorneys at
law, they are not within the scope of "county public servant" under subsection l61.002(8)(C). In
addition, the non-attorney members of the staff are not "county employees" under chapter 161
because they are employed by the district attorney.2 Accordingly, members of the staff of a district
attorney are not themselves subject to a code of ethics enacted under chapter 161.
In sum, the District Attorney of the 34th Judicial District and his or her attorneys would be
subject to the El Paso County Code of Ethics when and to the extent that they participate in the
performance of a county governmental function. The non-attorney staff members of the District
Attorney are not subject to the El Paso County Code of Ethics.
2We recognize that generally a county provides some funds for the operation of a district attorney's office and
has some monetary authority over the salaries of a district attorney's personnel. See TEx. Gov' T CODE ANN. § 41.106(a)
(West 2004) (providing that a district attorney fixes the salaries of his or her personnel subject to the approval of the
commissioners court of the county or counties composing the district), id. § 41. 101 (defining "prosecuting attorney" to
include a district attorney). For purposes of chapter 161, however, we believe that a district attorney employs his or her
staff. See id. § 41.102(a) (West Supp. 2010) ("A prosecuting attorney may employ . ... ") (emphasis added); see State
ex rei. Hill v. Pirtle, 887 S.W.2d 921, 929 (Tex. Crim. App. 1994) (recognizing, despite county's funding obligations,
district attorney's authority over hiring and employing of office personnel).
The Honorable Jo Anne Bernal - Page 4 (GA-083I)
SUMMARY
A county ethics code adopted under chapter 161, Local
Government Code, applies to "county public servants." The term
county public servant includes attorneys at law when participating in
the performance of a county governmental function. Accordingly,
when and to the extent the District Attorney of the 34th Judicial
District and his or her attorneys participate in the performance of a
county governmental function, they are county public servants subject
to the EI Paso County Code of Ethics. Because they are not county
public servants, the non-attorney staff members of the District
Attorney are not subject to the EI Paso County Code of Ethics.
DANIEL T. HODGE
First Assistant Attorney General
DAVID J. SCHENCK
Deputy Attorney General for Legal Counsel
NANCY S. FULLER
Chair, Opinion Committee
Charlotte M. Harper
Assistant Attorney General, Opinion Committee