Untitled Texas Attorney General Opinion ( 2009 )

ATTORNEY GENERAL OF TEXAS
GREG ABBOTT
June 1,2009
The Honorable Armando R. Villalobos Opinion No. GA-0716
Cameron County District and County Attorney
Cameron County Courthouse Re: Whether an assistant county or assistant district
974 East Harrison Street attorney may lawfully and ethically practice as a
Brownsville, Texas 78520 criminal defense attorney in federal court and in the
state courts of a neighboring county
(RQ-0754-GA)
Dear Mr. Villalobos:
You ask whether an assistant county or assistant district attorney may lawfully and ethically
practice as a criminal defense attorney in federal court and in the state courts of a neighboring
county.! A provision of the Code of Criminal Procedure provides in relevant part that "[d]istrict and
county attorneys shall not be of counsel adversely to the State in any case, in any court." TEx. CODE
CRIM. PROC. ANN. art. 2.08 (Vernon 2005).
Section 41.102 of the Government Code permits a "prosecuting attorney" to "employ . . .
assistant prosecuting attorneys." TEx. GOV'T CODE ANN. § 41.102(a) (Vernon Supp. 2008). A
"prosecuting attorney" is defined as "a county attorney, district attorney, or criminal district
attorney." Id § 41.101 (Vernon 2004). An "assistant prosecuting attorney may perform all duties
imposed by law on the prosecuting attorney," and the qualifications required of an assistant county
attorney "are the same as for the county attorney who appoints him." Id §§ 41. 103 (b), 45.002(a).
It does not necessarily follow, however, that an assistant prosecuting attorney is subject to the same
statutory disqualifications as an actual county, district, or criminal district attorney.
In a prior opinion, we construed article 2.08 of the Code of Criminal Procedure to mean that
that statute's disqualification does not apply to an individual appointed to serve as a county attorney
pro tern under article 2.07. Tex. Att'y Gen. Op. No. GA-0241 (2004) at 4. That opinion noted that
"[a]lthough the Legislature could have written article 2.08 to also apply to an attorney appointed pro
tern, it did not do so. We may 'add words into a statutory provision only when necessary to give
effect to clear legislative intent. ,,, Id (citing Fitzgerald v. Adv. Spine Fixation Sys., Inc., 996 S. W.2d
864,867 (Tex. 1999». Likewise, the Legislature could have written article 2.08 to apply to assistant
county and assistant district attorneys, but it did not do so. As a result, we conclude that article 2.08
lRequest Letter (available at http://www.texasattomeygeneral.gov)
The Honorable Armando R. Villalobos' - Page 2 (GA-0716)
does not prohibit an assistant county or assistant district attorney from practicing as a criminal
defense attorney in federal court or in the state courts of a neighboring county.
On the other hand, section 46.005 of the Government Code prohibits a "county prosecutor"
and any assistant ofa prosecutor from engaging in the "private practice of law" if, "from all state
and county funds received, the county prosecutor or assistant receives a salary that is equal to or
more than 80 percent of the benchmark salary." TEx. GOV'T CODE ANN. § 46.005(a), (c) (Vernon
Supp. 2008). The term "county prosecutor" applies to a "constitutional county attorney who does
not have general felony jurisdiction and who is not a state prosecutor." Id § 46.001(1).2 Thus, under
the limited circumstances of section 46.005 of the Government Code, an assistant county attorney
is statutorily barred from simultaneously practicing as a criminal defense attorney in federal court
or in the state courts of a neighboring county.
With regard to ethical considerations, Rules 1.06 and 1.10 of the Texas Disciplinary Rules
of Professional Conduct provide some cautionary warnings. A comment to Rule 1.06(b), the general
rule for conflict ofinterest, warns that "[l]oyalty to a client is impaired not only by the representation
of opposing parties ... but also in any situation when a lawyer may not be able to consider,
recommend or carry out an appropriate course of action for one client because of the lawyer's own
interests or responsibilities to others." TEx. DISCIPLINARY R. PROF'L CONDUCT 1.06 cmt. 4,
reprinted in TEx. GOV'TCODEANN. tit. 2, subtit. G app. A (Vernon 2005) (TEx. STATE BARR. art.
X, § 9). See State Bar Ethics Comm. Op. No. 419 (1984) (construing prior rule regarding county
attorney's conflict of interest). A comment to Rule 1.10, which limits successive government and
private employment, declares that "[t]his Rule prevents a lawyer from exploiting public office for
the advantage of a private client." Id 1.10 cmt. 1. Inquiries regarding questions of professional
conduct for attorneys should be addressed to the Committee on Professional Ethics. See TEx. GOV'T
CODE ANN. §§ 81.091-.092 (Vernon 2005).
2The section is also not applicable to an assistant county prosecutor under certain other narrow circumstances.
See TEX. GOV'TCODEANN. § 46.005(c)-(e) (Vernon Supp. 2008).
The Honorable Armando R. Villalobos - Page. 3 (GA-0716)
SUMMARY
Article 2.08 of the Code of Criminal Procedure does not
prohibit an assistant county or assistant district attorney from
practicing as a criminal defense attorney in federal court or in the
state courts of a neighboring county, although, under certain
circumstances, section 46.005 of the Government Code bars such
practice by an assistant county attorney. Rules 1.06 and 1.10 of the
Texas Disciplinary Rules of Professional Conduct caution against any
such representation of a private client, although such inquiries must
ultimately be addressed to the Committee on Professional Ethics.
Very truly yours,
ANDREW WEBER
First Assistant Attorney General
JONATHAN K. FRELS
Deputy Attorney General for Legal Counsel
NANCY S. FULLER
Chair, Opinion Committee
Rick Gilpin
Assistant Attorney General, Opinion Committee