Untitled Texas Attorney General Opinion ( 2007 )

GREG A B B O T T
July 26,2007
The Honorable Craig Watkins Opinion No. GA-0557
Dallas County Criminal District Attorney
Frank Crowley Courts Building Re: Whether, under particular circumstances, a
133 North Industrial Boulevard, LB 19 former district judge may be employed in the
Dallas, Texas 75207-43 13 same county in which she sat as a judge
(RQ-0565-GA)
Dear Mr. Watkins:
You ask about "an appearance of impropriety, a conflict of interest or a violation of any law"
with respect to current employment of a former district judge.' You tell us that a former district
judge, Ms. Green, served in a Dallas County District Court and heard family law matters, including
cases that involve Child Protective Services ("CPS") removing a child from a home. See Request
Letter, supra note 1, at 1. You inform us that while presiding over these CPS cases, Ms. Green
"appointed and paid attorneys out of the general fund of Dallas County." Id. at 2. Ms. Green served
as district judge until December 3 1, 2006,2and is currently employed as an assistant district attorney
for Dallas County. See Request Letter, supra note 1, at 1. In that position, Ms. Green prosecutes
CPS cases and also supervises attorneys who prosecute CPS cases. See id. at 2. In some of the cases
currently being prosecuted by the district attorney's office, opposing counsel was appointed and paid
out of county funds by order of then-presiding Ms. Green. See id.
'Letter from Honorable Craig Watkins, Dallas County Criminal District Attorney, to Honorable Greg Abbott,
Attorney General of Texas, at 1 (Jan. 24, 2007) (on file with the Opinion Committee, also available at
http://www.oag.state.tx.us) [hereinafter Request Letter].
2Questions regarding an appearance of impropriety or conflict of interest for judges are primarily governed by
the Texas Code of Judicial Conduct. See TEX.CODEJUD.CONDUCT, reprinted in TEX.GOV'TCODEANN.,tit. 2, subtit.
G app. B (Vernon 2005 & Supp. 2006). In the absence of any indication that Ms. Green is subject to assignment under
chapter 74, Texas Government Code, we assume that she is no longer subject to the Code of Judicial Conduct. See id.
Canons 6A, F (providing canons applicable to former judges subject to assignment); see also TEX.GOV'TCODEANN.
53 74.054(a)(3) (Vernon 2005) (providing for judicial assignment), 74.055(c)(prescribing eligibility requirements for
judicial assignment, including certification of a "willingness not to appear and plead as an attorney in any court in this
state for a period of two years"), 82.064(a) ("A judge . . . o f . . . a district court . . . may not appear and plead as an
attorney at law in any court of record in this state."). In the event Ms. Green is subject to the Code of Judicial Conduct,
the State Commission on Judicial Conduct is responsible, in the first instance, for applying the judicial canons to specific
conduct by judges. See TEX.CONST.art. V, 5 1-a(2), (6)(A), (8); see also TEX.GOV'TCODEANN. $ 5 33.001L.051
(Vernon 2004) (pertaining to State Commission on Judicial Conduct).
The Honorable Craig Watkins - Page 2 (GA-0557)
You further inform us that your office has taken certain steps to avoid "the appearance of
impropriety, a conflict of interest or a violation of any law." Id. You state that Ms. Green "will not
handle any case filed" in the court in which she served, nor will Ms. Green "handle any case filed
in another court that is related . . . to a case" filed in the court in which she formerly served. Id.
Additionally, you tell us that the prosecutors under Ms. Green's supervision will not consult with
her about those same cases or discuss the cases in her presence. See id. And you inform us you are
"sending written notice to the parties on those cases" as required under the Texas Disciplinary Rules
of Professional Conduct. Id. (citing TEX.DISCIPLINARY R. PROF'LCONDUCT 1.1l(c)(2), reprinted
in TEX.GOV'TCODEANN.,tit. 2, subtit. G app. A (Vernon 2005) (TEx. STATEBARR.art. X, fj 9)).
In addition to your primary question, you also inquire whether the steps you have taken to
screen Ms. Green are sufficient and "[ulnder what circumstances [Ms. Green may] consult with [or]
advise the other attorneys that she is currently supervising [about] cases filed in or related to" cases
filed in Ms. Green's former court. Request Letter, supra note 1, at 2. You seek our opinion
regarding various aspects of Ms. Green's ability to prosecute cases or supervise attorneys on future
cases to be filed in her former court. See id.
We first note that Ms. Green's current employment does not implicate laws pertaining to dual
office holding and conflicts of interest. The proscriptions against dual office holding that stem from
the constitutional prohibition and the common-law doctrine of incompatibility are not applicable
here. See TEX.CONST.art. XVI, fj 40 (prohibiting individual from simultaneously holding more than
one "civil office of em~lument");~ see also Thomas v. Abernathy County Line Indep. Sch. Dist., 290
S.W. 152 (Tex. Comm'n App. 1927, judgm't adopted) (discussing common-law incompatibility).
For any relevant prohibition against dual office holding to arise, an individual must simultaneously
hold two offices. An assistant district attorney does not hold a public office. See State ex. rel. Hill
v. Pirtle, 887 S.W.2d 921'93 1 (Tex. Crim. App. 1994) (recognizing that an assistant district attorney
is an employee, not apublic officer); accordPowell v. State, 898 S.W.2d 821,825 (Tex. Crim. App.
1994). And further, Ms. Green does not hold two offices because she no longer serves as judge. See
supra, note 2. Accordingly, Ms. Green's current employment as an assistant district attorney does
not violate laws governing dual office holding.
Similarly, constitutional and statutory provisions governing conflicts of interests are not
implicated by Ms. Green's current employment. Chapter 572, Government Code, contains standards
of conduct for state officers and employees. See TEX.GOV'TCODEANN.ch. 572 (Vernon 2004 &
Supp. 2006). An assistant district attorney, however, is not a state employee subject to chapter 572.
See id. $6 572.002(11) (Vernon Supp. 2006) (defining "state employee" to include individuals, not
state officers, who are employed by a state agency), 572.002(10) (defining "state agency" to include
departments, offices, or other agencies that have authority that is not limited to a geographical
portion of the state); see also id. chs. 43 (Vernon 2004 & Supp. 2006) (defining judicial districts for
district attorneys), 44 (defining county territory for criminal district attorneys). And because Ms.
'See Tilley v. Rogers, 405 S.W.2d 220, 224 (Tex. Civ. App.-Beaumont 1966, writ ref d n.r.e.) (recognizing
there is no distinction between "civil office" and "public office").
The Honorable Craig Watkins - Page 3 (GA-0557)
Green serves as an assistant district attorney rather than as a judge, the constitutional conflict of
interest provision pertaining to judges is also not a bar. See TEX.CONST.art. V, 5 11.
Questions involving a lawyer's appearance of impropriety or conflict of interest arising from
the representation of a particular client are governed by the Texas Disciplinary Rules of Professional
Conduct ("rules of professional conduct"). See generally TEX.DISCIPLINARY R. PROF'LCONDUCT,
reprinted in TEX.GOV'TCODEANN.,tit. 2, subtit. G app. A (Vernon 2005 & Supp. 2006) (TEx.
STATEBARR. art. X, 5 9). Violations of, or sufficiency of actions taken under, the rules of
professional conduct are to be decided in the first instance by the lawyer, or by the disciplinary arm
of the Supreme Court of Texas and the State Bar of T e ~ a s See . ~ id. Preamble 7 15 (Vernon 2005)
(stating that rules are basis for lawyer's self-assessment, or for sanctioning a lawyer under the
administration of a disciplinary authority); see also TEX.GOV'TCODEANN.5 8 1.071 (Vernon 2005)
("Each attorney admitted to practice in this state . . . is subject to the disciplinary. . .jurisdiction of
the supreme court and the Commission for Lawyer Discipline, a committee of the state bar."); TEX.
R. DISCIPLINARY P. Preamble, reprinted in TEX. GOV'TCODEANN., tit. 2, subtit. G app. A-1
(Vernon 2005 & Supp. 2006) (disciplinary rules of procedure stating that the "Supreme Court of
Texas has the constitutional and statutory responsibility within the State for the lawyer discipline
. . . system"). The issuance of opinions on the propriety of attorney behavior under the rules of
professional conduct is a statutory function of the Committee on Professional Ethics, which consists
of nine members of the Texas State Bar who are appointed by the Texas Supreme Court. See TEX.
GOV'TCODEANN.5 5 8 1.091 (Vernon 2005) (creating Committee on Professional Ethics), 8 1.092(a)
(providing that the committee shall "express its opinion on the propriety of professional conduct");
see also Tex. Att'y Gen. Op. No. GA-0488 (2006) at 3 (stating the Committee on Professional Ethics
is the "appropriate body to consider the attorney's responsibility under the Texas Disciplinary Rules
of Professional Conduct").
Your query5thus requires a determination that initially is to be made by Ms. Green and the
State Bar of Texas. Moreover, questions about rules of professional conduct violations require an
examination of all the facts in a particular circumstance and are not appropriate for an attorney
general opinion. See Tex. Att'y Gen. Op. No. GA-0087 (2003) at 1 (recognizing that conflict of
interest questions involve questions of fact). Therefore, we cannot resolve your questions about any
appearance of impropriety or a conflict of interest under the rules of professional conduct. For the
same reasons, we cannot evaluate the sufficiency of efforts taken by your office to ensure that Ms.
Green's activities as assistant district attorney comport with the rules of professional conduct.
4The Texas Supreme Court has exclusive authority to regulate the practice of law in the State of Texas. See
State Bar of Tex. v. Gomez, 891 S.W.2d 243,245 (Tex. 1994); see also TEX.GOV'TCODEANN.5 8 1.071 (Vernon 2005)
(disciplinary jurisdiction over each attorney admitted to practice in the state). The State Bar of Texas is an arm of the
judiciary created to assist in the regulation of the practice of law. See TEX.GOV'TCODEA m . 5 81.011 (Vernon 2005).
'You do not ask about any impropriety, conflict of interest, or violation of law regarding Ms. Green's tenure
as district judge. See Request Letter, supra note 1, at 1-2. Thus, we do not consider any possible violation of provisions
governing successive employment of state officers or adjudicatory officials. See TEX.GOV'T CODEANN. § 572.054
(Vernon 2004); see also TEX.DISCIPLINARY R. PROF'LCONDUCT1.1l(b), reprinted in TEX.GOV'TCODEA m . , tit. 2,
subtit. G app. A (Vernon 2005) (TEx. STATEBARR. art. X, 5 9).
The Honorable Craig Watkins - Page 4 (GA-0557)
S U M M A R Y
The employment of a former district judge as an assistant
district attorney, under the particular circumstances, does not violate
constitutional and statutory provisions pertaining to dual office
holding or conflicts of interest.
The professional conduct of attorneys is governed by the
Texas Disciplinary Rules of Professional Conduct. Such rules
include prohibitions against appearances of impropriety and conflicts
of interest, but violations thereof are to be determined, in the first
instance, by the attorney and the disciplinary arm of the Supreme
Court of Texas and the State Bar of Texas. Morever, questions about
violations of the rules of professional conduct cannot be answered in
an attorney general opinion because they involve considerations of
fact.
Very truly yours,
Attorney ~ e M of1Texas
KENT C. SULLIVAN
First Assistant Attorney General
NANCY S. FULLER
Chair, Opinion Committee
Charlotte M. Harper
Assistant Attorney General, Opinion Committee