ATTORNEY GENERAL OF TEXAS

GREG ABBOTT

July 29, 2008

The Honorable Billy W. Byrd

Upshur County Criminal District Attorney

405 North Titus Street

Gilmer, Texas 75644

Dear Mr. Byrd:

Opinion No. GA-0651

Re: Whether a justice of the peace who is an

attorney may be appointed to represent criminal

defendants in appellate proceedings (RQ-0674-GA)

You state that ajustice ofthe peace in your county, who is a licensed attorney, has requested

that he be put on the Criminal Appellate Appointment List.! You ask whether the justice may be

appointed to represent criminal defendants in appellate proceedings. See Request Letter, supra note

1, at 1.

Under both the Texas and United States constitutions, "an indigent defendant is entitled to

the effective assistance ofcounsel on appeal." Yates v. State, 557 S.W.2d 115, 117 (Tex. Crim. App.

1977) (citing Anders v. Cal., 386 U.S. 738 (1967); Douglas v. Cal., 372 U.S. 353 (1963); McMahon

v. State, 529 S.W.2d 771 (Tex. Crim. App. 1975); Currie v. State, 516S.W.2d684 (Tex. Crim. App.

1974); Hawkins v. State, 515 S.W.2d 275 (Tex. Crim. App. 1974)); Eaden v. State, 161 S.W.3d 173,

175 (Tex. App.-Eastland 2005, no pet.) (citing Yates). Under Texas statute,

[a]n eligible indigent defendant is entitled to have the trial

court appoint an attorney to represent him in the following appellate

and postconviction habeas corpus matters:

(1) an appeal to a court of appeals;

(2) an appeal to the Court of Criminal Appeals ifthe

appeal is made directly from the trial court or if a petition for

discretionary review has been granted;

(3) a habeas corpus proceeding ifthe court concludes

that the interests ofjustice require representation; and

lSee Letter from Honorable Billy W. Byrd, Upshur County Criminal District Attorney, to Honorable Greg

Abbott, Attorney General of Texas, at 2 (Jan. 29, 2008) (on file with the Opinion Committee, also available at

http://www.texasattorneygeneral.gov) [hereinafter Request Letter].
The Honorable Billy W. Byrd - Page 2 (GA-0651)

(4) any other appellate proceeding if the court

concludes that the interests ofjustice require representation.

TEX. CODE CRIM. PROC. ANN. art. 1.051(d) (Vernon Supp. 2007).

As you point out, the Texas Constitution providesjustice ofthe peace courts with "original

jurisdiction in criminal matters of misdemeanor· cases punishable by fine only ... and such other

jurisdiction as may be provided by law." TEX. CONST. art. V, § 19; see Request Letter, supra note

1, at 2; see also TEX. GOV'TCODEANN. §27.031(a) (Vernon Supp. 2007) (adding to ajustice ofthe

peace court's constitutional jurisdiction). You state that a justice of the peace also serves as a

magistrate and, as such, "has the duty to advise accused persons ofrights, [issue warrants of] arrest,

set[] and tak[e] bail bond[s], receiv[e] complaints, [and] appoint[] attorneys." Request Letter,supra

note 1, at 2; see TEX. CODE CRIM. PROC. ANN. art. 2.09 (Vernon Supp. 2007) (listing justices ofthe

peace as magistrates within the meaning ofthe Code ofCriminal Procedure); Hartv. State, 15 Tex.

App. 202, 1883 WL 8999, at

*16 (Tex. Ct. App. 1883) (stating that when a justice ofthe peace sits

for the purpose of inquiring into a criminal accusation against a person, the justice sits as a

magistrate in an examining court).2 You further note thatUpshur County prosecutions are conducted

in justice court by the Upshur County Criminal District Attorney, who also represents the state

in appeals from justice-court decisions "[e]xcept as provided by law." TEX. CODE CRIM. PROC.

ANN. art. 45.101 (Vernon 2006); Request Letter, supra note 1, at 2; TEX. GOV'T CODE ANN.

§ 44.330(a)-(b) (Vernon 2004) (requiring the Upshur County Criminal District Attorney to

"exclusively represent the state in all criminal matters before" the courts inferiorto the district courts

ofthe county and providing the criminal district attorney with "all the powers, duties and privileges

... that are conferred by law on county ... attorneys").

You question, in essence, whether an attorney who is a justice ofthe peace is an appropriate

individual to serve as appointed counsel to a criminal defendant in an appeal. You are primarily

concerned that the concurrent holding of positions as justice of the peace and a court-appointed

appellate attorney will create "a conflict ofinterest," and you cite in particular the Code ofJudicial

Conduct. Request Letter, supra note 1, at 1. We analyze your question by examining two statutes,

the Code ofJudicial Conduct, and the Texas Disciplinary Rules ofProfessional Conduct.

I. Statutes

Two statutes appear to suggest that a justice of the peace may accept an appointment to

represent a criminal defendant at the appellate level. First, Government Code section 82.064, which

bars certain judicial and county officers from appearing as an attorney in a case, does not mention

2See also, e.g., TEX. CODE CRIM. PROC'. ANN. art. 2.10 (Vernon 2005) (setting out general magisterial duties);

id. arts. 6.01-.04 (requiring a magistrate to act to prevent threatened offenses); id. ch. 7 (Vernon 2005 & Supp. 2007)

("Proceedings Before Magistrates to Prevent Offenses"); id. art. 15.03(a) (Vernon 2005) (authorizing a magistrate to

issue a warrant of arrest or a summons in certain circumstances); id. art. 15.17 (Vernon Supp. 2007) (setting out a

magistrate's duties when an arrested person is brought before the magistrate).
The Honorable Billy W. Byrd - Page 3 (GA-0651)

justices ofthe peace and thus, by implication, suggests that justices ofthe peace are excluded from

the ban. See TEX. GOV'T CODE ANN. § 82.064 (Vernon 2005). Under section 82.064:

(a) A judge or clerk of the supreme court, the court of

criminal appeals, a court of appeals, or a district court, or a sheriff

may not appear and plead as an attorney at law in any court ofrecord

in this state.

(b) 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 orjustice court except in cases over which the court in which

the judge or clerk serves has neither original nor appellate

jurisdiction.

Id. § 82.064(a)-(b); see also State Bar Committee on the Interpretation of Canons of Ethics,

Opinion 13 (1948), available at http://www.txethics.org/reference_opinions.asp?opinionnum=13

(determining that, under Government Code section 82.064's statutory predecessor and cases

construing the same, a county judge may practice law within specified limits) (last visited July 22,

2008). This office concluded in 1948 that because no constitutional orstatutory provision, including

the statutory predecessor to section 82.064(b), prohibited ajustice ofthe peace from practicing law,

the justice may "practice law in any court in the State except the justice court over which he

presides." Tex. Att'y Gen. Ope No. V-556 (1948) at 1-2.

Second, because, as we conclude below, a justice ofthe peace is an elected county official

for purposes of article 26.06 ofthe Code ofCriminal Procedure, article 26.06 implicitly authorizes

the justice to accept an appointment to represent a defendant in a criminal case. See TEX. CODE

CRIM. PROC. ANN. art. 26.06 (Vernon 1989). Article 26.06 limits the circumstances in which an

elected county official, among others, may be appointed to represent a defendant in a criminal

proceeding:

No court may appoint an elected county, district or state

official to represent a person accused ofcrime, unless the official has

notified the court ofhis availability for appointment. Ifan 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 ofhis office to do so. Nothing in this Code shall modify any

statutory provision for legi~lative continuance.

Id.; see also Williams v. State, 321 S.W.2d 72,75 (Tex. Crim. App. 1958) (construing the statutory

predecessor to article 26.06 to "relieve a lawyer who is an elected county official from the duty of

accepting [an] appointment, but [not to] preclude his serving ifhe chooses to do so").

The term "elected county official" has not been defined in Texas by statute, by a court, or by

this office. In our opinion, the phrase is synonymous with "elected county officer." Ajustice ofthe

peace is an elected county officer for some purposes, but an elected precinct officer for other
The Honorable Billy W. Byrd - Page 4 (GA-0651)

purposes. For example, article V, section 24 ofthe Texas Constitution provides for the removal of

county officers, including justices ofthe peace. See TEX. CONST. art. V, § 24; see also Crump v.

State, 5 S.W. 182, 183 (Tex. Ct. App. 1887, no writ) (stating that a justice ofthe peace is a county

officer for purposes of article V, section 24 as well as severalstatutes); cf Lane v. McLemore, 169

S.W. 1073, 1075 (Tex. Civ. App.-Galveston 1914, no writ) (stating that a justice of the peace,

whose functions are confined to the justice's county, is "commonly known and called" a county

officer (quoting State ex reI. Holmes v. Dillon, 2 S.W. 417, 419 (Mo. 1886)). By contrast, article

XVI, section 61(b) of the constitution, which provides for commissioners courts to determine

whether precinct officers should be paid on a fee or salary basis, indicates that justices ofthe peace

are precinct officers. See TEX. CONST. art. XVI, § 61(b); see also Chenault v. Bexar County, 782

S.W.2d 206,209 (Tex. 1989) (referring to a justice ofthe peace as a precinct officer); cf Harris

County v. Stewart, 41 S.W. 650, 654 (Tex. 1897) (stating that when the territorial limits ofa justice

ofthe peace's authority are considered, ajustice ofthe peace is a precinct officer). In 1890 the Texas

Supreme Court indicated that whether the term "county officer" encompasses a particular position,

such as ajustice ofthe peace, depends upon a consideration ofthe context and intent ofthe statute

at issue:

The words 'county officers' are terms very loosely used in our laws,

and to them no very well-defined meaning is assigned. They may

mean an officer who is elected solely by the voters ofthe county, or

one who has the power to exercise the functions of his office

throughout the entire county. It may also be applied to those whose

duties are confined to a particular subdivision of the county as

contradistinguished from those whose functions extend to every part

ofthe state. It follows that, in order to determine the sense in which

the words are used in any particular statute, we must look to the

context as well as to the reason and spirit ofthe law.

Reynolds v. Tarrant County, 14 S.W. 580, 581 (Tex. 1890).

Consistently with the Texas Supreme Court's directive to ascertain the context ofand reason

for the statute, we consider article 26.06's legislative history, which suggests that the Legislature

intended the term "elected county official" to be construed expansively. The Legislature enacted the

substance of article 26.06 relative to elected county officials in 1951 because "the business and

affairs ofnumerous countiesthroughout the State are seriously impaired and affected by the practice

of appointing elective county officials to represent defendants in criminal cases.,,3 Act ofMay 23,

1951, 52d Leg., R.S., ch. 408, § 2, 1951 Tex. Gen. Laws 752, 752; see ide § 1, 1951 Tex. Gen. Laws

at 752. The Legislature's stated concern for the timely performance ofcounty business suggeststhat

the Legislature intended the statute to be broadly construed to include, at the county level, any

3In 1965 the Legislature amended article 26.06's statutory predecessor to "extend" the statute to district and

state officials. TEX. CODE CRIM. PROC. ANN. art. 26.06 cmt. (Vernon 1989); see Act ofMay 27, 1965, 59th Leg., R.S.,

ch. 722, § 1, 1965 Tex. Gen. Laws 317, 426.
The Honorable Billy W. Byrd - Page 5 (GA-0651)

elected officer who conducts county business that could be impaired ifthe officer were appointed

to represent an indigent criminal defendant.

We conclude that the phrase "elected county official" in article 26.06 encompassesjustices

of the peace who are attorneys. Consequently, article 26.06 authorizes a justice of the peace to

decline an appointment to represent a criminal defendant but also implicitly recognizes the justice's

authority to accept such an appointment. Cf Williams, 321 S.W.2d at 75 (construing the statutory

predecessor to article 26.06 to "relieve a lawyer who is an elected county official from the duty of

accepting such appointment, but not [to] preclude his serving if he chooses to do so").

In sum, neither Government Code section 82.064 nor Code of Criminal Procedure article

26.06 prohibits a justice of the peace from accepting an appointment to represent an indigent

criminal defendant at the appellate level. Indeed, both implicitly recognize the justice's authority

to do so. As you suggest, however, ethical rules of conduct may apply.

II. Code of Judicial Conduct

Based on the principle that "[a]n independent and honorable judiciary is indispen~able to

justice in our society," the Code ofJudicial Conduct provides "high standards ofconduct" by which

all judges' conduct is measured. TEX. CODE JUD. CONDUCT, Canon 1, reprinted in TEX. GOV'T

CODE ANN. tit. 2, subtit. G app. B (Vernon 2005). Canon 4G ofthe Code specifically forbids a judge

to "practice law except as permitted by statute or this Code." Id. Canon 4G. Other canons broadly

require a judge to act in a manner that will inspire public confidence in the judiciary generally and

in the judge's individual capacity to act as a judge. Canon 2A, for example, requires a judge to "act

at all times in a manner that promotes public confidence in the integrity and impartiality of the

judiciary." Id. Canon 2A. Canon 4A requires ajudge to conduct all "extra-judicial activities so that

they do not: (1) cast reasonable doubt on the judge's capacity to act impartially as a judge; or (2)

interfere with the proper performance ofjudicial duties." Id. Canon 4A.

Canon 6C requires ajustice ofthe peace to comply with all provisions ofthe Code ofJudicial

Conduct, but excepts certain provisions-most ofwhich are not relevant here-from applicability.

See ide Canon 6C(1 ).4 In particular, Canon 6C(1)(d) excepts ajustice ofthe peace who is an attorney

from Canon 4G's prohibition on the practice oflaw "except practicing law in the court on which he

or she serves, or acting as a lawyer in a proceeding in which he or she has served as ajudge or in any

proceeding related thereto." Id. Canon 6C(1)(d).

4See also TEX. CODE JUD. CONDUCT, Canon 6(C)(I)(a)-(c), (e), reprinted in TEX. GOV'T CODE ANN. tit. 2,

subtit. G app. B (Vernon 2005) (excepting a justice ofthe peace from compliance "with Canon 3B(8) pertaining to ex

parte communications"; "with Canons 4D(2) [pertaining to investments and business operation], 4D(3) [pertaining to

the management ofinvestments to minimize disqualification], 4E [pertaining to fiduciary activities], or 4H [pertaining

to extra-judicial appointments]"; "with Canon 4F," which pertains to service as an arbitrator or mediator, in certain

circumstances; and "with Canon 5(3)," which requires a judge to resign from judicial office when the judge becomes a

candidate in a contested election for a nonjudicial office).
The Honorable Billy W. Byrd - Page 6 (GA-0651)

You suggest that Canon 6C(1)(d) ofthe Code ofJudicial Conduct may allow a justice ofthe

peace to act as a lawyer "except in a proceeding in which [the justice] has served as a Judge or in any

proceeding related thereto." Id.; see Request Letter, supra note 1, at 2. We read Canon 6C(I)(d)

similarly. By generally excepting justices of the peace from Canon4G, we understand Canon

6C(I)(d) to permit justices of the peace who are attorneys to practice law without the need for

express authority to do so under statute or the Code of Judicial Conduct. See TEX. CODE JUD.

CONDUCT, Canons 4G, 6C(I)(d) 1, reprinted in TEX. GOV'T CODE ANN. tit. 2, subtit. G app. B

(Vernon 2005). Canon 6C(I)(d) does not permit a justice of the peace to act as a lawyer in a

proceeding in which the justice served asjudge or in any proceeding related to a proceeding in which

the justice served as judge.5 Id. Canon 6C(I)(d). Canon 6C(I)(d) on its face appears to recognize

that ajustice may serve as appointed counsel for a criminal defendant in the appellate process so long

as the justice does not act "as a lawyer in a proceeding in which he or she has served as a judge or

in any proceeding related thereto." Id.

Nevertheless, this office cannot finally resolve whether a justice ofthe peace will violate the

canons of judicial conduct by accepting an appointment to represent a criminal defendant in a

particular appellate proceeding. This office cannot resolve fact questions. See Tex. Att'y Gen. Ope

No. GA-0446 (2006) at 18 ("Questions of fact are not appropriate to the opinion process.").

Moreover, the State Commission on Judicial Conduct (the "Commission") is responsible in the

first instance for applying the judicial canons to specific judicial conduct. See TEX. CONST. art. V,

§ l-a(2), (6)(A), (8) (creating the Commission and authorizing it to investigate alleged willful

violations ofthe Code ofJudicial Conduct, among other things); accord TEX. GOV'T CODE ANN.

§§ 33.002(a), .0211(a), .022(a), (c), (f), .023(a) (Vernon 2004); Tex. Att'y Gen. Ope No. GA-0551

(2007) at 2. We find no Commission statement on a judge's concurrent service as a court-appointed

attorney representing a criminal defendant in the appeals process.6 See generally STATE COMM'N

SCanon 6C(1)(d) also bans ajustice from practicing law in the justice's own court. TEX. CODE JUD. CONDUCT,

Canon 6C(1)(d), reprinted in TEX. GOV'T CODE ANN. tit. 2, subtit. G app. B (Vernon 2005). You tell us thatthe justice

about whom you ask is interested only in appellate work. See Request Letter, supra note 1, at 2. Ajustice court has no

appellate jurisdiction. See TEX. CONST. art. V, § 19; TEX. GOV'T CODE ANN. § 27.031(a) (Vernon Supp. 2007).

Accordingly, we need not stipulate that the justice may not practice in his own court.

6The Commission has spoken against judges serving "concurrently as ... law enforcement officer[s]."STATE

COMM'N ON JUDICIAL CONDUCT, PUBLIC STATEMENT No. PS-2000-1 (Mar. 24, 2000). The Commission's Public

Statement is premised on a separation-of-powers rationale:

Judges are members ofthe judicial branch of our government. Law enforcement

officers are part of the executive branch. Each branch is separate from, but coequal with, the other. Therefore, the Commission concludes that any judge who

attempts to serve both branches cannot accomplish the task without impairing the

effectiveness of one or both positions.

Id. Based upon the Commission's Public Statement, this office in 2007 concluded that a justice ofthe peace might be

prohibited from administering polygraph examinations for a criminal district attorney's office-"a part of law

enforcement and the executive branch ofgovernment." Tex. Att'y Gen. Ope No. GA-055.1 (2007) at 2. We have found

no statement that an attorney appointed to represent an indigent defendant in appellate proceedings is within the

executive branch ofgovernment such that the Commission's separation-of-powersrationale would apply here, however.
The Honorable Billy W. Byrd - Page 7 (GA-0651)

ON JUDICIAL CONDUCT, PUBLIC STATEMENTS, available at http://www.scjc.state.tx.us/pubstats.asp

(last visited July 22, 2008).

III. Disciplinary Rules of Professional Conduct

Although you do not cite the Texas Disciplinary Rules of Professional Conduct, they may

be relevant also. Cf TEX. CODE JUD. CONDUCT, Preamble, reprinted in TEX. GOV'T CODE ANN. tit.

2, subtit. G app. B (Vernon 2005) (stating that the Code ofJudicial Conduct is not "exhaustive" and

that judges "should also be governed in their judicial and personal conduct by general ethical

standards"). The Disciplinary Rules have been adopted to provide high standards ofethical conduct

for all members of the State Bar of Texas. See STATE BAR RULES art. II, § 3, reprinted in

TEX. GOV'T CODE ANN. tit. 2, subtit. G app. A (Vernon 2005); TEX. DISCIPLINARY R. OF PROF'L

CONDUCT, Preamble, reprinted in TEX. GOV'T CODE ANN. tit. 2, subtit. G app. B (Vernon 2005).

For example, Rule I.06(b)(2) generally prohibits a lawyer from representing a person if

the representation "reasonably appears to be or become adversely limited by the lawyer's . . .

responsibilities to another client or to a third person or by the lawyer's ... own interests." TEX.

DISCIPLINARY R. OF PROF'L CONDUCT I.06(b)(2), reprinted in TEX. GOV'T CODE ANN. tit. 2, subtit.

G app. A (Vernon 2005). Rule 1.1O(a) prohibits a lawyer from "represent[ing] a private client in

connection with a matter in which the lawyer participated personally and substantially as a public

officer, unless the appropriate government agency consents after consultation" and "[e]xcept as law

may otherwise expressly permit." Id. R. I.IO(a). And Rule I.II(a) prohibits a lawyer from

"represent[ing] anyone in connection with a matter in which the lawyer has passed upon the merits

or otherwise participated personally and substantially as an adjudicatory official ... unless all parties

to the proceeding consent after disclosure." Id. R. I.II(a).

Whether particular conduct violates these or any other rules of professional conduct is a

question requiring the resolution offact questions and cannot be decided by this office.7 See Tex.

7In 1948 the State Bar Committee on the Interpretation of Canons of Ethics (the "Committee"), which was

responsible for construing the Canons ofEthics for attorneys in effect at that time, construed Canon 6 with respect to a

justice ofthe peace's practice of law in superior courts or in a county outside his own. State Bar Committee on the

Interpretation of Canons of Ethics, Opinion 16 (1948), available at http://www.txethics.org/reference_opinions.asp

?opinionnum=16 (last visited July 22, 2008). Canon 6 cautioned an attorney against representing conflicting interests

unless all concerned persons had expressly consented following a full disclosure ofthe facts and forbade an attorney from

representing persons in matters adverse to previous clients. See Canons ofEthics, Canon 6, reprinted in STATE BAROF

TEXAS, RULES AND CANONS OF ETHICS (1958); cf TEX. DISCIPLINARY R. OF PROF'L CONDUCT 1.06, 1.09, reprinted in

TEX. GOV'T CODE ANN. tit. 2, subtit. G app. A (Vernon 2005) ("Conflict ofInterest: General Rule" and "Conflict of

Interest: Former Client"). The Committee opined that ajustice ofthe peace, who is a lawyer, may practice criminal law

in superior courts or in any county outside his own county "where the matter has not been before him in any manner in

his capacity ofjustice ofthe peace," but that "it would be highly preferable for said justice ofthe peace to refrain from

such practice even though ... no statute or Canon ... expressly prohibits him from doing so." State Bar Committee on

the Interpretation ofCanons ofEthics, Opinion 16 (1948), available at http://www.txethics.org/reference_opinions.asp

?opinionnum=16 (last visited July 22, 2008).

(continued...)
The Honorable Billy W. Byrd - Page 8 (GA-0651)

Att'y Gen. Ope No. GA-0446 (2006) at 18 ("Questions of fact are not appropriate to the opinion

process."); see also TEX. GOV'T CODE ANN. § 81.071 (Vernon 2005) ("Each attorney admitted to

practice in this state ... is subject to the disciplinary and disability jurisdiction ofthe supreme court

and the Commission for Lawyer Discipline, a committee ofthe state bar."); Kaufman v. Comm 'nfor

Lawyer Discipline, 197 S.W.3d 867,872 (Tex. App.-Corpus Christi 2006), cert. denied, 128 S. Ct.

331 (2007) (noting the jurisdiction ofthe supreme court and the Commission for Lawyer Discipline).

7(...continued)

In 1956 the Committee construed Canon 33 with respect to ajustice ofthe peace's advocacy in civil or criminal

proceedings arising in his court or other courts. See State Bar Committee on the Interpretation of Canons ofEthics,

Opinion 125 (1956), available athttp://www.txethics.org/reference_opinions.asp?opinionnum=125 (lastvisited July 22,

2008). Canon 33 prohibited an attorney from accepting employment "as an advocate in any matter upon the merits of

which he has previously acted in a judicial capacity." Canons ofEthics, Canon 33, reprinted in STATE BAR OF TEXAS,

RULES AND CANONS OF ETHICS (1958); cf TEX. DISCIPLINARY R. OF PROF'L CONDUCT 1.11, reprinted in TEX. GOV'T

CODE ANN. tit. 2, subtit. G app. A (Vernon 2005) ("Adjudicatory Official or Law Clerk"). The Committee opined that

"[i]t is improper for a justice ofthe peace to participate in any case [that] originated in his court or any other justice of

the peace court." State Bar Committee on the Interpretation of Canons of Ethics, Opinion 125 (1956), available at

http://www.txethics.org/reference_opinions.asp?opinionnum=125 (last visited July 22,2008). The Committee further

opined that"[i]t is improper or 'unwise' for a justice ofthe peace to defend criminal cases in any court regardless of

where the case originated." ld.

When these opinions were issued, there was no provision equivalent to Canon 6C(1)(d) ofthe Code ofJudicial

Conduct. We cannot predict how that Code of Judicial Conduct would impact any decision under the current

Disciplinary Rules of Professional Conduct.
The Honorable Billy W. Byrd - Page 9 (GA-0651)

SUMMARY

Neither Government Code section 82.064 nor Code of

Criminal Procedure article 26.06 prohibits ajustice ofthe peace who

is an attorney from accepting an appointment to represent an indigent

criminal defendant at the appellate level,and both implicitly

recognize the justice's authority to do so.

Nevertheless, the justice also is subjectto the Code ofJudicial

Conduct and the Texas Disciplinary Rules ofProfessional Conduct.

Whether ajustice ofthe peace may be appointed to represent criminal

defendants in appellate proceedings without violating the Code of

Judicial Conduct or the Disciplinary Rules of Professional Conduct

is a question requiring the resolution of fact issues and cannot be

determined by this office.

KENT C. SULLIVAN

First Assistant Attorney General

ANDREW WEBER

Deputy Attorney General for Legal Counsel

NANCY S. FULLER

Chair, Opinion Committee

Kymberly K. Oltrogge

Assistant Attorney General, Opinion Committee