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 inappellateproceedings (RQ-0674-GA)

You state that ajustice ofthe peace inyour county, who is a licensed attorney, has requested that he be put on the Criminal Appellate Appointment List.! You ask whether thejustice may be appointedto represent criminal defendants in appellate proceedings. 

### See RequestLetter, 

### 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 ofappeals; (2) an appeal to the Court ofCriminal 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 of justice 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

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(4) any other appellate proceeding if the court concludes that the interests of justice 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 ofmisdemeanor· 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 ofthe peace also serves as a magistrate and, as such, "has the duty to advise accused persons ofrights, [issue warrants of] arrest, set[] andtak[e] bail bond[s], receiv[e] complaints, [and] appoint[] attorneys." RequestLetter, 

### supra note 1, at 2; 

### see TEX. CODE CRIM. PROC. ANN. art. 2.09 (Vernon Supp. 2007) (listingjustices 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 ajustice ofthe peace sits for the purpose of inquiring into a criminal accusation against a person, the justice sits as a magistrate inanexamining court). 2 YoufurthernotethatUpshurCountyprosecutions 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 "exclusivelyrepresentthe state in all criminalmatters before" the courts inferiorto the districtcourts 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 ajustice 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 ofpositions as justice ofthe peace and a court-appointed appellate attorney will create "a conflict ofinterest," and you cite in particularthe 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 ajustice ofthe peace may accept an appointment to represent a criminal defendant atthe appellate level. First, Government Code section 82.064, which bars certainjudicial 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 ofarrest 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

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justices ofthe peace and thus, by implication, suggests thatjustices 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 ofappeals, 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 countyjudge may practice law within specified limits) (last visited July 22, 2008). This office concludedin 1948 thatbecauseno constitutional or statutoryprovision, including the statutorypredecessorto section 82.064(b), prohibited ajustice ofthe peace from practicing law, the justice may "practice law in any court in the State except thejustice court over which he presides." Tex. Att'y Gen. Ope No. V-556 (1948) at 1-2. Second, because, as we conclude below, ajustice ofthe peace is an elected county 

### official for purposes ofarticle 26.06 ofthe Code ofCriminal Procedure, article 26.06 implicitly authorizes thejustice 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 aperson accused ofcrime, unless the official has notifiedthe courtofhis availabilityfor appointment. Ifan official has notified the court ofhis availability and is appointed as counsel, he may decline the appointment ifhe determines that it is in the best interest ofhis office to do so. Nothing inthis 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 notbeen defined in Texas by statute, by a court, orby 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 otherThe Honorable Billy W. Byrd

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purposes. For example, article V, section 24 ofthe Texas Constitution provides for the removal of county officers, includingjustices 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 ajustice ofthe peace is a county officer for purposes ofarticle V, section 24 as well as several statutes); cfLane 

### v. McLemore, 169 S.W. 1073, 1075 (Tex. Civ. App.-Galveston 1914, no writ) (stating that ajustice ofthe 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 thatjustices 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 ajustice ofthe peace as a precinct officer); cfHarris County 

### v. Stewart, 41 S.W. 650, 654 (Tex. 1897) (stating that when the territorial limits ofajustice ofthe peace's authority are considered, ajustice ofthe peace is aprecinct officer). In 1890the Texas Supreme Court indicated that whether the term "county officer" encompasses a particularposition, 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). Consistentlywiththe Texas Supreme Court's directive to ascertainthe contextofandreason for the statute, we consider article 26.06's legislative history, which suggests that the Legislature intendedtheterm "electedcounty official" to be construedexpansively. The Legislature enactedthe substance ofarticle 26.06 relative to elected county officials in 1951 because "the business and affairs ofnumerous counties throughoutthe State are seriously impaired and affectedbythe practice ofappointing elective county officials to represent defendants in criminal cases.,,3 Act ofMay 23, 1951, 52dLeg., R.S., ch. 408, § 2, 1951 Tex. Gen. Laws 752, 752; see ide § 1, 1951 Tex. Gen. Laws at752. TheLegislature's stated concernforthe timelyperformance ofcountybusiness suggests that 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

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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 ofthe peace who are attorneys. Consequently, article 26.06 authorizes ajustice ofthe peace to decline an appointmentto represent a criminal defendantbut also implicitlyrecognizes thejustice'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 ifhe chooses to do so").
In sum, neither Government Code section 82.064 nor Code ofCriminal 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 thejustice's authority to do so. As you suggest, however, ethical rules ofconduct may apply. 

### II. Code ofJudicial Conduct Based on the principle that "[a]n independent and honorablejudiciary is**indispen~able** to justice in our society," the Code ofJudicial Conductprovides "high standards ofconduct" by which all judges' conduct is measured. TEX. CODE JUD. CONDUCT, Canon 1, 

### reprinted in TEX. GOV'T CODEANN. tit. 2, subtit. G app. B (Vernon 2005). Canon4G ofthe Code specificallyforbids ajudge to "practice law except as permitted by statute orthis Code." 

### Id. Canon 4G. Other canons broadly require ajudge to act in a manner that will inspire public confidence in thejudiciary generally and in thejudge's individual capacityto act as ajudge. Canon 2A, for example, requires ajudge to "act at all times in a manner that promotes public confidence in the integrity and impartiality ofthe judiciary." 

### Id. Canon 2A. Canon 4A requires ajudge to conduct all "extra-judicial activities so that they do not: (1) cast reasonable doubt on thejudge's capacity to act impartially as ajudge; or (2) interfere with the proper performance of judicial duties." 

### Id. Canon 4A. Canon 6C requires ajustice ofthepeace to complywith all provisions ofthe Code ofJudicial Conduct, but excepts certainprovisions-most ofwhich are not relevant here-from applicability. 

### See ide Canon 6C(1 

### ).4 Inparticular, Canon 6C(1)(d) excepts ajustice ofthepeace who is an attorney from Canon 4G's prohibition on the practice oflaw "exceptpracticing law in the court on which he or she serves, or acting as a lawyer in aproceeding in whichhe or she has served as ajudge orin 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 ajustice 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 ajudge to resign fromjudicial office when thejudge becomes a candidate in a contested election for a nonjudicial office).The Honorable Billy W. Byrd

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You suggestthat Canon 6C( 1)(d) ofthe Code ofJudicial Conductmay allow ajustice ofthe peace to act as a lawyer "exceptin a proceeding inwhich [thejustice] has served as a Judge orin any proceeding related thereto." Id.; see Request Letter, supra note 1, at 2. We read Canon 6C(I)(d) similarly. By generally excepting justices ofthe peace from Canon4G, we understand Canon 6C(I)(d) to permitjustices ofthe peace who are attorneys to practice law without the need for express authority to do so under statute or the Code ofJudicial 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 ofthe peace to act as a lawyer in a proceeding inwhichthejustice served asjudge orin anyproceedingrelatedto aproceeding inwhich thejustice served asjudge. 5 Id. Canon 6C(I)(d). Canon 6C(I)(d) on its face appears to recognize thatajusticemay serve as appointed counsel for a criminal defendantinthe appellate process so long as thejustice does not act "as a lawyer in a proceeding in which he or she has served as ajudge or in any proceeding related thereto." Id. Nevertheless, this office cannotfinally resolve whether ajustice ofthe peace will violate the canons ofjudicial conduct by accepting an appointment to represent a criminal defendant in a particular appellate proceeding. This office cannotresolve 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 thejudicial canons to specificjudicial 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); accordTEX. 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 statementon ajudge'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 inthejustice's own court. TEX. CODEJUD. CONDUCT, Canon 6C(1)(d), reprinted in TEX. GOV'T CODEANN. tit. 2, subtit. G app. B (Vernon 2005). You tell us thatthejustice about whom you ask is interested only in appellate work. See Request Letter, supra note 1, at 2. 

### A justice courthas 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 thejustice may not practice in his own court. 6The Commission has spoken againstjudges 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 ofthejudicial branch ofour government. Law enforcement officers are part ofthe executive branch. Each branch is separate from, but coequal with, the other. Therefore, the Commission concludes that anyjudge who attempts to serve both branches cannot accomplish the task without impairing the effectiveness ofone or both positions. Id. Based upon the Commission's Public Statement, this office in 2007 concluded that ajustice 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 executivebranch ofgovernment suchthatthe Commission's separation-of-powers rationale would apply here, however.The Honorable Billy W. Byrd

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ONJUDICIAL CONDUCT, PUBLIC STATEMENTS, available athttp://www.scjc.state.tx.us/pubstats.asp (last visited July 22, 2008). 

### III. Disciplinary Rules ofProfessional Conduct Although you do not cite the Texas Disciplinary Rules ofProfessional Conduct, they may be relevant also. CfTEX. CODEJUD. CONDUCT, Preamble, reprintedin TEX. GOV'T CODEANN. tit. 2, subtit. G app. B (Vernon 2005) (stating thatthe Code ofJudicial Conduct is not "exhaustive" and that judges "should also be governed in their judicial and personal conduct by general ethical standards"). The DisciplinaryRules have been adoptedto 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. DISCIPLINARYR. OFPROF'L CONDUCT I.06(b)(2), reprintedin TEX. GOV'TCODEANN. tit. 2, subtit. G app. A (Vernon 2005). Rule 1.1 O(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]xceptas 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 orotherwiseparticipatedpersonally and substantially as an adjudicatory official

... unless allparties to the proceeding consent after disclosure." 

### Id. R. I.II(a). Whether particular conduct violates these or any other rules ofprofessional 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 ofCanons ofEthics (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 oflaw in superior courts or in a county outside his own. State Bar Committee on the Interpretation of Canons ofEthics, 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 concernedpersons hadexpressly consentedfollowing afull disclosure of the facts and forbade an attorney from representing persons in matters adverse to previous clients. See Canons ofEthics, Canon 6, reprintedin STATEBAROF TEXAS, RULES AND CANONS OF ETHICS (1958); cfTEX. 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 opinedthat 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 of justice ofthe peace," but that "it would be highly preferable for saidjustice 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 athttp://www.txethics.org/reference

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

...)The Honorable Billy W. Byrd

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Att'y Gen. Ope No. GA-0446 (2006) at 18 ("Questions offact 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 subjectto the disciplinary and disabilityjurisdiction ofthe supreme court andthe Commission for LawyerDiscipline, acommittee ofthe state bar."); 

### Kaufman v. 

### Comm 'nfor LawyerDiscipline, 197 S.W.3d 867,872 (Tex. App.-Corpus Christi 2006), 

### cert. denied, 128 S. Ct. 331 (2007) (notingthejurisdictionof the supreme courtandthe CommissionforLawyerDiscipline).

7(

...continued) In 1956 the Committee construed Canon 33 withrespectto ajustice ofthe peace's advocacy in civil or criminal proceedings arising in his court or other courts. See State Bar Committee on the Interpretation ofCanons ofEthics, Opinion 125 (1956), available athttp://www.txethics.org/reference_opinions.asp?opinionnum=125 (lastvisitedJuly22, 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 ajudicial capacity." Canons ofEthics, Canon 33, reprinted in STATE BAROF TEXAS, RULES AND CANONS OF ETHICS (1958); cfTEX. DISCIPLINARY R. OF PROF'L CONDUCT 1.11, reprinted in TEX. GOV'T CODEANN. tit. 2, subtit. G app. A (Vernon 2005) ("Adjudicatory Official or Law Clerk"). The Committee opined that "[i]t is improper for ajustice ofthe peace to participate in any case [that] originated in his court or any otherjustice of the peace court." State Bar Committee on the Interpretation ofCanons ofEthics, 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 ajustice 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 equivalentto 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 ofProfessional Conduct.The Honorable Billy W. Byrd

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### 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 appointmentto represent an indigent criminal defendant at the appellate level,and both implicitly recognize thejustice's authority to do so. Nevertheless, thejustice also is subjectto the Code ofJudicial Conduct and the Texas Disciplinary Rules ofProfessional Conduct. Whetherajustice ofthe peace maybe appointedto representcriminal defendants in appellate proceedings without violating the Code of Judicial Conduct or the Disciplinary Rules ofProfessional 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