JIM MAlTOX Attorney General

Supreme Court Building P. 0. BOX12548 A”3,h.Tx. 78711.2549 5121475-2501 Telex 910/874-1367 Telecopier 51214750266

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An Equal OppOriUnitYl Affirmative Action Employer 

# The Attorney General of Texas

garch 20. 1986

Eonorablc StephenC.Howard Orange CountyAttorney Courthouse Orange, Texas 7'1630 opinion No. 3%455

Re: Whether section 45.281(d) of the GovernmentCode prohibiting the private practice of law by the Orange County Attorney, contravenesthe equal protection provisions of the state and federalconstitutions

Dear Mr. Howard:

You ask whet:hursection 45.?81(d) of the Government Code which prohibits the Oran;se CountyAttorney and his assistants from engaging in the private practice of law is a denial of equal protectionunder both the state antifederalConstitutions. We conclude that it is not.

Section 45.2:s:L

of the GovernmentCode provides:

(a) OrangeCounty, inwhich the county attorney performs the duties of a district attorney, is entitle1 to receive annually from the state an amount esqual

to the compensationpaid by the state to district attorneys. The compensation from the state $,hall

be paid into the salary fund of the county Lo equalmonthly installments.
(b) The county attorney of Orange County is entitled to receive as compensation an amount at least equal to the amountpaid to the county by the state cnder Subsection (a) and any additional amount that the commissioners court of the county sets ss adequate compensation for the county attorney.
(c) IOrangeCounty is not entitled to receive state Eunds under Subchapter C, Chapter 41, in addition to the state compensation provided by Subsection (a).
(d) 'Thecounty attorney and assistant county attorneysmay not engage in theprivate practiceof law axtspt in civil matters involving the county.

p. 2070Honorable Stephen C. Rowartl- Page 2 (JM-455)

This subsection doesnotprohibit the commissioners court from employing end compensating **the** county attorney to repreisent the county in civil and condemnation cases. (Emphasisadded).

This statutory provision was enacted in 1969 as article 3887a-1, V.T.C.S.,with population brackets that applied only to Orange County et that time. See Acts 1969, 61st Leg., ch. 755, at 2213. In both 1971 and 1981.the legislature amended article 3887a-1 so that it continued to apply to Orange County. See **Acts** 1971, 62nd Leg.. ch. 266, §I, at 1161; Acts 19'11.. 62nd Leg..-. 542. 5120, at 1847;Acts 1981, 67th Leg., **ch.** 23'f!, 9106, at 586. Finally, in 1985, the Sixty-ninthLegislature, la an act relating to nonsubstantiverevision of statutes relating to the judiciary, recodified article 38878-1, V.T.C.S., as section 45.281 of the Government Code. See **Acts** 1985, **69th** Leg., ch. 480. §45.:!111, at 3897. The prohibitionagainst the private practice of law by the county attorney and his assistantshas remained a part of theprovision from its inception.

It isyour contenrion that section45.281(d),which prohibits the Orange CountyAttorney and his assistants from engagingin theprivate practice of law, Is a dental of equal protectionunder either article I, section 3 of the Texas Constitutionor the FourteenthAmendment to the United States Constitution. The courts have applied the federal standard in considering both the state and federal constitutional provisions. S rin Branch IndependentSchoolDistrictv. **Stamos,** 695 S.W.2d 556, 560 Tex. 1985); Detar Rospital, Inc. v. Estrsda, 694

-E8--- S.W.2d 359. 365 (Tex.ADD. - Cornus Christ1 1985.no writ>. Thus.we ***_** must evaluate the legislative classificationby applying a two tier analysis. Set Clementsv. Fashing.457 U.S. 957, 963 (1982);see also Detar llospital,Inc. v. Qtrada, a, at 365. If the classiflcarion involves a fundamental r:;:htor a suspect class, the **state** bears a heavy burden to justify the classification. But if these rights or interestsare absent from the classification,the stateneed only show that the basis for the classificationwas reasonably related to the legislativepurpose. See;:lementsv. Fashing,supra, at 963; see also University InterscholasticLeaguev. North Dallas Chamber of Commerce Soccer Association, 963 SrW.2d 513. 517 (Tex.App. - Dallas 1985, no writ). We are of the opinion that there is **no** fundamental right or suspect class involvedunder the circumstancespresented tous.

A public official does nothave a fundamentalright to maintaina private practice of law duringhis term of office. The Fifth Circuit Court of Appealshas held that auniversitywhich employsattorneysas faculty membsrs "may decfde to forbid the practice of law to every member of Its faculty." 'lee Tristerv. Universityof Mississippi, 420 F.2d 499, 504 (5th Cir. '?K9); see also Gosney v. Sonora Independent School District, 603 F.2d 522, 526 (5th Cir. 1979). Bence, a person has no constitutional r,ight to engage in the unlimited private practice of a professi,on while holding a public position of employment. We believe l:hatthis rule is particularly spplicable to

p. 2071Ronorable Stephen C. Howard:- Page 3 (JM-455)

public officialswho are leutrusted with a higher duty to the citizens of **the state.**  Therefore, we must decide whether the basis for the 

### statelegislature'8prohlbition of **the** Orange CountyAttorney and his 

### assistants

from the **private** practice of law is reasonably related to the object and goals of the~~~state. In order to make this determination, it is necessary to understand the nature and function of the Orange County Attorney and his assistant8 within the Texas criminal justice **system.**

A8 a preliminary mat.ter,section 45.281 of the Government Code
was enactedpursuant to articleV. section1 of the Texas Constitution whichprovides in part:

The Legislator; may establishsuch other courts
as it may deem necessaryandprescribe the jurisdiction and org+zation thereof.

. . . (Emphasis added).

This constitutionalproviflion has been construedto include the office of district attorney. H;urrisCounty v. Crooker. 248 S.W. 652, 653 (Tex. 1923). The legisi&re has been.given broad discretion under **the** provision to prescr~lbethe organization and function of the offices of county attorney, district attorney, and criminal district attorneywithin a judicia:. district. SeeNeal v. Sheppard, 209 S.W.2d 388, 390 (Tex. Civ. App. - Texarkana?48, writ ref'd). A statute enacted pursuant to arti::teV, section 1 of **the** Texas Constitution presenting the organizatj.aaof the office of county attorney is an authorized exception to the constitutional prohibition against **ensctments** of local and c'peciallaws. Jones v. Anderson, 189 S.W.2d 65, 66 (Tu. Civ. App. - !:an Antonio 1945,writ ref'd

. Consequently, section 45.281,which onrg applies to Orange County and prohibits the Orange CountyAttorney.antl his assistantsfrom theprivate practice of law is a valid local and special law expressly authorizedby article V, 

### section1 of the

### TexasConstitution.

finder the authority of article V, section 1 of **the** Texas Constitution, the state legislature **has** created various judicial districts. In each judici.sl district there is e prosecuting attorney who represents **the stat%**  in criminal proceedings. See Brady v. Brooks, 89 S.W. 1052, 1056 (Tex. 1905); see also 31G. Jur. 3d District and Municipal Attorneys 520. The prosecutor-la1function is performed in the varloull judicial districts by either a district attorney, criminal distri,:tattorney, or a countyattorney. See Tex. Const. art. V, $21. The office of district attorney is a cztitutional office, **which** is nn officer of the state end the court. See Lackey v. State, 190 S.$'.2d364, 365 (Tex. **Grim.** App. 1945). The officeof district attomcty has been interpreted

### to include the office of criminal district atl:omey. See RI11 County v. Sheppard, 178 S.W.2d 261, 263 (Tex. 1944). However, there can he no criminal district attorney when the legislature has authorized a county attorney toperform the prosecutorialfunctionin a particular county.

p. 2072Eonorable Stephen C. lioward - Page 4 (JM-455)

See Tex. 

### Conat.art.V. 121. Beuce, the legislaturehas required the county attoruey of OrangeCounty to perform the prosecutorial function within Orange 

### County. See Gov’t. Code 145.281. Consequently, each judicial district is orG,iaed differently in order to ensure the efficient and effectiveaductnistratiou of justice.

While it is true that, not every district. county, 

### or criminal district attorney is prohibited from engaging In **the** private practice of law, we are of the opir,ionthat the legislative derenainatlon to prohibit the Orange County Attorney and his assistants from engaging In the private practice of law is reasonable and well within the constitutionalpower of the legislature, since every judicialdistrict is organized pursuant to a spatial legislative enactment. See Gov’t. Code, 0624.001 et seq. There is a legitimate legislativepurpose in preventing the private practice of law in some districts while allowing it in others. ‘Cl: is reasonable for the legislature to prevent the private practice of law in those districts when such a practice will interferewiillthe efficient and effective administration of justice. The Orange County Attorney is 

### not the only public official performing a prosecutional function within a judicial district which is prohibite’dfrom maintaining a private practice of law. See Gov’t. attornez Gov’t. Code $4&..143(c)(Collin County criminal district Code 54,1,157(g)(Dallas County criminal district attorney); Gov’t. Code 143.180(g) (Harris County district attorney); Gov’t. Code 144.161(g) (Denton County criminal district attorney); Gov’t. Code 144.221 (Jasper County criminal district attorney). In addition, the legislaturehas prohibitedall those attorneysunder the Professional Prosecutors **Act** from engaging in the private practice of law. See Gov’t. Code 114t.001, et seq. We cannot presume that the legislature has actedunrezlsonably or arbitrarily in determining that
a separate private practlc,: of law by the Orange County Attorney and hia.assistants will hinder ,the effective and efficient administration of justice in the 128th J~.d.icial.Dlstrict. See Detar Hospital, Inc.
v. Estrada, w, at 361~. Moreover, a state may apply different lCiWS, or its laws dlfferemtlv. to reasonable classes of persons without vlolatlnn the eaual -drotection clause 

### of the Fourteenth Amendment. -

See Railroad ;:ommissionof Texas v. Miller, 434 S.W.2d 670. 673 (Texy968). The :.mendment prohibits a legislatureonly from treatingdifferentlypersonswho are “similarly situated”differently. See Ylck Wo v. Eopkins, 1.18U.S. 356, 374 (1886). Accordingly, we conclude 

### thatsection 45.281(d) of the Government Code does uot deny the Orange CountyAttorney (and his assistants the equalprotecclon of the law under either the **sc:ate** or federalConstitution.

SUMMARY

Section 45.2El of the Government Code which prohibits the Orange County **Attorney** and his assistants from engaging in the private practice of law is not a (denialof equal protecciou under either article I, section 3 of the Texas

p. 2073Honorable StephenC. Eoward .- Page 5 (m'45S)

Constitution or the Fourteenth Amendment to the United States Comtltution. A public official or employee does mt have a fundamental right to maintain a privatepractice of law duringhis term of office.

There is a legitimate legislative purpose In preventing the private practice of law in soee judicial districts while allowing it in others. It is reasonable for the legislature to prevent the Orange County Attorney and his assistantsfrom engaging in the private practice of law to ensure the efficient and effective administration of justicewithin the judicial district.



# Jzyu

MATTOX AttorneyGeneral of Texas

JACK HIGHTOWER First **Assistant** AttorneyGc,neral

MARY KELLER ExecutiveAssistantAttornc:y General

ROBERT GRAY SpecialAssistantAttorney General

RICE GILPIN Chairman, OpinionCommittee
Preparedby Tony Guillory AssistantAttorneyGeneral

p. 2074