JIM MAlTOX 

Attorney General 

Supreme Court Building 

P. 0. BOX 12548 

A”3,h.Tx. 78711.2549 

5121475-2501 

Telex 910/874-1367 

Telecopier 51214750266 

714 Jackson. Suite 700 

Dallas, TX. 75202.4509 

2141742.9944 

4924 Alberta Ave.. suite 160 

E, Paso. TX. 79905.2793 

915/533-m 

,001 Texas. Suite 700 

Houston,TX. 77002-3111 

71312235896 

606 Broadway. Suite 312 

L”bbock,Tx. 79401.3479 

9CW47.5239 

4309 N. Tenth, Suite B 

MCAlk”. TX. 79501-1695 

512M2-4547 

200 Main Plaza, Suite 400 

San Antonio. TX. 782052797 

512'225-4191 

An Equal OppOriUnitYl 

Affirmative Action Employer 

The Attorney General of Texas 

garch 20. 1986 

Eonorablc Stephen C. Howard 

Orange County Attorney 

Courthouse 

Orange, Texas 7'1630 

opinion No. 3%455 

Re: Whether section 45.281(d) 

of the Government Code prohibiting the private practice 

of law by the Orange County 

Attorney, contravenes the equal 

protection provisions of the 

state and federal constitutions 

Dear Mr. Howard: 

You ask whet:hur section 45.?81(d) of the Government Code which 

prohibits the Oran;se County Attorney and his assistants from engaging 

in the private practice of law is a denial of equal protection under 

both the state anti federal Constitutions. We conclude that it is not. 

Section 45.2:s:L of the Government Code provides: 

(a) Orange County, in which the county attorney 

performs the duties of a district attorney, is 

entitle1 to receive annually from the state an 

amount esqual to the compensation paid by the state 

to district attorneys. The compensation from the 

state $,hall be paid into the salary fund of the 

county Lo equal monthly installments. 

(b) The county attorney of Orange County is 

entitled to receive as compensation an amount at 

least equal to the amount paid 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) IOrange County is not entitled to receive 

state Eunds under Subchapter C, Chapter 41, in 

addition to the state compensation provided by 

Subsection (a). 

(d) 'The county attorney and assistant county 

attorneys may not engage in the private practice of 

law axtspt in civil matters involving the county. 

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

This subsection does not prohibit the commissioners 

court from employing end compensating the county 

attorney to repreisent the county in civil and condemnation cases. (Emphasis added). 

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-ninth Legislature, la an act relating to nonsubstantive revision 

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 assistants has 

remained a part of the provision from its inception. 

It is your contenrion that section 45.281(d), which prohibits the 

Orange County Attorney and his assistants from engaging in the private 

practice of law, Is a dental of equal protection under either article 

I, section 3 of the Texas Constitution or the Fourteenth Amendment to 

the United States Constitution. The courts have applied the federal 

standard in considering both the state and federal constitutional 

provisions. S rin Branch Independent School District v. Stamos, 695 

S.W.2d 556, -E8--- 560 Tex. 1985); Detar Rospital, Inc. v. Estrsda, 694 

S.W.2d 359. 365 (Tex. ADD. *_ - Cornus Christ1 1985. no writ>. Thus. we 

must evaluate the legislative classification by applying a two tier 

analysis. Set Clements v. 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 

interests are absent from the classification, the state need only show 

that the basis for the classification was reasonably related to the 

legislative purpose. See;:lements v. Fashing, supra, at 963; see also 

University Interscholastic League v. 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 involved under the circumstances presented to us. 

A public official does not have a fundamental right to maintain a 

private practice of law during his term of office. The Fifth Circuit 

Court of Appeals has held that a university which employs attorneys as 

faculty membsrs "may decfde to forbid the practice of law to every 

member of Its faculty." 'lee Trister v. University of 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:hat this rule is particularly spplicable to 

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

public officials who are leutrusted with a higher duty to the citizens 

of the state. Therefore, we must decide whether the basis for the 

state legislature'8 prohlbition of the Orange County Attorney 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 enacted pursuant to article V. section 1 of the Texas Constitution 

which provides in part: 

The Legislator; may establish such other courts 

as it may deem necessary and prescribe the jurisdiction and org+zation thereof. . . . (Emphasis 

added). 

This constitutional proviflion has been construed to include the office 

of district attorney. H;urris County v. Crooker. 248 S.W. 652, 653 

(Tex. 1923). The legisi&re has been.given broad discretion under 

the provision to prescr~lbe the organization and function of the 

offices of county attorney, district attorney, and criminal district 

attorney within a judicia:. district. See Neal v. Sheppard, 209 S.W.2d 

388, 390 (Tex. Civ. App. - Texarkana?48, writ ref'd). A statute 

enacted pursuant to arti::te V, section 1 of the Texas Constitution 

presenting the organizatj.aa of the office of county attorney is an 

authorized exception to the constitutional prohibition against 

ensctments of local and c'pecial laws. 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 County Attorney.antl his assistants from the private practice of 

law is a valid local and special law expressly authorized by article 

V, section 1 of the Texas Constitution. 

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-la1 function is 

performed in the varloull judicial districts by either a district 

attorney, criminal distri,:t attorney, or a county attorney. 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.$'.2d 364, 365 (Tex. Grim. App. 1945). The 

office of 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 to perform the prosecutorial function in a particular county. 

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

See Tex. Conat. art. V. 121. Beuce, the legislature has required the 

county attoruey of Orange County 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 effective aductnistratiou 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,ion that 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 

constitutional power of the legislature , since every judicial district 

is organized pursuant to a spatial legislative enactment. See Gov’t. 

Code, 0624.001 et seq. There is a legitimate legislative purpose 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 interfere wiill the 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’d from 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 legislature has prohibited all those attorneys under 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 acted unrezlsonably 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 - ;:ommission of Texas v. Miller, 434 S.W.2d 

670. 673 (Texy968). The :.mendment prohibits a legislature only from 

treating differently persons who are “similarly situated” differently. 

See Ylck Wo v. Eopkins, 1.18 U.S. 356, 374 (1886). Accordingly, we 

conclude that section 45.281(d) of the Government Code does uot deny 

the Orange County Attorney (and his assistants the equal protecclon of 

the law under either the sc:ate or federal Constitution. 

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 (denial of equal protecciou under 

either article I, section 3 of the Texas 

p. 2073 
Honorable Stephen C. 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 private practice of law during his 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 assistants from 

engaging in the private practice of law to ensure 

the efficient and effective administration of 

justice within the judicial district. 

Jzyu 

MATTOX 

Attorney General of Texas 

JACK HIGHTOWER 

First Assistant Attorney Gc,neral 

MARY KELLER 

Executive Assistant Attornc:y General 

ROBERT GRAY 

Special Assistant Attorney General 

RICE GILPIN 

Chairman, Opinion Committee 

Prepared by Tony Guillory 

Assistant Attorney General 

p. 2074