GREG ABBOTT 

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 

13 3 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, 2006,2 and 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. CODE JUD. CONDUCT, reprinted in TEX. GOV'T CODE ANN., 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'T CODE ANN. 

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 . . . of. . . 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'T CODE ANN. $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'L CONDUCT 1.1 l(c)(2), reprinted 

in TEX. GOV'T CODE ANN., tit. 2, subtit. G app. A (Vernon 2005) (TEx. STATE BARR. 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'T CODE ANN. 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'L CONDUCT, 

reprinted in TEX. GOV'T CODE ANN., tit. 2, subtit. G app. A (Vernon 2005 & Supp. 2006) (TEx. 

STATE BAR R. 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 Te~as.~ 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'T CODE ANN. 5 8 1.07 1 (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'T CODE ANN., 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'T CODE ANN. 5 5 8 1.09 1 (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 query5 thus 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'T CODEANN. 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'T CODE Am. 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 CODE ANN. § 572.054 

(Vernon 2004); see also TEX. DISCIPLINARY R. PROF'L CONDUCT 1.1 l(b), reprinted in TEX. GOV'T CODE Am., tit. 2, 

subtit. G app. A (Vernon 2005) (TEx. STATE BAR R. art. X, 5 9). 
The Honorable Craig Watkins - Page 4 (GA-0557) 

SUMMARY 

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 ~eM1 of Texas 

KENT C. SULLIVAN 

First Assistant Attorney General 

NANCY S. FULLER 

Chair, Opinion Committee 

Charlotte M. Harper 

Assistant Attorney General, Opinion Committee