April 14,1999

The Honorable Raymie Kana Colorado County Auditor Courthouse, Third Floor Columbus, Texas 78934 Opinion No. X-0034 Re: Authority ofcounty attorney toprovide legal services to commissioners court, and related questions 014-1137)
Dear Ms. Kana:
You have asked this office whether a county attorney who is covered by the terms of the Professional Prosecutors Act, chapter 46 of the Government Code, may perform for the county ancillary legal services which do not form part of his duties “without charge to the county,” and whether such acounty attorney “can legally enter into an agreement with amunicipality toprovide legal advice, opinion, and consultation services for a fee regarding the arrest, docketing, and disposition ofcity and State law offenders prosecuted through the municipal court.” We begin with a brief review ofthe statutes applicable to the Colorado County Attorney. Section 45.145 ofthe Government Codeprovides thatthe Colorado County Attorney “shall perform the duties imposed on and have the powers conferred on district attorneys by general law.” TEX.GOV’T CODEANN.445.145(a) (Vernon Supp. 1999). Asthis office stated in Letter Opinion No. 98-26, Generally, the Colorado County Attorney, like adistrict attorney, isrequired

to “represent the State in all criminal cases in the district courts of [the county] and in appeals therefrom.

. .” The Colorado County Attorney also is required to represent the state in examining trials and habeas corpus proceedings. In addition, the Colorado County Attorney has various duties, found in scattered statutes, such as providing legal advice to appropriate officials; enforcing certain licensing acts; and challenging public nuisances.
Tex. Att’y Gen. LO-98-26, at2 (footnotes omitted). Finally, the Colorado County Attorney isone of the county attorneys made subject to the Professional Prosecutors Act by Government Code section 46.002(3). As to your first question, we conclude that while a county cannot contract for ancillary services with acounty attorney covered by the Professional Prosecutors Act in his private capacity precisely because such acounty attorney may not engage inprivate practice, wedonot believe thatThe Honorable Raymie Kana - Page 2 (X-0034)

the law would prevent him from providing such services gratis on avoluntary basis. The decision whether to offer to provide such services on that basis would, of course, belong to the county attorney. As to your second question, we know ofno basis upon which the attorney would have the authority to enter into such acontract asyou describe. Ifitbe argued that he is entering into such contracts inhis private capacity, then he isbarred from doing soby chapter 46. If, on the contrary, the contracts are entered into in his official capacity, he has no authority to enter into them. The general authority ofacounty toenterinto contracts isvested inthe commissioners court. The county attorney is without authority to enter into such agreements. As we understand the background for your questions, the Colorado County Attorney has taken the view that he is debarred fromperforming legal services tothe county beyond those which are made his duty by statute. Apparently he reads a letter opinion issued by this office, Letter Opinion No. 98-26, asmandating this result. Inthat opinion, weconcluded that the county attorney could not contract with the commissioners court to provide courthouse security.
We do not agree with the rather expansive reading which the County Attorney gives Letter Opinion No. 98-26. In our view, the provision of security services, which the opinion declared beyond the authority of the county attorney and outside the province of his investigator, is distinguishable fromthe ancillary legal services which the County Attorney assertshemay notnow perform. However, we do note that a particular problem arises with respect to the provision of ancillary legal services by a county attorney when, as in this case, the attorney is covered by the Professional Prosecutors Act. The standard treatise on county law, as well as certain attorney general opinions of this office, have generally asserted that, while the provision of some legal services to the county was beyond the duty ofthe county attorney, the commissioners court could retain the county attorney for such services as aprivate practitioner:

[A]s to the county as a legal entity, it is not the duty or responsibility of a local prosecutor to “represent the county in its general legal business or the conduct of ordinary civil actions.” The exception to this rule is the responsibility

. torender upon request legal advice and opinions to county officials. Numerous authorities have stated that a county commissioners court may employ in a private capacity the county or district attorney to represent the county inmatters forwhich he isnotrequired by lawtoprovide representation.
36DAVID B. BROOKS, COUNTYANDSPECIAL DISTRICT

LAW 921.14 (citing Hill Farm, Inc. v.Hill County, 425 S.W.2d 414,419 (Tex. Civ. App.-Waco 1968),affd, 436 S.W.2d 320 (Tex. 1969)); seealso Guynes v.Galveston County, 861S.W.2d 861,864 (Tex. 1993)(BecauseGalvestonCounty Criminal District Attorney did not have exclusive duty of civil representation for county,The Honorable Raymie Kana - Page 3 (JC-0034)

commissioners court could establish legal department for “wide-range of duties related to the county’scivilbusiness.“);Tex. Att’y Gen. Gp.Nos. JM-198 (1984),0-4301(1942), O-3656(1941), O-864 (1939), O-198 (1939). As Attorney General Opinion JM-198 noted inpassing, however, this traditional argument does not fit well with the provisions of the Professional Prosecutors Act. In that opinion, after affirming that the Victoria County Commissioners Court had the authority to contract with the Criminal District Attorney in his private capacity to represent the county in condemnation proceedings which were outside the scope of his official duties, this office noted “that effective September 1, 1983, the criminal district attorney in Victoria County became a “district attorney” within the meaning of the Professional Prosecutors Act, which provides that a district attorney governed bythe actmay not engage intheprivate practice oflaw.” Tex.Att’y Gen.Op.No.JM-198 at 3 (1984). The situation alluded toinAttorney General Opinion JM-198is squarely presented here. The Colorado County Attorney iscovered by the Professional Prosecutors Act. TEX.GOV'T CODEANN. 546.002(3) (Vernon Supp. 1999). As such he “may not engage in the private practice of law.

.” Id. $ 46.005(a). Accordingly, since he cannot engage in private practice, he cannot receive compensation from the county for providing legal services which do not form part ofhis statutory duties.
We do not, however, agree wholly with the County Attorney’s view that he is “now mandated to discontinue any extra work Ihave been doing, as Icannot contract with the County.” Letter from John Julian Moore, Colorado County Attorney, to Colorado County Commissioners Court 3 (Apr. 6, 1998) (on file with Opinion Committee). As wehave already pointed out, Letter Opinion No. 98-26 contains no such mandate. Nor, in our view, does the Professional Prosecutors Act necessarily forbid the County Attorney to provide such services. It does bar the county from contracting with him in his private capacity to perform them for remuneration. But it does not appear to us that the Act prevents him from voluntarily and gratuitously providing such services.
Inthewords ofthe standard treatise, “The legislature passed theProfessional Prosecutors Act in 1974 for the purpose ofimproving prosecution in the state by guaranteeing ahigher state salary to local prosecutors and imposing aduty onthe commissioners courttoprovide necessary funds for the operation ofthe various local prosecuting offices. Inreturn, the prosecutors subject to the Act areprohibited from engaging in any form ofprivate practice, or accepting referral fees.” BROOKS, sup-a, 921.44 (footnotes omitted). The principal concern ofthe prohibition on private practice is that the prosecutor not be spending his time attending to the business ofprivate clients rather than public business. Accordingly, we interpret “the private practice of law,” for the purposes of Government Code section 46.005(a) to mean the sale of legal services. In our view, the free and voluntary performance oflegal services forthecounty not required ofthe county attorney by statute would in no way frustrate the purpose of the Act. While a hypertechnical reading of section 46.005(a) inconjunction with the older attorney general opinions ofthis office oncontracts between the commissioners court andthe attorney inhis private capacity might lead one tothe rather severeThe Honorable Raymie Kana - Page 4 (X-0034)

conclusion that the attorney could under no circumstances provide services beyond his statutory duties, absent binding court precedent or the clear direction of the legislature we reject such a conclusion. Of course the County Attorney is not obliged to perform such services, and the commissioners court would have to depend upon his good graces in this regard. Butthe provisions of section 46.005(a) do not prevent the County Attorney from offering andproviding such services on a voluntary basis. While the Act does not prevent the County Attorney from offering ancillary legal services to the county gratis, it does prevent him from entering in his private capacity into the sort of consultation agreements with cities towhich your second question refers. Aswehave pointed out, acounty attorney covered by theProfessional Prosecutors Act in effect gives uphisprivate capacity and for that reason cannot contract with cities to represent them as aprivate lawyer.’ One ofthe consultation agreements with which you have furnished us acopy appears to be executed by the County Attorney as a private lawyer. However, under the terms of section 46.005(a), the County Attorney has no capacity to practice lawprivately. The other contract with which we have been furnished appears to have been executed by the County Attorney in his official capacity. However, the only general ability to contract for the county resides in the commissioners court. This principle has repeatedly been asserted by this office, generally in questions dealing with the ability of the sheriff to contract forjail operations. See,e.g., Tex. Att’y Gen. Op.No. DM-111 (1992); Tex. Att’y Gen.LO-98-072. AsLetter Opinion No. 98-072 put it, “Contracts binding on the county must in general be made by the commissioners court unless asheriff or other county official has specific authority to make them.” Tex. Att’y Gen. LO-98-072, at 2.
We find no specific authority forthe County Attorney toenter into consultation agreements with municipalities to provide legal advice to the municipal court either in the Colorado County Attorney’s statute, section 45.145 of the Government Code, the general provisions concerning county attorneys in chapter 45 ofthe Government Code, the general provisions concerning district attorneys in chapter 43 ofthe code, those concerning prosecuting attorneys in chapter 41, or in the provisions of the Professional Prosecutors Act. Absent such specific contractual authority, the County Attorney may not enter in his official capacity into such consultation agreements as are at issue here.*

‘We emphasize that this conclusion is limited to attorneys covered by the Professional Prosecutors Act, and therefore by section 46.005(a). This discussion does not implicate constitutional questions concerning dual offkeholding, or the common-law doctrine of incompatibility.

‘We do not address the authority of a county to enter into a contract for the provision of legal services with a municipality.The Honorable Raymie Kana - Page 5 (X-0034)

SUMMARY While the Professional Prosecutors Act, chapter 46 of the Government Code, prevents acounty attorney covered by it from entering into acontract with the county to provide it, forremuneration, with ancillary legal services not included among his statutory duties, it does not prevent the county attorney from voluntarily and gratuitously providing such services should he so choose.
Because prosecutors covered bythe Act give uptheir capacity topractice law privately, the Act does prevent a county attorney covered by it from entering in his private capacity into a consultation agreement with a municipality to provide the municipal court with legal advice. Nor, absent specific statutory authority todo so,may the county attorney enter into such a contract in his official capacity.
Yo very truly 

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-“‘--I-- JOiiN CORNYN Attorney General ofTexas

ANDY TAYLOR First Assistant Attorney General CLARK KENT ERVIN Deputy Attorney General - General Counsel ELIZABETH ROBINSON Chair, Opinion Committee Prepared by James E. Tourtelott Assistant Attorney General