OFFICE OF THE ATTORNEY GENERAL . STATE OF TEXAS 

JOHN CORNYN 

May 23,200l 

The Honorable Chris Taylor 

Tom Green County Attorney 

112 West Beauregard 

San Angelo, Texas 76903 

Opinion No. JC-0380 

Re: Whether a district attorney subject to the 

Professional Prosecutors Act may serve as a legal 

officer in the Air Force Reserve and related 

questions (RQ-0326-JC) 

Dear Mr. Taylor: 

Your predecessor, Mr. Thomas M. Goff, asked this office whether service as a legal officer 

in the United States Air Force Reserve constitutes the “private practice of law” for purposes of the 

Professional Prosecutors Act (the “Act”), chapter 46 of the Government Code, which prohibits 

certain prosecutors from engaging in the “private practice of law.“’ See TEX. GOV’T CODE ANN. 

$5 46.002(l), .005(a) (V emon Supp. 2001). He also asked about the appropriate remedy, should we 

conclude that service as a legal officer in the reserves violates the Act. See Request Letter, note 1, 

at 2. Based on the fundamental differences between military and civilian attorneys and strong state 

policy encouraging reserve membership in the armed forces, we do not believe that service as a 

reserve military legal officer constitutes the private practice of law in the context of the Professional 

Prosecutors Act. 

This inquiry concerns the District Attorney serving Tom Green County, who is also a legal 

officer in the United States Air Force Reserve. See Request Letter, note 1, at 1. The District 

Attorney of Tom Green County is subject to the Professional Prosecutors Act, chapter 46 of the 

Government Code. See TEX. GOV’T CODE ANN. 8 46.002(l) (Vernon Supp. 2001). 

The Professional Prosecutors Act prohibits district attorneys who are subject to the Act from 

engaging in the private practice of law. See id. 8 46.005(a); see also Tex. Att’y Gen. Qp. No. 

JC-0034 (1999) at 4 (noting that prosecutor subject to Act may not enter contract with a 

municipality). The primary objective of the prohibition on the private practice of law is to prevent 

prosecutors from spending their time “attending to the business of private clients rather than public 

business.” Tex. Att’y Gen. Op. No. JC-0034 (1999) at 3. In the furtherance of this objective, the 

Act regulates the compensation of state prosecutors. See TEX. GOV’T CODE ANN. 8 46.003 (Vernon 

Supp. 2001). District attorneys subject to the Act receive compensation equal to that provided to 

‘See Letter from Honorable Thomas M. Goff, Tom Green County Attorney, to Honorable John Comyn, Texas 

Attorney General, at 2 (Dec. 8,200O) (on file with Opinion Committee) [hereinafter Request Letter]. 
The Honorable Chris Taylor - Page 2 (JC-0380) 

a district judge. See id. 8 46.003 (providing compensation to state prosecutors equal to that of a 

district judge under the General Appropriations Act). 

The Act fails to define the “private practice of law.” Texas case law does not address 

whether service as a military legal officer constitutes the private practice of law. In our opinion, a 

person who is a reservist in the armed forces and who serves as a legal officer thereof, does not 

thereby engage in the private practice of law. Rather, he is an officer of the armed forces 

“designated to perform legal duties for a command.” 10 U.S.C. 8 801(8), (12) (1994). 

Texas has a strong state policy to accommodate its state employees who serve in the reserves 

of the armed forces. For example, a state employee or officer who serves as a reserve member of 

the armed forces is entitled to take a leave of absence to perform his or her duties. See TEX. GOV’T 

CODE ANN. 8 431.005(a) (Vernon 1998); id. 9 658.008 (Vernon Supp. 2001). In fact, employees 

who leave public employment to perform reserve duty are entitled to re-employment with the state. 

See id. 8 613.002(a) (Vernon 1994); id. 4 853.501(a)(l). 

Reserve service as a legal officer in the armed forces does not constitute the “private” 

practice of law. Moreover, it does not constitute the practice of law. In In re Babcock, 387 P.2d 694 

(Alaska 1963) the Alaska Supreme Court held that service as a military legal officer does not 

constitute the practice of law. See Babcock, 387 P.2d at 698. Comparing the clientele of civilian 

and military attorneys, the court reasoned that unlike a civilian attorney, a military attorney is 

assigned legal work by the Judge Advocate General and does not possess the freedom to select 

clients or to represent a client in a matter between citizens. See id. at 697. The court noted that 

various definitions of the “practice of law” reference a business or profession and while a military 

attorney is assigned work that is legal in nature, the attorney’s “business or profession while in the 

Armed Forces . . . is that of being [a] soldier . . . in the service of his country.” Id. at 697-98. 

Accordingly, we think that a Texas court, in light of the purposes of the Professional Prosecutors 

Act, and state policy encouraging reserve service, would follow the rationale in Babcock and hold 

that a military legal officer is not engaged in the private practice of law. Because we do not believe 

that a military legal officer is engaged in the private practice of law, we do not address your 

remaining questions, which assume that service as a legal officer in the United States Air Force 

Reserve violates the Professional Prosecutors Act. 
The Honorable Chris Taylor - Page 3 (JC-0380) 

SUMMARY 

Service as a legal officer in the United States Air Force 

Reserve does not violate the Professional Prosecutors Act because it 

is not the private practice of law. 

Attorney General of Texas 

ANDY TAYLOR 

First Assistant Attorney General 

SUSAN D. GUSKY 

Chair, Opinion Committee 

Polly McCann Pruneda 

Assistant Attorney General - Opinion Committee