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 asalegal 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 alegal officer in the United States Air Force Reserve constitutes the “private practice oflaw” for purposes ofthe 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. $546.002(l), .005(a) (Vemon Supp. 2001). He also asked about the appropriate remedy, should we conclude that service as alegal officer in the reserves violates the Act. See Request Letter, note 1, at2. 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 oflaw inthe context ofthe Professional Prosecutors Act. This inquiry concerns the District Attorney serving Tom Green County, who is also alegal 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. 846.002(l) (Vernon Supp. 2001). The Professional Prosecutors Act prohibits district attorneys who are subject tothe 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 ofthe prohibition on the private practice oflaw istoprevent prosecutors from spending their time “attending to the business ofprivate clients rather than public business.” Tex. Att’y Gen. Op. No. JC-0034 (1999) at 3. In the furtherance ofthis objective, the Act regulates the compensation ofstate prosecutors. See TEX. GOV’T CODEANN.846.003 (Vernon Supp. 2001). District attorneys subject to the Act receive compensation equal to that provided to

‘SeeLetter from Honorable Thomas M. Goff, Tom Green County Attorney, toHonorable 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. 846.003 (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 amilitary legal officer constitutes the private practice of law. In our opinion, a person who is areservist 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 acommand.” 10U.S.C. 8 801(8), (12) (1994).
Texas has astrong state policy to accommodate its state employees who serve inthe reserves ofthe armed forces. For example, a state employee or officer who serves as areserve member of the armed forces is entitled to take aleave of absence to perform his orher duties. See TEX. GOV’T CODEANN. 8431.005(a) (Vernon 1998); id. 9 658.008 (Vernon Supp. 2001). In fact, employees who leave public employment toperform reserve duty are entitled tore-employment with the state. See id. 8613.002(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 oflaw. Moreover, itdoes not constitute the practice oflaw. InIn reBabcock, 387P.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 amatter between citizens. See id. at 697. The court noted that various definitions ofthe “practice of law” reference abusiness orprofession and while amilitary attorney is assigned work that is legal in nature, the attorney’s “business orprofession 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 ofthe purposes ofthe Professional Prosecutors Act, and state policy encouraging reserve service, would follow the rationale inBabcock and hold that amilitary legal officer isnot engaged inthe private practice oflaw. 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 isnot the private practice of law.

Attorney General ofTexas

ANDY TAYLOR First Assistant Attorney General SUSAN D. GUSKY Chair, Opinion Committee Polly McCann Pruneda Assistant Attorney General -Opinion Committee