ATTORNEY GENERALOFTEXAS 

GREG ABBOTT 

December 4,2006 

The Honorable Vicki Patti110 

District Attorney 

25th Judicial District 

113 South River, Suite 205 

Seguin, Texas 7,s 155 

Opinion No. GA-0488 

Re: Whether a part-time deputy district clerk may 

be simultaneously employed by a private attorney 

(RQ-0485-GA) 

Dear Ms. Pattillo: 

You ask whether a conflict of interest exists when apart-time deputy district clerk also works 

part-time for a private attorney who files cases with the district clerk.] The individual is 

compensated in each position. See Request Letter, supra note 1, at 1. 

A deputy district clerk is appointed by the district clerk and must take the oath prescribed for 

state officers. See TEX. GOV’T CODE ANN. 5 51.309(a) (Vernon 2005). The district clerk must 

obtain a surety bond to cover a deputy clerk or clerks, and a deputy must be covered on the same 

conditions and in the same amount as the district clerk. See id. § 51.309(b). A deputy clerk 

“may perform in the name of the district clerk all official acts of the office of district clerk.” Id. 

§ 5 1.309(a). See also TEX. CODE CREU. PROC. ANN. art. 2.22 (Vernon 2005) (duties imposed upon 

a district clerk may be lawfully performed by his deputy). The district clerk collects the filing fees 

requiredbylaw. See TEX.GOV'TCODEANN.~~~~.~~~(~),.~~~(V~~~~~~OO~&SU~~.~OO~). His 

duties include maintaining records filed in the clerk’s office, recording the acts and proceedings of 

the court, entering judgments under the judge’s direction, and recording all executions issued and 

the returns on the executions. See id. 5 51.303 (Vemon~2005). The clerk may also take the 

depositions ofwitnesses. See TEX. CODE GRIM. PROC. ANN. art. 39.03 (Vernon 2005); TEX. GOV’T 

CODE ANN. 5 5 1.303(e)( 1) (Vernon 2005). As a general rule, a deputy district clerk “is authorized 

to perform any official ministerial act that may be done by his principal.” Gray v. State, 5 S.W.2d 

518, 519 (Tex. Crim. App. 1928); see also Carlock v. State, 139 S.W.3d 90, 92-93 (Tex. 

App.-Texarkana 2004, no pet.) (deputy district clerk testified in court to identify certified copy of 

prior conviction). 

You raise Texas Constitution article XVI, section 40, which prohibits any person from 

holding or exercising “more than one civil office of emolument.” TEX. CONST. art. XVI, 3 40; see 

‘Letter from Honorable Vicki Pattillo, District Attorney, 25th Judicial District, to Honorable Greg Abbott, 

Attorney General of Texas, at l-2 (May 11, 2006) ( on tile with the Opinion Committee, also available at 

http://www.oag.state.tx.us) [hereinafter Request Letter]. 
The Honorable Vicki Patti110 - Page 2 (GA-0488) 

also Pruitt v. Glen Rose Indep. Sch. Dist., 84 S.W.2d 1004, 1006 (Tex. 1935) (when the holder of 

one office of emolument accepts and qualifies for a second office of emolument, he automatically 

relinquishes the first office). For purposes of this constitutional provision, a “civil office” is a 

“public office.” See Tilley v. Rogers, 405 S.W.2d 220,224 (Tex. Civ. App.-Beaumont 1966, writ 

ref d n.r.e.); Tex. Att’y Gen. Op. Nos. GA-0365 (2005) at 3 n.7, GA-0214 (2004) at 2. A public 

officer is a person upon whom a “sovereign function of the government” has been conferred “to be 

exercised by him for the benetit ~of the public largely independent of the control of others.” Aldine 

Indep. Sch. Dist. v. Standley, 280 S.W.2d 578,583 (Tex. 1955), disapproved on other grounds by 

Nat7 Sur. Corp. v. Friendswood Indep. Sch. Dist., 433 S.W.2d 690,693-94 (Tex. 1968). 

A deputy district clerk is not a public officer. See Tex. Att’y Gen. Op. No. MW-415 (1981) 

at l-2. A deputy is appointed by the district clerk and “may perform in the name of the district clerk 

all official acts of the office of district clerk.” TEX. GOV’T CODE ANN. 5 5 1.309(a) (Vernon 2005). 

A deputy district clerk does not exercise a sovereign function of government in his own right and 

is not a civil officer within article XVI, section 40. Moreover, an employee of a private attorney is 

neither a public officer nor a public employee. See Tex. Att’y Gen. Op. No. JC-0033 (1,999) at 1. 

The individual in question does not hold a civil office of emolument either as deputy district clerk 

or as a private attorney’s employee. Article XVI, section 40 therefore does not prohibit one person 

from holding both positions. 

You also raise the common-law doctrine of incompatibility that prevents one person from 

holding two public offices with inconsistent or conflicting duties, from appointing himself to another 

public position, or from holding both an office and an employment subordinate to the office. See 

Ehlinger v. Clark, 8 S.W.2d 666,674 (Tex. 1928) (self-appointment); Thomas v. Abernathy County 

Line Indep. Sch. Dist., 290 S.W. 152,153 (Tex. Comm’n App. 1927, judgm’t adopted) (two public 

offices with conflicting duties); see generally Tex. Att’y Gen. LA-l 14 (1975) (office and 

employment subordinate to the office). As we concluded in addressing article XVI, section 40, 

neither position held by this individual is a public office. Nor is there an issue of self-appointment. 

The common-law doctrine of incompatibility therefore does not bar a deputy district clerk from 

working for a private attorney. 

However, this dual employment raises a possibility of conflicting interests that warrants 

further inquiry. In performing the duties of the district clerk’s office, a deputy district clerk will 

necessarily be in contact with local attorneys and their employees who, tile documents with the 

clerk’s office, and he could also be required to take a deposition in a local attorney’s case. As the 

employee of a local law firm, the deputy district clerk may perform services of the clerk’s office for 

his private law firm. Government Code section 82.064(a) provides that a district clerk “may not 

appear and plead as an attorney at law in any court of record in this state,” but no statute places 

comparable limits on a deputy clerk. TEX. GOV’T CODE ANN. 5 82.064(a) (Vernon 2005).’ We thus 

consider whether the Texas Disciplinary Rules OfProfessional Conduct (“the Rules”) have a bearing 

on the dual employment in this case. 

%‘hether Government Code section 82.064(a) should be amended to apply to deputy clerks is a matter for the 

legislature. See Pub. Lnd. Cmm’n Y. Gofer, 754 S.W.2d 121, 126 (Tex. 1988). 
The Honorable Vicki Patti110 - Page 3 (GA-048,s) 

In addressing the Rules, we first assume that the deputy clerk is an attorney. While we fmd 

no Rule directly addressing an attorney’s employment in a court clerk’s office, we note that Rule 

1.06, the general rule on conflict of interest, provides that “except to the extent permitted by 

paragraph (c), a lawyer shall not represent a person if the representation of that person” reasonably 

appears to be “limited by the lawyer’s responsibilities . ..toathirdperson.” TEX.DISCIPLINARY 

R. PROF'L CONDUCT 1.06(b), reprinted in TEX. GOV'T CODE ANN., tit. 2, subtit. G app. A (Vernon 

2005)(TEx. STATE BARR. art. X, § 9); see id 1.06(c) (attorney may represent a client if he 

“reasonably believes representation of each client till not be materially affected” and clients consent 

to representation after full disclosure of possible conflict). In considering his responsibilities to the 

district clerk’s office and his clients, an attorney should keep in mind the lawyer’s obligation to 

maintain the highest standards ofethical conduct. See id., (“Preamble: A Lawyer’s Responsibilities,” 

paragraph 1). 

Ifthe deputy district clerk is not an attorney, another rule is relevant to this matter. .Rule 5.03 

provides as follows: 

With respect to a nonlawyer employed or retained by or 

associated with a lawyer: 

(a) alawyer having direct supervisory authority over the 

nonlawyer shall make reasonable efforts to ensure that the person’s 

conduct is compatible with the professional obligations of the 

lawyer[.] 

Id. 5.03. 

The professional ethics committee of the Texas State Bar, established by Government Code 

section 81.091, “shall, either on its own initiative or when requested to do so by a member of the 

state bar, express its opinion on the propriety of professional conduct other than on a question 

pending before acourtofthis state.” TEX.GOV'T CODEANN. $5 81.091,.092(a)(Vemon2005). 

This committee is the appropriate body to consider the attorney’s responsibility under the Texas 

Disciplinary Rules of Professional Conduct in relation to his own service as a deputy district clerk 

or to an employee who serves in that position. 
The Honorable Vicki Patti110 - Page 4 (GA-0488) 

SUMMARY 

Article XVI, section 40 of the Texas Constitution, which 

prohibits one person from holding more than one civil office of 

emolument, does not bar an individual from serving as both a deputy 

district clerk and an employee of a private attorney who files cases 

with the district clerk. The common-law doctrine of incompatibility 

does not bar an individual from holding these two positions. The 

attorney’s responsibility under the Texas Disciplinary Rules of 

Professional Conduct in relation to his own service or his employee’s 

service as deputy district clerk is a question for the professional ethics 

committee of the Texas State Bar. 

RENT C. SULLIVAN 

First Assistant Attorney General 

ELLEN L. WITT 

Deputy Attorney General for Legal Counsel 

NANCY S. FULLER 

Chair, Opinion Committee 

Susan L. Garrison 

Assistant Attorney General, Opinion Committee