ATTORNEY GENERAL OF TEXAS GREG ABBOTT

June 1,2009

The Honorable Armando 

### R. Villalobos Opinion No. GA-0716 Cameron County District and County Attorney Cameron County Courthouse Re: Whether an assistant county or assistant district 974 East Harrison Street attorney may lawfully and ethically practice as a Brownsville, Texas 78520 criminal defense attorney in federal court and inthe state courts ofa neighboring county (RQ-0754-GA) Dear Mr. Villalobos: You ask whether an assistant county or assistant district attorney may lawfully and ethically practice as a criminal defense attorney in federal court and in the state courts of a neighboring county.! A provisionofthe Code ofCriminal Procedure provides inrelevantpartthat "[ d]istrict and county attorneys shall notbe ofcounsel adversely to the State in any case, in any court." 

### TEx. CODE CRIM. PROC. ANN. art. 2.08 (Vernon 2005). Section 41.102 ofthe Government Code permits a "prosecuting attorney" to "employ
. . . assistant prosecuting attorneys." 

### TEx. GOV'T CODE ANN. 

### § 41.102(a) (Vernon Supp. 2008). A "prosecuting attorney" is defined as "a county attorney, district attorney, or criminal district attorney." 

### Id § 41.101 (Vernon 2004). An "assistant prosecuting attorney may perform all duties imposed by law onthe prosecuting attorney," and the qualifications required ofan assistant county attorney "are the same as for the county attorney who appoints him." 

### Id §§ 41. 103(b), 45.002(a). 

### Itdoes not necessarily follow, however, that an assistantprosecuting attorney is subjectto the same statutory disqualifications as an actual county, district, or criminal district attorney. In a prior opinion, we construed article 2.08 ofthe Code ofCriminal Procedure to meanthat that statute's disqualification does notapply to anindividual appointed to serve as a county attorney pro tern under article 2.07. Tex. Att'y Gen. Op. No. GA-0241 (2004) at 4. That opinion noted that "[a ]lthoughthe Legislature couldhave written article 2.08 to also applyto an attorney appointedpro tern, it did not do so. We may 'add words into a statutory provision only when necessary to give effect to clearlegislative intent.,,, Id (citingFitzgeraldv. Adv. Spine Fixation Sys., Inc., 996 S.W.2d 864,867 (Tex. 1999». Likewise, the Legislature couldhave written article 2.08 to applyto assistant county and assistant district attorneys, butitdid not do so. As a result, we conclude that article 2.08 lRequest Letter (available at http://www.texasattomeygeneral.gov)The Honorable Armando R. Villalobos'

- Page 2 (GA-0716)

does not prohibit an assistant county or assistant district attorney from practicing as a criminal defense attorney in federal court or in the state courts ofa neighboring county. On the other hand, section 46.005 ofthe Government Code prohibits a "countyprosecutor" andany assistant of aprosecutor from engaging in the "private practice oflaw" if, "from all state and county funds received, the county prosecutor or assistant receives a salary that is equal to or more than 80 percent ofthe benchmark salary." 

### TEx. GOV'T CODE ANN. 

### § 46.005(a), (c) (Vernon Supp. 2008). The term "county prosecutor" applies to a "constitutional county attorney who does nothave general felonyjurisdictionand whois not a stateprosecutor." 

### Id §46.001(1).2 Thus,under the limited circumstances ofsection 46.005 ofthe Government Code, an assistant county attorney is statutorily barred from simultaneously practicing as a criminal defense attorney in federal court or in the state courts ofa neighboring county. With regard to ethical considerations, Rules 1.06 and 1.10 ofthe Texas Disciplinary Rules ofProfessional Conductprovide some cautionarywarnings. A commentto Rule 1.06(b),the general rule for conflictofinterest, warns that "[l]oyaltyto a client is impairednotonlybytherepresentation of opposing parties
... but also in any situation when a lawyer may not be able to consider, recommend or carry out an appropriate course ofaction for one client because ofthe lawyer's own interests or responsibilities to others." 

### TEx. DISCIPLINARY R. PROF'L CONDUCT 1.06 cmt. 4, reprinted in 

### TEx. GOV'TCODEANN. tit. 2, subtit. G app. A (Vernon 2005) 

### (TEx. STATE BARR. art. X, 

### § 9). See State Bar Ethics Comm. Op. No. 419 (1984) (construing prior rule regarding county attorney's conflict ofinterest). A comment to Rule 1.10, which limits successive government and private employment, declares that "[t]his Rule prevents a lawyer from exploiting public office for the advantage ofa private client." 

### Id 1.10 cmt. 1. Inquiries regarding questions ofprofessional conductfor attorneys shouldbe addressedto the Committee onProfessional Ethics. See 

### TEx. GOV'T CODE ANN. 

### §§ 81.091-.092 (Vernon 2005).

2The section is also not applicable to an assistant county prosecutor under certain other narrow circumstances. See TEX. GOV'TCODEANN. § 46.005(c)-(e) (Vernon Supp. 2008).

### The Honorable Armando R. 

### Villalobos

- Page. 3 (GA-0716)



### SUMMARY Article 2.08 of the Code of Criminal Procedure does not prohibit an assistant county or assistant district attorney from practicing as a criminal defense attorney in federal court or in the state courts of a neighboring county, although, under certain circumstances, section 46.005 of the Government Code bars such practice by an assistant county attorney. Rules 1.06 and 1.10 ofthe TexasDisciplinaryRules ofProfessional Conductcautionagainstany such representation ofa private client, although such inquiries must ultimately be addressed to the Committee on Professional Ethics. Very truly yours,

ANDREW WEBER First Assistant Attorney General JONATHAN K. 

### FRELS Deputy Attorney General for Legal Counsel NANCY S. FULLER Chair, Opinion Committee Rick Gilpin Assistant Attorney General, Opinion Committee