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 in the 

state courts of a 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 provision of the Code of Criminal Procedure provides in relevant part that "[ d]istrict and 

county attorneys shall not be of counsel adversely to the State in any case, in any court." TEx. CODE 

CRIM. PROC. ANN. art. 2.08 (Vernon 2005). 

Section 41.102 of the 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 on the prosecuting attorney," and the qualifications required of an assistant county 

attorney "are the same as for the county attorney who appoints him." Id §§ 41. 1 03 (b), 45.002(a). 

It does not necessarily follow, however, that an assistant prosecuting attorney is subject to the same 

statutory disqualifications as an actual county, district, or criminal district attorney. 

In a prior opinion, we construed article 2.08 of the Code of Criminal Procedure to mean that 

that statute's disqualification does not apply to an individual 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 ]lthough the Legislature could have written article 2.08 to also apply to an attorney appointed pro 

tern, it did not do so. We may 'add words into a statutory provision only when necessary to give 

effect to clear legislative intent. ,,, Id (citing Fitzgerald v. Adv. Spine Fixation Sys., Inc., 996 S. W.2d 

864,867 (Tex. 1999». Likewise, the Legislature could have written article 2.08 to apply to assistant 

county and assistant district attorneys, but it did 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 of a neighboring county. 

On the other hand, section 46.005 of the Government Code prohibits a "county prosecutor" 

and any assistant of a prosecutor from engaging in the "private practice of law" 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 of the 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 

not have general felony jurisdiction and who is not a state prosecutor." Id § 46.001(1).2 Thus, under 

the limited circumstances of section 46.005 of the 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 of a neighboring county. 

With regard to ethical considerations, Rules 1.06 and 1.10 of the Texas Disciplinary Rules 

of Professional Conduct provide some cautionary warnings. A comment to Rule 1.06(b), the general 

rule for conflict ofinterest, warns that "[l]oyalty to a client is impaired not only by the representation 

of opposing parties ... but also in any situation when a lawyer may not be able to consider, 

recommend or carry out an appropriate course of action for one client because of the 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 of interest). 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 of a private client." Id 1.10 cmt. 1. Inquiries regarding questions of professional 

conduct for attorneys should be addressed to the Committee on Professional 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 of the 

Texas Disciplinary Rules of Professional Conduct caution against any 

such representation of a 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