## ATTORNEY GENERAL OF 

## TEXAS GREG ABBOTT

August 26,2004

The Honorable Tempie T. Francis Motley County Attorney Post Office Box 7 Matador, Texas 79244 Opinion No. GA-0241

Re: Whether an attorney appointed county attorney pro tern is disqualified from acting as criminal defense counsel in an adjoining county under Code ofCriminal Procedure article 2.08 (RQ-0190-GA)

Dear Ms. Francis:
Article 2.08 of the Code of Criminal Procedure states: “District and county attorneys shall not be of counsel adversely to the State in any case, in any court, nor shall they, after they cease to be such officers, be of counsel adversely to the State in any case in which they have been of counsel for the State.” TEX. CODEGRIM.PROC.ANN. art. 2.08 (Vernon 1977). You ask a number of questions, the essence ofwhich is whether the disqualification in article 2.08 applies to an attorney who has been appointed county attorney pro tern in individual cases, but who in fact performs all of the functions and duties of a constitutional county attorney.’

You state that an attorney appointed county attorney pro tern in an adjoining county represents criminal defendants in Motley County. Although you do not elaborate, you state that the facts are “exactly [as] described” in a letter submitted to this office by Barry L. Macha, Criminal District Attorney inWichita County? Consequently, for context, we will assume the facts asrelated in the Macha Letter.
The Macha Letter concerned Mr. Paul Scott, an attorney with a general civil and criminal defense practice inWilbarger County. Macha Letter, supra note 2, at 1. In 2002, the Baylor County Commissioners Court approached Mr. Scott about serving as the county’s attorney pro tern. 

### Id. Baylor County does not currently have an elected county attorney. 

### Id. Mr. Scott agreed to prosecute allmisdemeanors andjuvenile matters forBaylor County for $2600 per month, with the arrangement terminable atwill by either party. 

### Id. at 1,3. Itis unclear whether the Baylor County Commissioners

‘SeeLetter from Honorable Tempie T. Francis, Motley County Attorney, to Nancy Fuller, Chair, Opinion Committee, Office of the Attorney General (Mar. 4, 2004) (on file with Opinion Committee, also available of http://www.oag.state.tx.us) [hereinafter Request Letter]. 2SeeLetterfromHonorableBarryL. Macha,WichitaCounty CriminalDishictAttomey, toOpinionCommittee, Off& ofthe Attorney General (Feb. 24,2004) (on tile with Opinion Committee) [hereinafter Macha Letter].The Honorable Tempie T. Francis - Page 2 (GA-0241)

Court issued ageneral order appointing Scott as“Baylor County Attorney Pro Tern,” but in each case Scott tiled acopy of his oath and acourt order appointing Scott as county attorney pro tern for that
case. 

### Id. at 1. ARer entering into this arrangement with Baylor County, Scott continued his criminal defense practice in counties other than Baylor County? 

### Id at 4.
All of your questions revolve around two issues: (1) whether, as a matter of statutory construction, the disqualification inarticle 2.08 applies to anattorney who has been appointed county attorney pro tern in individual cases; and (2) whether the disqualification in article 2.08 applies to an attorney who does not hold the office of constitutional county attorney but who has assumed all of the functions and duties of that office. See Request Letter, supra note 1,at 1-2.


### I. Amlicable Law
The prohibition of article 2.08 expressly applies to “[d]istrict and county attorneys.” Under the Texas Constitution, the office of county attorney is a four-year elected position. TEX. CONST. art. V, §21. Ifthe position isvacant, the county commissioners court may appoint acounty attorney to serve until the next general election. 

### Id. Generally, county attorneys represent the state in district and inferior courts, but when the county is in a district having a district attorney, the county attorney’s duties are regulated by the Legislature. 

### Id. Baylor County is located in the 50th Judicial District, and is served by adistrict attorney. TEX.GOV’T CODEANN. $5 24.152(a), 43.129 (Vernon 2004). However, the Government Code provides for a Baylor County county attorney, who represents the state in misdemeanor cases. 

### Id. 545.112.
Some county attorneys areprohibited from engaging in aprivate civil orcriminal law practice by chapter 46 ofthe Government Code, the Professional Prosecutors Act. 

### Id. $546.001-,007. The act “applies to all 

### county prosecutors.” 

### Id. 546.002. A “countyprosecutor”under the act is defined
as “a constitutional county attorney who does not have general felony jurisdiction and who isnot a state prosecutor.” 

### Id. 546.001(l). A county attorney who receives a salary in excess of a statutory benchmark, and such a county attorney’s assistants, may not engage in the private practice of law. 

### Id. 546.005(a), (c). County attorneys who do not receive a salary in excess of the benchmark are not subject to the prohibition in the Professional Prosecutors Act against maintaining aprivate law practice. See Tex. Att’y Gen. Op. No. GA-0094 (2003) at 3. By statute, a court may appoint a substitute for an attorney for the state on a pro tern, or temporary, basis. Article 2.07 of the Code of Criminal Procedure provides for the terms of the appointment:

‘Thisofficereceived

arequest for anopinion onthis issuefrom Mr. Scott. SeeLetter from Paul Scott, Baylor County Attorney Pro Tern,,to Office ofthe Attorney General (Oct. 31,2003) (on file with Opinion Committee). This office closed the tile without an opinion because the issuewasbefore atrial court on amotion to disqualify Mr. Scott. This office generally does notrender opinions onmatters thatareinlitigationbefore thecourts. SeeTex. Att’yGen.Op. Nos. GA-0182 (2004) at 3,JM-803 (1987) at5. You have informed usthatMr. Scott withdrew ascounsel before the trial court rendered adecision, andthatthematter isno longer the subject ofpending litigation. Request Letter, supra note 1,at l-2.The Honorable Tempie T. Francis - Page 3 (GA-0241)

(a) Whenever an attorney for the state is disqualified to act in any case or proceeding, is absent from the county or district, or is otherwise unable toperform the duties ofhis office, orin any instance where there isno attorney for the state, thejudge ofthe court inwhich he represents the state may appoint any competent attomeyto perform the duties of the office during the absence or disqualification of the attorney for the state. (b) Except as otherwise provided by this subsection, if the appointed attorney is also an attorney for the state, the duties of the appointed office are additional duties of his present office, and he is not entitled to additional compensation. Nothing herein shall prevent a commissioners court of a county from contracting with another commissioners court to pay expenses and reimburse compensation paid by a county to an attorney for the state who is appointed to perform additional duties. (b-l) An attorney for the state who is not disqualified to act may request the court to permit him to recuse himself in a case for good cause and upon approval by the court is disqualified. (c) Ifthe appointed attorney isnot an attorney for the state, he is qualified to perform the duties of the office for the period of absence or disqualification of the attorney for the state on filing an oath with the clerk ofthe court. He shall receive compensation in the
same amount and manner as an attorney appointed to represent an indigent person. (d) In this article, “attorney for the state” means a county attorney, a district attorney, or acriminal district attorney. (e) In Subsections (b) and (c) ofthis article, “attorney for the state” includes an assistant attorney general. (f) In Subsection (a) of this article, “competent attorney’ includes an assistant attorney general. (g) An attorney appointed under Subsection (a) ofthis article to perform the duties of the office of an attorney for the state in a justice or municipal court may be paid a reasonable fee for performing those duties.

TEX. CODEGRIM.PROC.ANN. art. 2.07 (Vernon Supp. 2004).The Honorable Tempie T. Francis - Page 4 (GA-0241)

Under article 2.07(a), acourt may appoint an attorney to assume county attorney duties pro tern when the county attorney “[l] is disqualified to act in any case orproceeding, [2]is absent from the county or district, oris otherwise unable toperform the duties ofhis office, or [3] in any instance where there is no attorney for the state.” 

### Id. art. 2.07(a). The last circumstance, when there is no attorney for the state, does not authorize ajudicial court to till a vacancy by appointing an acting county attorney, because that would usurp the commissioners court’s constitutional appointment authority. 

### SeeMoorev. State, 119 SW. 858,859 (Tex. Crim. App. 1909); see 

### also Tex. Att’yGen. Op. No. JM-1246 (1990) at 3 (court may not appoint a district attorney pro tern to till avacancy in derogation of the governor’s constitutional appointment authority). An attorney pro tern assumes the duties and authority of the regular prosecuting attorney, “and in effect replaces the latter in performing germane functions of 

### officeforpurposes contemplated by the appointment.” State v. Rosenbaum, 852 S.W.2d 525, 529 (Tex. Crim. App. 1993) (Clinton, .I. concurring) (emphasis added); 

### see also Stephens v.State, 978 S.W.2d 728,731 (Tex. App.-Austin 1998, pet. ref d).


### II. Analvsis
Article 2.08 ofthe Code of Criminal Procedure prohibits a county attorney fTom appearing “ofcounsel adversely to the State in any case, in any court

.” TEX.CODEGRIM.PROC.ANN. art.2.08 (Vernon 1977). The stricture prevents a county attorney from representing a party adverse to the state in any court in the state. 

### Exparte Ramsey, 642 S.W.2d 483, 484 (Tex. Crim. App. 1982) (article 2.08 would preclude a county attorney t?om appearing in a court of another county to challenge a contempt order). Representing a criminal defendant constitutes being “of counsel adversely to the State.” 

### Id. (stating as a general rule that a county attorney’s “representation of a defendant in acriminal case may normally fall within the general provisions of Chapter Two”).

No reported court decision has determined whether article 2.08 would also apply to an attorney appointed as a county or district attorney pro tern. Although an attorney appointed county attorney pro tern performs the duties ofthat office, and for purposes ofthe appointment replaces the county attorney, the constitutional office ofcounty attorney and apro tern appointment under article 2.07 of the Code of Criminal Procedure are distinct. See Tex. Att’y Gen. Op. No. GA-0005 (2002) at 3 (pro tern attorney appointed for specific case does not have authority to alter terms of local agreement on forfeited property). By its plain terms, article 2.08 disqualifies district and county attorneys, i.e., constitutional district and county attorneys, from acting as counsel adversely to the state in any court. Attorneys appointed pro tern to perform the duties of acounty or district attorney are not included. Although 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.” 

### Fitzgerald v.Advanced Spine Fixation Sys., Inc., 996 S.W.2d 864,867 (Tex. 1999). Moreover, we may consider the consequences of a particular construction and will presume afeasible result was intended. See TEX.GOV’T CODE ANN. 55 311.021(2)-(4), ,023 (Vernon 1998). If an attorney who accepts even one pro tern appointment for a single case cannot engage in criminal defense in any court in the state, then article 2.08 would effectively exclude the most qualified private attorneys ~those with an ongoing defense practice - from accepting any pro tern appointments. Consequently, we conclude that article 2.08 applies toThe Honorable Tempie T. Francis - Page 5 (GA-0241)

county attorneys under the constitution, but not to attorneys appointed to perform the duties of the office pro tern.
Under the constitution and the statutes, whether an appointed attorney is a constitutional county attorney (and therefore subject to article 2.08) depends on the source of the appointed attorney’s authority. Under article V, section 21, the county commissioners court has the authority to appoint a county attorney to till avacancy until the next general election. See TEX. CONST.art. V, §21. Neither the constitution nor statutes authorize acommissioners court to appoint a county attorney on an “at will” basis, Nor does a commissioners court have the authority to appoint a county attorney pro tern under article 2.07 ofthe Code of Criminal Procedure; that authority belongs to thejudicial courts. See TEX. CODECNM. PROC.ANN. art. 2.07(a) (Vernon Supp. 2004). The judicial court also would not have the authority to appoint an acting county attorney, but it would have the authority to appoint acounty attorney pro tern in individual cases, aswas apparently done
as described in the Macha Letter. See Tex. Att’y Gen. Op. No. JM-925 (1988) at6.4 Consequently, the attorney described in the Macha Letter would not be aconstitutional county attorney.
You have suggested that an attorney appointed county attorney pro tern who performs all duties of a constitutional county attorney should be considered a “de facto” constitutional county attorney and subject to the prohibition in article 2.08. Request Letter, 

### supra note 1, at 2. To illustrate your point you cite the circumstances described in the Macha Letter, which we agree are not consistent with either the office ofcounty attorney under article V, section 21ofthe constitution,
or with apro tern appointment under article 2.07. Under the constitution, a county attorney must either be elected or appointed to serve until the next general election. TEX. CONST.art. V, 821. On the other hand, an attorney pro tern must be compensated “in the same amount and manner as an attorney appointed to represent an indigent person,” not by amonthly or annual salary. See TEX. CODEGRIM.PROC.ANN. art. 2.07(c) (Vernon Supp. 2004).
The de facto offtcer doctrine has been used to preclude adefendant appealing a conviction from collaterally attaching the prosecutor’s authority to prosecute. See 

### Cook v.State, 176 S.W.2d 941,943 (Tex. Crim. App. 1944). However, no court has applied that doctrine to disqualification under article 2.08. To apply the doctrine here would require, as amatter of first impression, that we (1) construe article 2.08 as disqualifying “de facto” county attorneys and (2) formulate a standard for ascertaining whether apro tern appointee has become a“de facto” county attorney. We believe that a court would reject such an expanded construction of article 2.08, and instead determine whether a county attorney pro tern is disqualified from criminal representation by applying professional conflict of interest principles. See, e.g., TEX. DISCIPLINARYR. PROF’L CONDUCT 1.06(b)(2), 

### reprinted inTEX.GOV’TCODEANN., tit. 2, subtit. Gapp. A (Vernon 1998) (TEx. STATE BAR. R. art. X, 9 9) (requiring an attorney to determine whether representation of one client

“reasonably appears to be or become[s] adversely limited by the lawyer’s or law firm’s responsibilities to another client”). We note that although the Texas Supreme Court’s Professional

‘InAttorney

General Opinion JM-925, this officedetermined

that acounty attorney ofonecounty

serving as county attorney protern inanother

county pursuant toaninterlocal

agreement

had theduty tosignaninformation

that initiatesprosecution. Itisunnecessaryforustorevisitthatissuehere.The Honorable Tempie T. Francis - Page 6 (GA-0241)

Ethics Committee has extended the prohibition against practicing criminal law topartners and others associated with acounty or district attorney, ithas not done so on the basis of aconstruction ofthe language of article 2.08, but on the basis ofprofessional ethics rules and canons. See, e.g., Tex. Comm. on Prof 1Ethics, Gp. 539,65 TEX.B.J. 368 (2002), Op. 419,47 TEX.B.J. 1370 (1984), Gp. 345 (1968), Op. 318 (1966). Under the disciplinary rules, whether apro tern appointment conflicts with aparticular criminal representation would be determined under the circumstances. See Tex. Comm. on Prof 1Ethics, Gp. 345 (1968) (concluding that disqualification of a former assistant district attorney must be decided on circumstances ofthe particular case).The Honorable Tempie T. Francis - Page 7 (GA-0241)



### SUMMARY
Article 2.08 of the Code of Criminal Procedure does not disqualify an attorney appointed by acourt ascounty attorney pro tern from representing criminal defendants in an adjoining county.

BARRY R. MCBEE First Assistant Attorney General
DON R. WILLETT Deputy Attorney General for Legal Counsel
NANCY S. FULLER Chair, Opinion Committee
William A. Hill Assistant Attorney General, Opinion Committee