ATTORNEY GENERAL OF TEXAS



### The Honorable Jo Anne Bernal EI Paso County Attorney 500 East San Antonio, Room 503 El Paso, Texas 79901

Dear Ms. Bernal: GREG 

### ABBOTT

November 19, 2010

Opinion No. GA-0817
Re: Whether the EI Paso County Attorney may provide legal advice and representation to the EI Paso County Ethics Commission (RQ-0847-GA)

Chapter 161 of the Local Government Code authorizes a counti to create a county ethics commission. TEX. Loc. GOy'T CODE ANN. § 

### 161.051(a) (West Supp. 2010). You tell us that the EI Paso County Commissioners Court has created the EI Paso County Ethics Commission (the "Commission,,).2 At the request of the Commission, you ask several questions about the Commission and the EI Paso County Attorney's relationship to the Commission. Letter Briefat I. We first address whether "legal representation of the Commission fall[s] within the scope of the EI Paso County Attorney's constitutional and statutory duty to provide legal representation to county entities and officials[.]" [d. 

### at 1-2.3 Chapter 161 expressly provides that "[t]he county attorney, or district attorney, or criminal district attorney, as appropriate, with the duty to represent the county in civil matters shall represent the commission in alllegal matters." TEX. Loc. GOy'T

lChapter 161 applies only to

### EI Paso County. See 

### TEx. Loc. GOV'T CODEANN. § 161.001 (West Supp.20l0) (applying to a county of 650,000 or more on the international border and that had an ethics board before September 1, 2009). A law applying to one county based on a population classification violates article III, section 56, ofthe Texas Constitutioniftheclassificationis notreasonably related to the objecttobe accomplished. Smith v. Decker, 312S.W.2d 632,634-36 (Tex. 1958). Becauseyour request does not squarely embrace this issue, we will not attempt to resolve it.
2Letter Brief from Honorable Jo Anne Bernal, at 2 (attached to Request Letter) (available at http://www.texasattorneygeneral.gov).
3y OUffirst question is whether the Commissionis a "countyentity," Id. at 1. Wehave found no legal authority directly addressing your question. However, we note that the Commission is a "county" commission created by order of the county commissioners court or the electors of a county; governed by members appointed by several county officials, inter alia; grantedjurisdiction over countypublic servants; and dissolved by a process initiated bythepetition ofcounty residents. 

### TEx. Loc. GOV'T CODE ANN. §§ 161.002-.304 (WestSupp. 2010). Cf Tex. Att'y Gen. Op. No. GA-0074 (2003) at 2 (opining that a county bail bond board was a "county entity" because county bail bond boards are created in each county and function in that county; a significant portion of the board members are ex-officio county officers or their designees; and court opinions had described the boards as performing county governmental functions).The Honorable Jo Anne Bernal

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CODEANN. 

### § 161.061 (West Supp. 2010). The word "shall" generallyimposes a duty. TEX. GOV'T CODEANN. § 311.016 (West 2005). Thecounty attorneyrepresents the county in civil matters. 

### Id. § 45.171(a) (West 2004). Therefore, section 161.061 generally requires the county attorney to represent the Commission.
Younextaskwhetherthe county attorneyhas "aconflict ofinterestin providinglegal advice andrepresentation to the Commission[.]" LetterBriefat 1, 3. 

### In answering your question, wenote that the state Committee on Professional Ethics has a duty to "express its opinion on the propriety ofprofessional conduct other than on a question pending before a court ofthis state" at the request of a member ofthe bar or on its own motion. TEX. GOV'T CODE ANN. 

### § 81.092(a) (West 2005). Thus, a question about whether you have a conflict ofinterest as an attorney should be directed to the CommitteeonProfessionalEthics. 

### See Tex. Att'yGen. Op. No. GA-0719 (2009) at 3 (declining to opine on an action governedbytheTexas DisciplinaryRules ofProfessional Conduct). We also note thatthe Commission "shall adopt, publish, andenforce an ethics code governing countypublic servants" that applies, inter alia, to the county attorney. TEX. 

### Loc. GOV'T CODE ANN. 

### § 161.101(a) (West Supp. 2010). 

### See also id. § 161.002(7), (8)(A) (providing that the term "county public servant" includes "a county officer" and that the term "county officer" is defined to mean, among others, a "county attorney"). The Commission has not adopted the ethics code at this time.4 

### In drafting any portion ofthe ethics code that may relate to attorney conduct, the Commission should considertheissues you raise in the request letter, keeping in mindtherequirements ofrelevant state law and the Texas Disciplinary Rules ofProfessional Conduct. 

### See Silverman v. 

### State Barof Tex., 405 F.2d 410,412 (5th Cir. 1968) (finding thatthe Disciplinary Rules are quasi-statutory and have the same force as the Texas Rules ofCivil Procedure). Finally, you ask whether the Commission must have the county attorney's consent to hire outside legal counsel "to provide legal advice to the Commission." Letter Briefat 1,4. The Local GovernmentCode vests the county attorney with the responsibility to represent the Commission in court. TEX. 

### Loc. GOV'T CODE ANN. 

### § 161.061 (West SUpp. 2010). Absent a valid ethical or other legal bar, the county attorney must do so. Whether the county attorney not only represents the Commission, but also advises it, mightbe a somewhat different question. Although we havefound nolegal authority that directly answers yourquestion, section 161.061 is quitebroadin assigning the county attorney authority to represent the Commission "in all legal matters." 

### Id. 5 Moreover, this

'See El Paso County Ethics Commission, Regular Meeting Agenda (Oct. 14,2010) item 6 (discussing the developmentofacodeofethics), availableathttp://www.epcounty.orglethicsComlmeetings/2010-II-l8/agenda.pdf(last visited Nov. 17,2010). 'The county attorney's duty under Local Government Code section 161.061 to represent the Commission "in all legal matters" appears to be different from the "the duty

... to represent the

... County in all civil matters" under Government Code section 45.171. Compare TEx. Loc. GOy'T CODE ANN. § 161.061 (West Supp. 2010), with TEx. GOy'TCODE ANN. § 45.171(a) (West 2004). See also In re M.N., 262 S.W.3d 799, 802 (Tex. 2008) (presuming that the Legislature purposely includes and excludes words in statutes). The phrase "all legal matters" does not refer to criminal matters. See TEx. GOy'TCODEANN. §§ 43. 120(b)-(c) (West Supp. 2010) (providing thatthe district attorney represents the statein all criminal cases), 45.171(b) (West2004) (grantingthe county attorney the duty to prosecute only (continued

...)

### The Honorable Jo Anne Bernal

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office has opinedthat the El Paso County Bail Bond Board, which, like the Commission, performs county governmental functions and is composed largely of county officials or their designees, could not hire outside legal counsel without the county attorney's consent. Tex. Att'y Gen. Op. No. GA-0074 (2003) at 2-3. Thatopinionreasoned that Government Code sections 41.007 and 45.171, statutes which are, ifanything, less expansive in their assignment ofauthority to the county attorney than is section 161.061, imposed a duty onthe county attorneyto advise andrepresent the BailBond Board and that the county attorney could not be involuntarily divested ofthat duty. [d. at 2 (citing Government Code sections 41.007 and45.171, whichrequire the county attorney to provide written legal advice to a county official about the official's duties on request and to represent the county in all civil matters, respectively). 

### See also id. ("There is a functioning El Paso county attorney who cannot be divested ofhis duties against his will.").
Ithasbeen suggestedthattheCommissionmayhire outsidecounselunderLocal Government Code section 161.101(d),whichprovides that a "commission shall be assigned staffby the county and provided access to county resources to assist in its duties." Letter Briefat 4; TEX. 

### Loc. GOV'T CODEANN. § 

### 161.101(d) (WestSupp. 2010). However, section 161.101(d) is, by itself, insufficient to modify the county attorney's duty under section 161.061. 

### See Tex. Att'y Gen. Op. No. GA-0074 (2003) at 3 (opiningthatEI Paso County Bail BondBoard's authorityto "'employpersons necessary to assist in board functions,' is not sufficient to" prevent the county attorney from advising and representing the Bail Bond Board (quoting section 1704.101(8) ofthe Occupations Code)). To the extent that the facts and laws at issue in GA-0074 are similar to those at issue in your question, GA-0074 indicates thatthecounty attorneyhas a dutyto advisetheCommission. Therefore,itcould be an improperusurpation ofthe county attorney's authority under section 161.061 ifoutside legal counsel were hired solely pursuant to section 161.101(d) to represent the Commission over the objection ofthe county attorney.

'(

...continued) health and environmental misdemeanors}. Because the county attorney's duty to represent the Commission in "all legal matters" is different from the duty to represent the county in "civil" and "criminal" matters, the duty under section 16l.06) could include providing legal advice that does not involve representation in court.

### The Honorable Jo Anne Bernal

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### SUMMARY
Pursuant to section 161.061 oftheTexas Local Government Code, the county attorney of El Paso County is required to represent the El Paso County Ethics Commission in all legal matters. It 

### could be an improper usurpation ofthe county attorney's authority under section 161.061 ifoutside legal counsel were hired solely pursuantto section 161. 101 (d) of the Local Government Code to represent the Commission over the objection ofthe county attorney. Requests for opinions regarding the propriety of a county attorney's representation under the Texas Disciplinary Rules of Professional ConductshouldbeaddressedtotheTexas Committeeon Professional Ethics. Questions about actions ofthe county attorney under the County Ethics Code are for the Commission, in the first instance.

DANIEL T. HODGE First Assistant Attorney General DAVID J. SCHENCK Deputy Attorney General for Legal Counsel
NANCY S. FULLER Chair, Opinion Committee
Jason Boatright Very truly yours,

Assistant Attorney General, Opinion Committee