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 Brief at 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 CODE ANN. § 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, of the Texas 

Constitution if the classification is not reasonably related to the object to be accomplished. Smith v. Decker, 312 S.W.2d 

632,634-36 (Tex. 1958). Because your 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 OUf first question is whether the Commission is a "county entity," Id. at 1. We have 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; granted jurisdiction over county public servants; and dissolved by a process initiated by the petition 

of county 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 - Page 2 (GA-0817) 

CODE ANN. § 161.061 (West Supp. 2010). The word "shall" generally imposes a duty. TEX. GOV'T 

CODE ANN. § 311.016 (West 2005). The county attorney represents the county in civil matters. Id. 

§ 45.171(a) (West 2004). Therefore, section 161.061 generally requires the county attorney to 

represent the Commission. 

You next ask whether the county attorney has "a conflict of interest in providing legal advice 

and representation to the Commission[.]" Letter Brief at 1, 3. In answering your question, we note 

that the state Committee on Professional Ethics has a duty to "express its opinion on the propriety 

of professional conduct other than on a question pending before a court of this state" at the request 

of a member of the 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 of interest as an attorney should be directed to 

the Committee on Professional Ethics. See Tex. Att'y Gen. Op. No. GA-0719 (2009) at 3 (declining 

to opine on an action governed by the Texas Disciplinary Rules of Professional Conduct). We also 

note that the Commission "shall adopt, publish, and enforce an ethics code governing county public 

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 of the ethics code that may relate to attorney conduct, the Commission should 

consider the issues you raise in the request letter, keeping in mind the requirements of relevant state 

law and the Texas Disciplinary Rules of Professional Conduct. See Silverman v. State Bar of Tex., 

405 F.2d 410,412 (5th Cir. 1968) (finding that the Disciplinary Rules are quasi-statutory and have 

the same force as the Texas Rules of Civil 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 Brief at 1,4. The Local 

Government Code 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, might be a somewhat different question. Although we have found 

no legal authority that directly answers your question, section 161.061 is quite broad in 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 

development of a code of ethics), available at http://www.epcounty.orglethicsComlmeetings/201 0-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'T CODE ANN. §§ 43. 120(b)-(c) (West Supp. 2010) (providing thatthe district attorney 

represents the state in all criminal cases), 45.171 (b) (West 2004) (granting the county attorney the duty to prosecute only 

(continued ... ) 
The Honorable Jo Anne Bernal - Page 3 (GA-0817) 

office has opined that 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. That opinion reasoned that Government Code sections 41.007 and 45.171, 

statutes which are, if anything, less expansive in their assignment of authority to the county attorney 

than is section 161.061, imposed a duty on the county attorney to advise and represent the Bail Bond 

Board and that the county attorney could not be involuntarily divested of that duty. [d. at 2 (citing 

Government Code sections 41.007 and 45.171, which require 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 of his duties against his will."). 

It has been suggested that the Commission may hire outside counsel under Local Government 

Code section 161.101(d),which provides that a "commission shall be assigned staff by the county 

and provided access to county resources to assist in its duties." Letter Brief at 4; TEX. Loc. GOV'T 

CODE ANN. § 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 (opining that EI Paso County Bail Bond Board's authority to "'employ persons 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) of the 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 that the county attorney has a duty to advise the Commission. Therefore, it could 

be an improper usurpation of the county attorney's authority under section 161.061 if outside 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 - Page 4 (GA-0817) 

SUMMARY 

Pursuant to section 161.061 ofthe Texas 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 of the county attorney's authority under 

section 161.061 if outside legal counsel were hired solely pursuant to 

section 161. 101 (d) of the Local Government Code to represent the 

Commission over the objection of the county attorney. 

Requests for opinions regarding the propriety of a county 

attorney's representation under the Texas Disciplinary Rules of 

Professional Conduct should be addressed to the Texas Committee on 

Professional Ethics. Questions about actions of the 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