Can a former Texas judge become a prosecutor in the same county where she was a judge?

TX AG Opinion GA-0557: Can a former judge prosecute in her old county?

Plain-English summary

A former Dallas County district judge, identified as Ms. Green, had presided over family law matters, including Child Protective Services cases where children are removed from a home, and while on the bench she appointed and paid the attorneys in those cases from the county's general fund. She left the bench at the end of 2006 and became an assistant district attorney for Dallas County, where she now prosecutes CPS cases and supervises other prosecutors who handle them. In some of those cases, the opposing lawyer had been appointed and paid by Ms. Green back when she was the judge. The Dallas County Criminal District Attorney asked the Attorney General whether this employment created an appearance of impropriety, a conflict of interest, or a violation of any law, and whether the screening steps his office had taken were enough.

The Attorney General answered the legal questions it could and explained why it could not reach the ethics questions. On dual office holding, the constitutional and common-law rules apply only when a person simultaneously holds two public offices. An assistant district attorney is an employee, not a public officeholder, and Ms. Green no longer serves as a judge, so there was no dual office holding problem.

On the conflict-of-interest statutes, chapter 572 of the Government Code sets standards of conduct for state officers and employees, but an assistant district attorney is not a state employee covered by chapter 572, and the constitutional conflict-of-interest provision for judges did not apply because Ms. Green was no longer a judge. So those provisions were not implicated either.

That left the questions about an appearance of impropriety or a conflict of interest under the Texas Disciplinary Rules of Professional Conduct, and whether the office's screening was sufficient. The Attorney General declined to answer those. Whether a lawyer's representation creates a prohibited conflict, and whether screening measures are adequate, are governed by the disciplinary rules and are decided in the first instance by the lawyer and by the disciplinary arm of the Supreme Court of Texas and the State Bar, with formal ethics opinions issued by the Committee on Professional Ethics. Those questions also turn on all the facts of the particular situation, which an attorney general opinion does not resolve. For the same reasons, the Attorney General could not evaluate whether the district attorney's screening of Ms. Green was enough.

Currency note

This opinion was issued in 2007. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

The Government Code provisions, the Texas Code of Judicial Conduct, and the Texas Disciplinary Rules of Professional Conduct cited here may have changed since 2007. Confirm current law and rules, and consult the State Bar, before relying on this analysis.

Who this opinion affected (as of 2007)

Former judges who become prosecutors or other government lawyers: The opinion told them that taking an assistant district attorney position in the county where they had been a judge did not, by itself, violate dual-office-holding or the cited constitutional and statutory conflict-of-interest rules, because the role is employment, not an office, and they are no longer judges.

District attorney offices: The opinion explained that whether the office's screening of a former judge satisfied the disciplinary rules was a fact question the Attorney General would not decide; the lawyer and the State Bar disciplinary system are the proper deciders.

The lawyer and the State Bar: The opinion identified them, along with the Committee on Professional Ethics, as the bodies responsible in the first instance for applying the Texas Disciplinary Rules of Professional Conduct to the situation.

Common questions

Did the former judge's new prosecutor job break any dual-office-holding law?
No. The Attorney General concluded the dual-office-holding rules were not implicated, because they require holding two offices at once, an assistant district attorney is an employee rather than an officeholder, and she no longer served as a judge.

Did it violate the conflict-of-interest statutes?
No. The opinion concluded chapter 572's standards of conduct apply to state employees, not to an assistant district attorney, and the constitutional conflict provision for judges did not apply because she was no longer a judge.

Did the Attorney General decide whether there was an appearance of impropriety or an ethics conflict?
No. The Attorney General declined to answer. Those questions arise under the Texas Disciplinary Rules of Professional Conduct and are decided in the first instance by the lawyer and by the disciplinary arm of the Supreme Court of Texas and the State Bar, and they turn on the specific facts, which an opinion cannot resolve.

Did the Attorney General approve the office's screening of the former judge?
No. The opinion said it could not evaluate the sufficiency of those efforts, for the same reasons; that determination belongs to the lawyer and the State Bar disciplinary system.

Background and statutory framework

The dual-office-holding prohibitions come from the constitutional ban on holding two civil offices of emolument and the common-law incompatibility doctrine, both of which require simultaneously holding two offices (Tex. Const. art. XVI, § 40; Thomas v. Abernathy County Line Indep. Sch. Dist., 290 S.W. 152 (Tex. Comm'n App. 1927, judgm't adopted); Tilley v. Rogers, 405 S.W.2d 220, 224 (Tex. Civ. App.-Beaumont 1966, writ ref'd n.r.e.)). An assistant district attorney is an employee, not a public officer (State ex rel. Hill v. Pirtle, 887 S.W.2d 921, 931 (Tex. Crim. App. 1994); Powell v. State, 898 S.W.2d 821, 825 (Tex. Crim. App. 1994)), and the former judge no longer held judicial office, so the prohibitions did not apply.

The conflict-of-interest statutes in chapter 572 set standards of conduct for state officers and employees, but an assistant district attorney is not a state employee as defined there, and the constitutional conflict provision for judges did not apply to a former judge (Tex. Gov't Code Ann. ch. 572 (Vernon 2004 & Supp. 2006), § 572.002(10), (11) (Vernon Supp. 2006); Tex. Const. art. V, § 11). The opinion noted it was not asked about, and did not consider, any issues from the judge's prior tenure or the successive-employment provisions (Tex. Gov't Code Ann. § 572.054 (Vernon 2004); Tex. Disciplinary R. Prof'l Conduct 1.11(b)).

Questions about a lawyer's appearance of impropriety or conflict in representing a client are governed by the Texas Disciplinary Rules of Professional Conduct, decided in the first instance by the lawyer and by the disciplinary arm of the Supreme Court of Texas and the State Bar, with formal opinions from the Committee on Professional Ethics (Tex. Disciplinary R. Prof'l Conduct 1.11(c)(2); Tex. Gov't Code Ann. §§ 81.011, 81.071, 81.091, 81.092(a) (Vernon 2005); State Bar of Tex. v. Gomez, 891 S.W.2d 243, 245 (Tex. 1994); Tex. Att'y Gen. Op. No. GA-0488 (2006) at 3). Because those questions require examining all the facts, they are not appropriate for an attorney general opinion (Tex. Att'y Gen. Op. No. GA-0087 (2003) at 1), so the Attorney General could resolve neither the appearance-of-impropriety and conflict questions nor the sufficiency of the office's screening. Questions about a judge's own appearance of impropriety, by contrast, are governed by the Code of Judicial Conduct and the State Commission on Judicial Conduct (Tex. Code Jud. Conduct, Canons 6A, 6F; Tex. Const. art. V, § 1-a(2), (6)(A), (8); Tex. Gov't Code Ann. §§ 33.001-.051 (Vernon 2004), 74.054(a)(3), 74.055(c), 82.064(a) (Vernon 2005)).

Citations

Constitution, statutes, and rules:

• Tex. Const. art. V, § 1-a(2), (6)(A), (8)
• Tex. Const. art. V, § 11
• Tex. Const. art. XVI, § 40
• Tex. Gov't Code Ann. ch. 572 (Vernon 2004 & Supp. 2006)
• Tex. Gov't Code Ann. § 572.002(10), (11) (Vernon Supp. 2006)
• Tex. Gov't Code Ann. § 572.054 (Vernon 2004)
• Tex. Gov't Code Ann. §§ 33.001-.051 (Vernon 2004)
• Tex. Gov't Code Ann. §§ 74.054(a)(3), 74.055(c) (Vernon 2005)
• Tex. Gov't Code Ann. § 82.064(a) (Vernon 2005)
• Tex. Gov't Code Ann. § 81.011 (Vernon 2005)
• Tex. Gov't Code Ann. § 81.071 (Vernon 2005)
• Tex. Gov't Code Ann. §§ 81.091, 81.092(a) (Vernon 2005)
• Tex. Code Jud. Conduct, Canons 6A, 6F
• Tex. Disciplinary R. Prof'l Conduct 1.11(b), (c)(2)

Cases:

• Thomas v. Abernathy County Line Indep. Sch. Dist., 290 S.W. 152 (Tex. Comm'n App. 1927, judgm't adopted)
• State ex rel. Hill v. Pirtle, 887 S.W.2d 921, 931 (Tex. Crim. App. 1994)
• Powell v. State, 898 S.W.2d 821, 825 (Tex. Crim. App. 1994)
• Tilley v. Rogers, 405 S.W.2d 220, 224 (Tex. Civ. App.-Beaumont 1966, writ ref'd n.r.e.)
• State Bar of Tex. v. Gomez, 891 S.W.2d 243, 245 (Tex. 1994)

Attorney General opinions referenced: GA-0488 (2006), GA-0087 (2003).

Source

• Landing page: https://www.texasattorneygeneral.gov/opinions/greg-abbott/ga-0557
• Original PDF: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/2007/ga0557.pdf

Original opinion text

Best-effort transcription from a scanned PDF. Minor errors may remain - the linked PDF is authoritative.

GREG ABBOTT

July 26, 2007

The Honorable Craig Watkins
Dallas County Criminal District Attorney
Frank Crowley Courts Building
133 North Industrial Boulevard, LB 19
Dallas, Texas 75207-4313

Opinion No. GA-0557

Re: Whether, under particular circumstances, a former district judge may be employed in the same county in which she sat as a judge (RQ-0565-GA)

Dear Mr. Watkins:

You ask about "an appearance of impropriety, a conflict of interest or a violation of any law" with respect to current employment of a former district judge.[1] You tell us that a former district judge, Ms. Green, served in a Dallas County District Court and heard family law matters, including cases that involve Child Protective Services ("CPS") removing a child from a home. See Request Letter, supra note 1, at 1. You inform us that while presiding over these CPS cases, Ms. Green "appointed and paid attorneys out of the general fund of Dallas County." Id. at 2. Ms. Green served as district judge until December 31, 2006,[2] and is currently employed as an assistant district attorney for Dallas County. See Request Letter, supra note 1, at 1. In that position, Ms. Green prosecutes CPS cases and also supervises attorneys who prosecute CPS cases. See id. at 2. In some of the cases currently being prosecuted by the district attorney's office, opposing counsel was appointed and paid out of county funds by order of then-presiding Ms. Green. See id.

You further inform us that your office has taken certain steps to avoid "the appearance of impropriety, a conflict of interest or a violation of any law." Id. You state that Ms. Green "will not handle any case filed" in the court in which she served, nor will Ms. Green "handle any case filed in another court that is related . . . to a case" filed in the court in which she formerly served. Id. Additionally, you tell us that the prosecutors under Ms. Green's supervision will not consult with her about those same cases or discuss the cases in her presence. See id. And you inform us you are "sending written notice to the parties on those cases" as required under the Texas Disciplinary Rules of Professional Conduct. Id. (citing TEX. DISCIPLINARY R. PROF'L CONDUCT 1.11(c)(2), reprinted in TEX. GOV'T CODE ANN., tit. 2, subtit. G app. A (Vernon 2005) (Tex. State Bar R. art. X, § 9)).

In addition to your primary question, you also inquire whether the steps you have taken to screen Ms. Green are sufficient and "[u]nder what circumstances [Ms. Green may] consult with [or] advise the other attorneys that she is currently supervising [about] cases filed in or related to" cases filed in Ms. Green's former court. Request Letter, supra note 1, at 2. You seek our opinion regarding various aspects of Ms. Green's ability to prosecute cases or supervise attorneys on future cases to be filed in her former court. See id.

We first note that Ms. Green's current employment does not implicate laws pertaining to dual office holding and conflicts of interest. The proscriptions against dual office holding that stem from the constitutional prohibition and the common-law doctrine of incompatibility are not applicable here. See TEX. CONST. art. XVI, § 40 (prohibiting individual from simultaneously holding more than one "civil office of emolument");[3] see also Thomas v. Abernathy County Line Indep. Sch. Dist., 290 S.W. 152 (Tex. Comm'n App. 1927, judgm't adopted) (discussing common-law incompatibility). For any relevant prohibition against dual office holding to arise, an individual must simultaneously hold two offices. An assistant district attorney does not hold a public office. See State ex rel. Hill v. Pirtle, 887 S.W.2d 921, 931 (Tex. Crim. App. 1994) (recognizing that an assistant district attorney is an employee, not a public officer); accord Powell v. State, 898 S.W.2d 821, 825 (Tex. Crim. App. 1994). And further, Ms. Green does not hold two offices because she no longer serves as judge. See supra, note 2. Accordingly, Ms. Green's current employment as an assistant district attorney does not violate laws governing dual office holding.

Similarly, constitutional and statutory provisions governing conflicts of interests are not implicated by Ms. Green's current employment. Chapter 572, Government Code, contains standards of conduct for state officers and employees. See TEX. GOV'T CODE ANN. ch. 572 (Vernon 2004 & Supp. 2006). An assistant district attorney, however, is not a state employee subject to chapter 572. See id. §§ 572.002(11) (Vernon Supp. 2006) (defining "state employee" to include individuals, not state officers, who are employed by a state agency), 572.002(10) (defining "state agency" to include departments, offices, or other agencies that have authority that is not limited to a geographical portion of the state); see also id. chs. 43 (Vernon 2004 & Supp. 2006) (defining judicial districts for district attorneys), 44 (defining county territory for criminal district attorneys). And because Ms. Green serves as an assistant district attorney rather than as a judge, the constitutional conflict of interest provision pertaining to judges is also not a bar. See TEX. CONST. art. V, § 11.

Questions involving a lawyer's appearance of impropriety or conflict of interest arising from the representation of a particular client are governed by the Texas Disciplinary Rules of Professional Conduct ("rules of professional conduct"). See generally TEX. DISCIPLINARY R. PROF'L CONDUCT, reprinted in TEX. GOV'T CODE ANN., tit. 2, subtit. G app. A (Vernon 2005 & Supp. 2006) (Tex. State Bar R. art. X, § 9). Violations of, or sufficiency of actions taken under, the rules of professional conduct are to be decided in the first instance by the lawyer, or by the disciplinary arm of the Supreme Court of Texas and the State Bar of Texas.[4] See id. Preamble ¶ 15 (Vernon 2005) (stating that rules are basis for lawyer's self-assessment, or for sanctioning a lawyer under the administration of a disciplinary authority); see also TEX. GOV'T CODE ANN. § 81.071 (Vernon 2005) ("Each attorney admitted to practice in this state . . . is subject to the disciplinary . . . jurisdiction of the supreme court and the Commission for Lawyer Discipline, a committee of the state bar."); TEX. R. DISCIPLINARY P. Preamble, reprinted in TEX. GOV'T CODE ANN., tit. 2, subtit. G app. A-1 (Vernon 2005 & Supp. 2006) (disciplinary rules of procedure stating that the "Supreme Court of Texas has the constitutional and statutory responsibility within the State for the lawyer discipline . . . system"). The issuance of opinions on the propriety of attorney behavior under the rules of professional conduct is a statutory function of the Committee on Professional Ethics, which consists of nine members of the Texas State Bar who are appointed by the Texas Supreme Court. See TEX. GOV'T CODE ANN. §§ 81.091 (Vernon 2005) (creating Committee on Professional Ethics), 81.092(a) (providing that the committee shall "express its opinion on the propriety of professional conduct"); see also Tex. Att'y Gen. Op. No. GA-0488 (2006) at 3 (stating the Committee on Professional Ethics is the "appropriate body to consider the attorney's responsibility under the Texas Disciplinary Rules of Professional Conduct").

Your query[5] thus requires a determination that initially is to be made by Ms. Green and the State Bar of Texas. Moreover, questions about rules of professional conduct violations require an examination of all the facts in a particular circumstance and are not appropriate for an attorney general opinion. See Tex. Att'y Gen. Op. No. GA-0087 (2003) at 1 (recognizing that conflict of interest questions involve questions of fact). Therefore, we cannot resolve your questions about any appearance of impropriety or a conflict of interest under the rules of professional conduct. For the same reasons, we cannot evaluate the sufficiency of efforts taken by your office to ensure that Ms. Green's activities as assistant district attorney comport with the rules of professional conduct.

SUMMARY

The employment of a former district judge as an assistant district attorney, under the particular circumstances, does not violate constitutional and statutory provisions pertaining to dual office holding or conflicts of interest.

The professional conduct of attorneys is governed by the Texas Disciplinary Rules of Professional Conduct. Such rules include prohibitions against appearances of impropriety and conflicts of interest, but violations thereof are to be determined, in the first instance, by the attorney and the disciplinary arm of the Supreme Court of Texas and the State Bar of Texas. Moreover, questions about violations of the rules of professional conduct cannot be answered in an attorney general opinion because they involve considerations of fact.

Very truly yours,

GREG ABBOTT
Attorney General of Texas

KENT C. SULLIVAN
First Assistant Attorney General

NANCY S. FULLER
Chair, Opinion Committee

Charlotte M. Harper
Assistant Attorney General, Opinion Committee

Footnotes

[1] Letter from Honorable Craig Watkins, Dallas County Criminal District Attorney, to Honorable Greg Abbott, Attorney General of Texas, at 1 (Jan. 24, 2007) (on file with the Opinion Committee, also available at http://www.oag.state.tx.us) [hereinafter Request Letter].

[2] Questions regarding an appearance of impropriety or conflict of interest for judges are primarily governed by the Texas Code of Judicial Conduct. See TEX. CODE JUD. CONDUCT, reprinted in TEX. GOV'T CODE ANN., tit. 2, subtit. G app. B (Vernon 2005 & Supp. 2006). In the absence of any indication that Ms. Green is subject to assignment under chapter 74, Texas Government Code, we assume that she is no longer subject to the Code of Judicial Conduct. See id. Canons 6A, F (providing canons applicable to former judges subject to assignment); see also TEX. GOV'T CODE ANN. §§ 74.054(a)(3) (Vernon 2005) (providing for judicial assignment), 74.055(c) (prescribing eligibility requirements for judicial assignment, including certification of a "willingness not to appear and plead as an attorney in any court in this state for a period of two years"), 82.064(a) ("A judge . . . of . . . a district court . . . may not appear and plead as an attorney at law in any court of record in this state."). In the event Ms. Green is subject to the Code of Judicial Conduct, the State Commission on Judicial Conduct is responsible, in the first instance, for applying the judicial canons to specific conduct by judges. See TEX. CONST. art. V, § 1-a(2), (6)(A), (8); see also TEX. GOV'T CODE ANN. §§ 33.001-.051 (Vernon 2004) (pertaining to State Commission on Judicial Conduct).

[3] See Tilley v. Rogers, 405 S.W.2d 220, 224 (Tex. Civ. App.-Beaumont 1966, writ ref'd n.r.e.) (recognizing there is no distinction between "civil office" and "public office").

[4] The Texas Supreme Court has exclusive authority to regulate the practice of law in the State of Texas. See State Bar of Tex. v. Gomez, 891 S.W.2d 243, 245 (Tex. 1994); see also TEX. GOV'T CODE ANN. § 81.071 (Vernon 2005) (disciplinary jurisdiction over each attorney admitted to practice in the state). The State Bar of Texas is an arm of the judiciary created to assist in the regulation of the practice of law. See TEX. GOV'T CODE ANN. § 81.011 (Vernon 2005).

[5] You do not ask about any impropriety, conflict of interest, or violation of law regarding Ms. Green's tenure as district judge. See Request Letter, supra note 1, at 1-2. Thus, we do not consider any possible violation of provisions governing successive employment of state officers or adjudicatory officials. See TEX. GOV'T CODE ANN. § 572.054 (Vernon 2004); see also TEX. DISCIPLINARY R. PROF'L CONDUCT 1.11(b), reprinted in TEX. GOV'T CODE ANN., tit. 2, subtit. G app. A (Vernon 2005) (Tex. State Bar R. art. X, § 9).