Can a Texas justice of the peace who is a lawyer be appointed to represent criminal defendants on appeal?

TX AG Opinion GA-0651: Can a justice of the peace be appointed defense counsel on appeal?

Plain-English summary

The Upshur County Criminal District Attorney explained that a justice of the peace in his county, who is a licensed attorney, asked to be placed on the criminal appellate appointment list. He asked whether the justice could be appointed to represent criminal defendants in appellate proceedings, and raised concern about a conflict of interest given the justice's judicial role.

The opinion examined two statutes, the Code of Judicial Conduct, and the Disciplinary Rules of Professional Conduct. On the statutes, it found two reasons a justice of the peace may accept such an appointment. First, Government Code section 82.064 bars certain judicial and county officers (supreme court and appellate judges, district judges, sheriffs, and county judges or clerks within limits) from appearing as an attorney, but it does not mention justices of the peace, which by implication excludes them from the ban. A 1948 opinion had concluded a justice of the peace may practice law in any court except the justice court over which the justice presides. Second, Code of Criminal Procedure article 26.06 says no court may appoint an elected county, district, or state official to represent a criminal defendant unless the official has notified the court of availability, and lets such an official decline. The opinion concluded a justice of the peace who is an attorney is an "elected county official" for purposes of article 26.06, which both lets the justice decline and implicitly recognizes the authority to accept. So neither statute prohibits the appointment.

On the Code of Judicial Conduct, Canon 4G generally forbids a judge from practicing law except as permitted by statute or the Code, but Canon 6C(1)(d) excepts a justice of the peace who is an attorney, allowing the justice to practice law except in the justice's own court or in a proceeding in which the justice served as judge or any related proceeding. Because a justice court has no appellate jurisdiction, appellate work would not be in the justice's own court. On its face, Canon 6C(1)(d) appears to let a justice serve as appointed appellate counsel so long as the justice did not act as a lawyer in a proceeding in which the justice had served as judge. But the opinion stressed it could not finally resolve whether a particular appointment would violate the canons, because that turns on fact questions, and the State Commission on Judicial Conduct applies the canons in the first instance. The opinion found no Commission statement on a judge concurrently serving as appointed appellate counsel.

On the Disciplinary Rules of Professional Conduct, the opinion noted rules on conflicts of interest (Rule 1.06(b)(2)) and on a lawyer's prior service as a public officer or adjudicatory official (Rules 1.10(a) and 1.11(a)) could be relevant, but whether particular conduct violates them is again a fact question outside the opinion process; lawyers are subject to the discipline jurisdiction of the supreme court and the Commission for Lawyer Discipline. The opinion concluded that no statute bars the appointment, both statutes implicitly recognize it, but whether it can be done without violating the judicial canons or disciplinary rules is a fact-dependent question the office cannot decide.

Currency note

This opinion was issued in 2008. 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.

Government Code section 82.064, Code of Criminal Procedure article 26.06, and the Code of Judicial Conduct may have been amended since 2008. Confirm current law and the current canons before relying on this analysis.

Who this opinion affected (as of 2008)

Justices of the peace who are licensed attorneys: The opinion concluded no statute barred them from accepting appointment as appellate counsel for indigent defendants, but they remained bound by the judicial canons and disciplinary rules.

Courts maintaining appellate appointment lists: The opinion meant they could appoint such a justice, subject to the ethics limits and the justice's right to decline under article 26.06.

The State Commission on Judicial Conduct: The opinion recognized the Commission, not the Attorney General, applies the Code of Judicial Conduct to specific judicial conduct in the first instance.

Indigent criminal defendants: The opinion bears on who may be appointed to represent them on appeal, a constitutional entitlement to effective assistance of counsel.

Common questions

Can a justice of the peace who is a lawyer take court appointments to handle criminal appeals?
No statute prohibits it, the opinion concluded. Government Code section 82.064 does not list justices of the peace, and article 26.06 implicitly recognizes their authority to accept such appointments.

Doesn't the Code of Judicial Conduct stop a judge from practicing law?
Generally Canon 4G does, but Canon 6C(1)(d) excepts justices of the peace who are attorneys, except in the justice's own court or a proceeding in which the justice served as judge.

Is there a conflict of interest?
The opinion identified conflict-of-interest and prior-service disciplinary rules that could apply, but said whether a particular appointment violates them is a fact question it cannot resolve.

Who decides if a justice's conduct violates the canons?
The State Commission on Judicial Conduct applies the Code of Judicial Conduct to specific conduct in the first instance, the opinion explained, not the Attorney General.

Can the justice take appointments in the justice's own court?
No. Canon 6C(1)(d) bars a justice from practicing law in the justice's own court, but because justice courts have no appellate jurisdiction, appellate work is not in that court.

Background and statutory framework

An indigent defendant is entitled to effective assistance of counsel on appeal, and Texas statute entitles an eligible indigent defendant to appointed counsel for appeals and certain habeas matters (Yates v. State, 557 S.W.2d 115, 117 (Tex. Crim. App. 1977); Anders v. Cal., 386 U.S. 738 (1967); Douglas v. Cal., 372 U.S. 353 (1963); Eaden v. State, 161 S.W.3d 173, 175 (Tex. App.-Eastland 2005, no pet.); Tex. Code Crim. Proc. Ann. art. 1.051(d) (Vernon Supp. 2007)). A justice of the peace has constitutional criminal jurisdiction over fine-only misdemeanors and serves as a magistrate (Tex. Const. art. V, § 19; Tex. Gov't Code Ann. § 27.031(a) (Vernon Supp. 2007); Tex. Code Crim. Proc. Ann. arts. 2.09, 45.101 (Vernon 2006 & Supp. 2007); Tex. Gov't Code Ann. § 44.330(a)-(b) (Vernon 2004)). Government Code section 82.064 bars certain judges and officers from practicing law but does not mention justices of the peace, implying they are excluded from the ban (Tex. Gov't Code Ann. § 82.064(a)-(b) (Vernon 2005)). Code of Criminal Procedure article 26.06 lets an elected county, district, or state official decline a criminal appointment and implicitly recognizes authority to accept; a justice of the peace is an elected county official for this purpose (Tex. Code Crim. Proc. Ann. art. 26.06 (Vernon 1989); Williams v. State, 321 S.W.2d 72, 75 (Tex. Crim. App. 1958); Tex. Const. art. V, § 24; art. XVI, § 61(b); Crump v. State, 5 S.W. 182, 183 (Tex. Ct. App. 1887); Lane v. McLemore, 169 S.W. 1073, 1075 (Tex. Civ. App.-Galveston 1914, no writ); Chenault v. Bexar County, 782 S.W.2d 206, 209 (Tex. 1989); Harris County v. Stewart, 41 S.W. 650, 654 (Tex. 1897); Reynolds v. Tarrant County, 14 S.W. 580, 581 (Tex. 1890)). The Code of Judicial Conduct generally bars a judge from practicing law (Canon 4G) but excepts a justice of the peace who is an attorney, except in the justice's own court or a proceeding in which the justice served as judge (Tex. Code Jud. Conduct, Canons 1, 2A, 4A, 4G, 6C(1)(d)). The State Commission on Judicial Conduct applies the canons in the first instance (Tex. Const. art. V, § 1-a; Tex. Gov't Code Ann. §§ 33.002(a), 33.0211(a), 33.022(a), (c), (f), 33.023(a) (Vernon 2004)). The Disciplinary Rules on conflicts and prior public or adjudicatory service may also apply, and whether conduct violates them is a fact question; lawyers are subject to the discipline jurisdiction of the supreme court and the Commission for Lawyer Discipline (Tex. Disciplinary R. of Prof'l Conduct 1.06(b)(2), 1.10(a), 1.11(a); Tex. Gov't Code Ann. § 81.071 (Vernon 2005); Kaufman v. Comm'n for Lawyer Discipline, 197 S.W.3d 867, 872 (Tex. App.-Corpus Christi 2006)).

Citations

Statutes:

• Tex. Code Crim. Proc. Ann. arts. 1.051(d), 2.09, 26.06, 45.101 (Vernon 1989, 2006 & Supp. 2007)
• Tex. Gov't Code Ann. §§ 27.031(a), 44.330(a)-(b), 81.071, 82.064(a)-(b), 33.002(a), 33.0211(a), 33.022(a), (c), (f), 33.023(a) (Vernon 2004 & 2005, Supp. 2007)
• Tex. Const. art. V, §§ 19, 24, 1-a; art. XVI, § 61(b)
• Tex. Code Jud. Conduct, Canons 1, 2A, 4A, 4G, 6C(1)(d)
• Tex. Disciplinary R. of Prof'l Conduct 1.06(b)(2), 1.10(a), 1.11(a)

Cases:

• Yates v. State, 557 S.W.2d 115, 117 (Tex. Crim. App. 1977)
• Anders v. Cal., 386 U.S. 738 (1967)
• Douglas v. Cal., 372 U.S. 353 (1963)
• Eaden v. State, 161 S.W.3d 173, 175 (Tex. App.-Eastland 2005, no pet.)
• Williams v. State, 321 S.W.2d 72, 75 (Tex. Crim. App. 1958)
• Crump v. State, 5 S.W. 182, 183 (Tex. Ct. App. 1887)
• Lane v. McLemore, 169 S.W. 1073, 1075 (Tex. Civ. App.-Galveston 1914, no writ)
• Chenault v. Bexar County, 782 S.W.2d 206, 209 (Tex. 1989)
• Harris County v. Stewart, 41 S.W. 650, 654 (Tex. 1897)
• Reynolds v. Tarrant County, 14 S.W. 580, 581 (Tex. 1890)
• Kaufman v. Comm'n for Lawyer Discipline, 197 S.W.3d 867, 872 (Tex. App.-Corpus Christi 2006)

Source

• Landing page: https://www.texasattorneygeneral.gov/opinions/greg-abbott/ga-0651
• Original PDF: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/2008/ga0651.pdf

Original opinion text

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

ATTORNEY GENERAL OF TEXAS

GREG ABBOTT

July 29, 2008

The Honorable Billy W. Byrd
Upshur County Criminal District Attorney
405 North Titus Street
Gilmer, Texas 75644

Opinion No. GA-0651

Re: Whether a justice of the peace who is an attorney may be appointed to represent criminal defendants in appellate proceedings (RQ-0674-GA)

Dear Mr. Byrd:

You state that a justice of the peace in your county, who is a licensed attorney, has requested that he be put on the Criminal Appellate Appointment List. You ask whether the justice may be appointed to represent criminal defendants in appellate proceedings. See Request Letter, supra note 1, at 1.

Under both the Texas and United States constitutions, "an indigent defendant is entitled to the effective assistance of counsel on appeal." Yates v. State, 557 S.W.2d 115, 117 (Tex. Crim. App. 1977) (citing Anders v. Cal., 386 U.S. 738 (1967); Douglas v. Cal., 372 U.S. 353 (1963); McMahon v. State, 529 S.W.2d 771 (Tex. Crim. App. 1975); Currie v. State, 516 S.W.2d 684 (Tex. Crim. App. 1974); Hawkins v. State, 515 S.W.2d 275 (Tex. Crim. App. 1974)); Eaden v. State, 161 S.W.3d 173, 175 (Tex. App.-Eastland 2005, no pet.) (citing Yates). Under Texas statute,

[a]n eligible indigent defendant is entitled to have the trial court appoint an attorney to represent him in the following appellate and postconviction habeas corpus matters:

(1) an appeal to a court of appeals;

(2) an appeal to the Court of Criminal Appeals if the appeal is made directly from the trial court or if a petition for discretionary review has been granted;

(3) a habeas corpus proceeding if the court concludes that the interests of justice require representation; and

(4) any other appellate proceeding if the court concludes that the interests of justice require representation.

TEX. CODE CRIM. PROC. ANN. art. 1.051(d) (Vernon Supp. 2007).

As you point out, the Texas Constitution provides justice of the peace courts with "original jurisdiction in criminal matters of misdemeanor cases punishable by fine only ... and such other jurisdiction as may be provided by law." TEX. CONST. art. V, § 19; see Request Letter, supra note 1, at 2; see also TEX. GOV'T CODE ANN. § 27.031(a) (Vernon Supp. 2007) (adding to a justice of the peace court's constitutional jurisdiction). You state that a justice of the peace also serves as a magistrate and, as such, "has the duty to advise accused persons of rights, [issue warrants of] arrest, set[] and tak[e] bail bond[s], receiv[e] complaints, [and] appoint[] attorneys." Request Letter, supra note 1, at 2; see TEX. CODE CRIM. PROC. ANN. art. 2.09 (Vernon Supp. 2007) (listing justices of the peace as magistrates within the meaning of the Code of Criminal Procedure); Hart v. State, 15 Tex. App. 202, 1883 WL 8999, at *16 (Tex. Ct. App. 1883) (stating that when a justice of the peace sits for the purpose of inquiring into a criminal accusation against a person, the justice sits as a magistrate in an examining court). You further note that Upshur County prosecutions are conducted in justice court by the Upshur County Criminal District Attorney, who also represents the state in appeals from justice-court decisions "[e]xcept as provided by law." TEX. CODE CRIM. PROC. ANN. art. 45.101 (Vernon 2006); Request Letter, supra note 1, at 2; TEX. GOV'T CODE ANN. § 44.330(a)-(b) (Vernon 2004) (requiring the Upshur County Criminal District Attorney to "exclusively represent the state in all criminal matters before" the courts inferior to the district courts of the county and providing the criminal district attorney with "all the powers, duties and privileges ... that are conferred by law on county ... attorneys").

You question, in essence, whether an attorney who is a justice of the peace is an appropriate individual to serve as appointed counsel to a criminal defendant in an appeal. You are primarily concerned that the concurrent holding of positions as justice of the peace and a court-appointed appellate attorney will create "a conflict of interest," and you cite in particular the Code of Judicial Conduct. Request Letter, supra note 1, at 1. We analyze your question by examining two statutes, the Code of Judicial Conduct, and the Texas Disciplinary Rules of Professional Conduct.

I. Statutes

Two statutes appear to suggest that a justice of the peace may accept an appointment to represent a criminal defendant at the appellate level. First, Government Code section 82.064, which bars certain judicial and county officers from appearing as an attorney in a case, does not mention justices of the peace and thus, by implication, suggests that justices of the peace are excluded from the ban. See TEX. GOV'T CODE ANN. § 82.064 (Vernon 2005). Under section 82.064:

(a) A judge or clerk of the supreme court, the court of criminal appeals, a court of appeals, or a district court, or a sheriff may not appear and plead as an attorney at law in any court of record in this state.

(b) A county judge or county clerk who is licensed to practice law may not appear and practice as an attorney at law in any county or justice court except in cases over which the court in which the judge or clerk serves has neither original nor appellate jurisdiction.

Id. § 82.064(a)-(b); see also State Bar Committee on the Interpretation of Canons of Ethics, Opinion 13 (1948) (determining that, under Government Code section 82.064's statutory predecessor and cases construing the same, a county judge may practice law within specified limits). This office concluded in 1948 that because no constitutional or statutory provision, including the statutory predecessor to section 82.064(b), prohibited a justice of the peace from practicing law, the justice may "practice law in any court in the State except the justice court over which he presides." Tex. Att'y Gen. Op. No. V-556 (1948) at 1-2.

Second, because, as we conclude below, a justice of the peace is an elected county official for purposes of article 26.06 of the Code of Criminal Procedure, article 26.06 implicitly authorizes the justice to accept an appointment to represent a defendant in a criminal case. See TEX. CODE CRIM. PROC. ANN. art. 26.06 (Vernon 1989). Article 26.06 limits the circumstances in which an elected county official, among others, may be appointed to represent a defendant in a criminal proceeding:

No court may appoint an elected county, district or state official to represent a person accused of crime, unless the official has notified the court of his availability for appointment. If an official has notified the court of his availability and is appointed as counsel, he may decline the appointment if he determines that it is in the best interest of his office to do so. Nothing in this Code shall modify any statutory provision for legislative continuance.

Id.; see also Williams v. State, 321 S.W.2d 72, 75 (Tex. Crim. App. 1958) (construing the statutory predecessor to article 26.06 to "relieve a lawyer who is an elected county official from the duty of accepting [an] appointment, but [not to] preclude his serving if he chooses to do so").

The term "elected county official" has not been defined in Texas by statute, by a court, or by this office. In our opinion, the phrase is synonymous with "elected county officer." A justice of the peace is an elected county officer for some purposes, but an elected precinct officer for other purposes. For example, article V, section 24 of the Texas Constitution provides for the removal of county officers, including justices of the peace. See TEX. CONST. art. V, § 24; see also Crump v. State, 5 S.W. 182, 183 (Tex. Ct. App. 1887, no writ) (stating that a justice of the peace is a county officer for purposes of article V, section 24 as well as several statutes); cf. Lane v. McLemore, 169 S.W. 1073, 1075 (Tex. Civ. App.-Galveston 1914, no writ) (stating that a justice of the peace, whose functions are confined to the justice's county, is "commonly known and called" a county officer). By contrast, article XVI, section 61(b) of the constitution, which provides for commissioners courts to determine whether precinct officers should be paid on a fee or salary basis, indicates that justices of the peace are precinct officers. See TEX. CONST. art. XVI, § 61(b); see also Chenault v. Bexar County, 782 S.W.2d 206, 209 (Tex. 1989) (referring to a justice of the peace as a precinct officer); cf. Harris County v. Stewart, 41 S.W. 650, 654 (Tex. 1897) (stating that when the territorial limits of a justice of the peace's authority are considered, a justice of the peace is a precinct officer). In 1890 the Texas Supreme Court indicated that whether the term "county officer" encompasses a particular position, such as a justice of the peace, depends upon a consideration of the context and intent of the statute at issue:

The words 'county officers' are terms very loosely used in our laws, and to them no very well-defined meaning is assigned. They may mean an officer who is elected solely by the voters of the county, or one who has the power to exercise the functions of his office throughout the entire county. It may also be applied to those whose duties are confined to a particular subdivision of the county as contradistinguished from those whose functions extend to every part of the state. It follows that, in order to determine the sense in which the words are used in any particular statute, we must look to the context as well as to the reason and spirit of the law.

Reynolds v. Tarrant County, 14 S.W. 580, 581 (Tex. 1890).

Consistently with the Texas Supreme Court's directive to ascertain the context of and reason for the statute, we consider article 26.06's legislative history, which suggests that the Legislature intended the term "elected county official" to be construed expansively. The Legislature enacted the substance of article 26.06 relative to elected county officials in 1951 because "the business and affairs of numerous counties throughout the State are seriously impaired and affected by the practice of appointing elective county officials to represent defendants in criminal cases." Act of May 23, 1951, 52d Leg., R.S., ch. 408, § 2, 1951 Tex. Gen. Laws 752, 752. The Legislature's stated concern for the timely performance of county business suggests that the Legislature intended the statute to be broadly construed to include, at the county level, any elected officer who conducts county business that could be impaired if the officer were appointed to represent an indigent criminal defendant.

We conclude that the phrase "elected county official" in article 26.06 encompasses justices of the peace who are attorneys. Consequently, article 26.06 authorizes a justice of the peace to decline an appointment to represent a criminal defendant but also implicitly recognizes the justice's authority to accept such an appointment. Cf. Williams, 321 S.W.2d at 75 (construing the statutory predecessor to article 26.06 to "relieve a lawyer who is an elected county official from the duty of accepting such appointment, but not [to] preclude his serving if he chooses to do so").

In sum, neither Government Code section 82.064 nor Code of Criminal Procedure article 26.06 prohibits a justice of the peace from accepting an appointment to represent an indigent criminal defendant at the appellate level. Indeed, both implicitly recognize the justice's authority to do so. As you suggest, however, ethical rules of conduct may apply.

II. Code of Judicial Conduct

Based on the principle that "[a]n independent and honorable judiciary is indispensable to justice in our society," the Code of Judicial Conduct provides "high standards of conduct" by which all judges' conduct is measured. TEX. CODE JUD. CONDUCT, Canon 1, reprinted in TEX. GOV'T CODE ANN. tit. 2, subtit. G app. B (Vernon 2005). Canon 4G of the Code specifically forbids a judge to "practice law except as permitted by statute or this Code." Id. Canon 4G. Other canons broadly require a judge to act in a manner that will inspire public confidence in the judiciary generally and in the judge's individual capacity to act as a judge. Canon 2A, for example, requires a judge to "act at all times in a manner that promotes public confidence in the integrity and impartiality of the judiciary." Id. Canon 2A. Canon 4A requires a judge to conduct all "extra-judicial activities so that they do not: (1) cast reasonable doubt on the judge's capacity to act impartially as a judge; or (2) interfere with the proper performance of judicial duties." Id. Canon 4A.

Canon 6C requires a justice of the peace to comply with all provisions of the Code of Judicial Conduct, but excepts certain provisions-most of which are not relevant here-from applicability. See id. Canon 6C(1). In particular, Canon 6C(1)(d) excepts a justice of the peace who is an attorney from Canon 4G's prohibition on the practice of law "except practicing law in the court on which he or she serves, or acting as a lawyer in a proceeding in which he or she has served as a judge or in any proceeding related thereto." Id. Canon 6C(1)(d).

You suggest that Canon 6C(1)(d) of the Code of Judicial Conduct may allow a justice of the peace to act as a lawyer "except in a proceeding in which [the justice] has served as a Judge or in any proceeding related thereto." Id.; see Request Letter, supra note 1, at 2. We read Canon 6C(1)(d) similarly. By generally excepting justices of the peace from Canon 4G, we understand Canon 6C(1)(d) to permit justices of the peace who are attorneys to practice law without the need for express authority to do so under statute or the Code of Judicial Conduct. See TEX. CODE JUD. CONDUCT, Canons 4G, 6C(1)(d), reprinted in TEX. GOV'T CODE ANN. tit. 2, subtit. G app. B (Vernon 2005). Canon 6C(1)(d) does not permit a justice of the peace to act as a lawyer in a proceeding in which the justice served as judge or in any proceeding related to a proceeding in which the justice served as judge. Id. Canon 6C(1)(d). Canon 6C(1)(d) on its face appears to recognize that a justice may serve as appointed counsel for a criminal defendant in the appellate process so long as the justice does not act "as a lawyer in a proceeding in which he or she has served as a judge or in any proceeding related thereto." Id.

Nevertheless, this office cannot finally resolve whether a justice of the peace will violate the canons of judicial conduct by accepting an appointment to represent a criminal defendant in a particular appellate proceeding. This office cannot resolve fact questions. See Tex. Att'y Gen. Op. No. GA-0446 (2006) at 18 ("Questions of fact are not appropriate to the opinion process."). Moreover, the State Commission on Judicial Conduct (the "Commission") is responsible in the first instance for applying the judicial canons to specific judicial conduct. See TEX. CONST. art. V, § 1-a(2), (6)(A), (8) (creating the Commission and authorizing it to investigate alleged willful violations of the Code of Judicial Conduct, among other things); accord TEX. GOV'T CODE ANN. §§ 33.002(a), .0211(a), .022(a), (c), (f), .023(a) (Vernon 2004); Tex. Att'y Gen. Op. No. GA-0551 (2007) at 2. We find no Commission statement on a judge's concurrent service as a court-appointed attorney representing a criminal defendant in the appeals process.

III. Disciplinary Rules of Professional Conduct

Although you do not cite the Texas Disciplinary Rules of Professional Conduct, they may be relevant also. Cf. TEX. CODE JUD. CONDUCT, Preamble, reprinted in TEX. GOV'T CODE ANN. tit. 2, subtit. G app. B (Vernon 2005) (stating that the Code of Judicial Conduct is not "exhaustive" and that judges "should also be governed in their judicial and personal conduct by general ethical standards"). The Disciplinary Rules have been adopted to provide high standards of ethical conduct for all members of the State Bar of Texas. See STATE BAR RULES art. II, § 3, reprinted in TEX. GOV'T CODE ANN. tit. 2, subtit. G app. A (Vernon 2005); TEX. DISCIPLINARY R. OF PROF'L CONDUCT, Preamble, reprinted in TEX. GOV'T CODE ANN. tit. 2, subtit. G app. B (Vernon 2005).

For example, Rule 1.06(b)(2) generally prohibits a lawyer from representing a person if the representation "reasonably appears to be or become adversely limited by the lawyer's ... responsibilities to another client or to a third person or by the lawyer's ... own interests." TEX. DISCIPLINARY R. OF PROF'L CONDUCT 1.06(b)(2), reprinted in TEX. GOV'T CODE ANN. tit. 2, subtit. G app. A (Vernon 2005). Rule 1.10(a) prohibits a lawyer from "represent[ing] a private client in connection with a matter in which the lawyer participated personally and substantially as a public officer, unless the appropriate government agency consents after consultation" and "[e]xcept as law may otherwise expressly permit." Id. R. 1.10(a). And Rule 1.11(a) prohibits a lawyer from "represent[ing] anyone in connection with a matter in which the lawyer has passed upon the merits or otherwise participated personally and substantially as an adjudicatory official ... unless all parties to the proceeding consent after disclosure." Id. R. 1.11(a).

Whether particular conduct violates these or any other rules of professional conduct is a question requiring the resolution of fact questions and cannot be decided by this office. See Tex. Att'y Gen. Op. No. GA-0446 (2006) at 18 ("Questions of fact are not appropriate to the opinion process."); see also TEX. GOV'T CODE ANN. § 81.071 (Vernon 2005) ("Each attorney admitted to practice in this state ... is subject to the disciplinary and disability jurisdiction of the supreme court and the Commission for Lawyer Discipline, a committee of the state bar."); Kaufman v. Comm'n for Lawyer Discipline, 197 S.W.3d 867, 872 (Tex. App.-Corpus Christi 2006), cert. denied, 128 S. Ct. 331 (2007) (noting the jurisdiction of the supreme court and the Commission for Lawyer Discipline).

SUMMARY

Neither Government Code section 82.064 nor Code of Criminal Procedure article 26.06 prohibits a justice of the peace who is an attorney from accepting an appointment to represent an indigent criminal defendant at the appellate level, and both implicitly recognize the justice's authority to do so.

Nevertheless, the justice also is subject to the Code of Judicial Conduct and the Texas Disciplinary Rules of Professional Conduct. Whether a justice of the peace may be appointed to represent criminal defendants in appellate proceedings without violating the Code of Judicial Conduct or the Disciplinary Rules of Professional Conduct is a question requiring the resolution of fact issues and cannot be determined by this office.

KENT C. SULLIVAN
First Assistant Attorney General

ANDREW WEBER
Deputy Attorney General for Legal Counsel

NANCY S. FULLER
Chair, Opinion Committee

Kymberly K. Oltrogge
Assistant Attorney General, Opinion Committee