Can a Texas assistant district or county attorney also work as a criminal defense lawyer in federal court or a neighboring county?

TX AG Opinion GA-0716: Can an assistant prosecutor also do criminal defense work?

Plain-English summary

The Cameron County District and County Attorney asked whether an assistant county or assistant district attorney may lawfully and ethically practice as a criminal defense attorney in federal court and in the state courts of a neighboring county. The starting point was article 2.08 of the Code of Criminal Procedure, which says district and county attorneys "shall not be of counsel adversely to the State in any case, in any court."

The opinion explained that an assistant prosecuting attorney is not automatically subject to the same statutory disqualifications as the elected official who appoints them. An earlier opinion had read article 2.08 not to reach an attorney appointed county attorney pro tem under article 2.07, reasoning that the Legislature could have written the statute to cover that person but did not. Applying the same logic, the Legislature could have written article 2.08 to reach assistant county and assistant district attorneys, and again did not. So article 2.08 does not bar an assistant from defending criminal cases in federal court or in a neighboring county.

The Attorney General then flagged two real limits. Government Code section 46.005 bars a county prosecutor and any assistant from the private practice of law when, counting all state and county funds, the assistant's salary equals or exceeds 80 percent of the benchmark salary. And the Texas Disciplinary Rules of Professional Conduct, specifically Rule 1.06 (conflicts of interest) and Rule 1.10 (limits on moving between government and private employment), counsel against this kind of representation. The opinion stressed that questions of professional conduct must ultimately be addressed to the State Bar's Committee on Professional Ethics, not the Attorney General.

Currency note

This opinion was issued in 2009. 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 salary figures, benchmark calculation, and disciplinary rules described here may have changed since 2009. Confirm the current statutes and disciplinary rules before relying on them.

Who this opinion affected (as of 2009)

Assistant county and district attorneys: The opinion concluded that article 2.08's bar on being counsel against the State did not extend to them by its terms, so the statute alone did not prohibit outside criminal defense work in federal court or another county's courts.

Counties paying assistants near the benchmark salary: The opinion noted that section 46.005 of the Government Code barred outside private practice once an assistant county attorney's combined state and county salary hit 80 percent of the benchmark, so pay level controlled whether the side practice was allowed.

Lawyers weighing the ethics: The opinion pointed to disciplinary Rules 1.06 and 1.10 as cautionary, and said the binding answer on professional conduct comes from the State Bar's Committee on Professional Ethics.

Common questions

Does the law ban an assistant DA from taking defense cases?
Not by the conflict statute itself, the opinion said. Article 2.08 names district and county attorneys, not their assistants, so it did not bar an assistant from defending criminal cases in federal court or a neighboring county.

Why doesn't the rule for the elected attorney cover the assistant?
The opinion reasoned that the Legislature knew how to write the disqualification broadly but chose not to name assistants, just as an earlier opinion found it did not reach a county attorney pro tem under article 2.07.

Is there any salary level that does block it?
Yes. The opinion explained that section 46.005 of the Government Code barred private practice when an assistant county attorney's combined state and county salary reached 80 percent of the benchmark salary.

Who decides the ethics question for sure?
The opinion said inquiries about professional conduct must be addressed to the State Bar's Committee on Professional Ethics, citing disciplinary Rules 1.06 and 1.10 as relevant cautions.

Background and statutory framework

Article 2.08 of the Code of Criminal Procedure provides that "[d]istrict and county attorneys shall not be of counsel adversely to the State in any case, in any court" (Tex. Code Crim. Proc. Ann. art. 2.08 (Vernon 2005)). Government Code section 41.102 lets a prosecuting attorney employ assistants, and section 41.101 defines "prosecuting attorney" as a county, district, or criminal district attorney (Tex. Gov't Code Ann. §§ 41.102(a) (Vernon Supp. 2008), 41.101 (Vernon 2004)). Although an assistant may perform the duties imposed on the prosecuting attorney and must meet the same qualifications (id. §§ 41.103(b), 45.002(a)), the opinion held that the assistant is not automatically subject to the same statutory disqualifications, relying on the pro tem analysis in Tex. Att'y Gen. Op. No. GA-0241 (2004) and the rule that words are added to a statute only to give effect to clear legislative intent (Fitzgerald v. Adv. Spine Fixation Sys., Inc., 996 S.W.2d 864, 867 (Tex. 1999)). The two limits are section 46.005, barring private practice when a county prosecutor or assistant earns 80 percent or more of the benchmark salary, with "county prosecutor" defined in section 46.001(1) (Tex. Gov't Code Ann. §§ 46.005(a), (c), 46.001(1) (Vernon Supp. 2008)), and disciplinary Rules 1.06 and 1.10, with ethics inquiries directed to the Committee on Professional Ethics under sections 81.091-.092 (id. §§ 81.091-.092 (Vernon 2005)).

Citations

Statutes:

• Tex. Code Crim. Proc. Ann. arts. 2.08, 2.07 (Vernon 2005)
• Tex. Gov't Code Ann. §§ 41.102(a) (Vernon Supp. 2008), 41.101 (Vernon 2004), 41.103(b), 45.002(a), 46.005(a), (c), 46.001(1) (Vernon Supp. 2008), 81.091-.092 (Vernon 2005)
• Tex. Disciplinary R. Prof'l Conduct 1.06 cmt. 4, 1.10 cmt. 1

Cases:

• Fitzgerald v. Adv. Spine Fixation Sys., Inc., 996 S.W.2d 864, 867 (Tex. 1999)

Source

• Landing page: https://www.texasattorneygeneral.gov/opinions/greg-abbott/ga-0716
• Original PDF: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/2009/ga0716.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

June 1, 2009

The Honorable Armando R. Villalobos
Cameron County District and County Attorney
Cameron County Courthouse
974 East Harrison Street
Brownsville, Texas 78520

Opinion No. GA-0716

Re: Whether an assistant county or assistant district attorney may lawfully and ethically practice as a criminal defense attorney in federal court and in the state courts of a neighboring county (RQ-0754-GA)

Dear Mr. Villalobos:

You ask whether an assistant county or assistant district attorney may lawfully and ethically practice as a criminal defense attorney in federal court and in the state courts of a neighboring county.[1] A provision of the Code of Criminal Procedure provides in relevant part that "[d]istrict and county attorneys shall not be of counsel adversely to the State in any case, in any court." TEX. CODE CRIM. PROC. ANN. art. 2.08 (Vernon 2005).

Section 41.102 of the Government Code permits a "prosecuting attorney" to "employ . . . assistant prosecuting attorneys." TEX. GOV'T CODE ANN. § 41.102(a) (Vernon Supp. 2008). A "prosecuting attorney" is defined as "a county attorney, district attorney, or criminal district attorney." Id. § 41.101 (Vernon 2004). An "assistant prosecuting attorney may perform all duties imposed by law on the prosecuting attorney," and the qualifications required of an assistant county attorney "are the same as for the county attorney who appoints him." Id. §§ 41.103(b), 45.002(a). It does not necessarily follow, however, that an assistant prosecuting attorney is subject to the same statutory disqualifications as an actual county, district, or criminal district attorney.

In a prior opinion, we construed article 2.08 of the Code of Criminal Procedure to mean that that statute's disqualification does not apply to an individual appointed to serve as a county attorney pro tem under article 2.07. Tex. Att'y Gen. Op. No. GA-0241 (2004) at 4. That opinion noted that "[a]lthough the Legislature could have written article 2.08 to also apply to an attorney appointed pro tem, it did not do so. We may 'add words into a statutory provision only when necessary to give effect to clear legislative intent.'" Id. (citing Fitzgerald v. Adv. Spine Fixation Sys., Inc., 996 S.W.2d 864, 867 (Tex. 1999)). Likewise, the Legislature could have written article 2.08 to apply to assistant county and assistant district attorneys, but it did not do so. As a result, we conclude that article 2.08 does not prohibit an assistant county or assistant district attorney from practicing as a criminal defense attorney in federal court or in the state courts of a neighboring county.

On the other hand, section 46.005 of the Government Code prohibits a "county prosecutor" and any assistant of a prosecutor from engaging in the "private practice of law" if, "from all state and county funds received, the county prosecutor or assistant receives a salary that is equal to or more than 80 percent of the benchmark salary." TEX. GOV'T CODE ANN. § 46.005(a), (c) (Vernon Supp. 2008). The term "county prosecutor" applies to a "constitutional county attorney who does not have general felony jurisdiction and who is not a state prosecutor." Id. § 46.001(1).[2] Thus, under the limited circumstances of section 46.005 of the Government Code, an assistant county attorney is statutorily barred from simultaneously practicing as a criminal defense attorney in federal court or in the state courts of a neighboring county.

With regard to ethical considerations, Rules 1.06 and 1.10 of the Texas Disciplinary Rules of Professional Conduct provide some cautionary warnings. A comment to Rule 1.06(b), the general rule for conflict of interest, warns that "[l]oyalty to a client is impaired not only by the representation of opposing parties . . . but also in any situation when a lawyer may not be able to consider, recommend or carry out an appropriate course of action for one client because of the lawyer's own interests or responsibilities to others." TEX. DISCIPLINARY R. PROF'L CONDUCT 1.06 cmt. 4, reprinted in TEX. GOV'T CODE ANN. tit. 2, subtit. G app. A (Vernon 2005) (TEX. STATE BAR R. art. X, § 9). See State Bar Ethics Comm. Op. No. 419 (1984) (construing prior rule regarding county attorney's conflict of interest). A comment to Rule 1.10, which limits successive government and private employment, declares that "[t]his Rule prevents a lawyer from exploiting public office for the advantage of a private client." Id. 1.10 cmt. 1. Inquiries regarding questions of professional conduct for attorneys should be addressed to the Committee on Professional Ethics. See TEX. GOV'T CODE ANN. §§ 81.091-.092 (Vernon 2005).

SUMMARY

Article 2.08 of the Code of Criminal Procedure does not prohibit an assistant county or assistant district attorney from practicing as a criminal defense attorney in federal court or in the state courts of a neighboring county, although, under certain circumstances, section 46.005 of the Government Code bars such practice by an assistant county attorney. Rules 1.06 and 1.10 of the Texas Disciplinary Rules of Professional Conduct caution against any such representation of a private client, although such inquiries must ultimately be addressed to the Committee on Professional Ethics.

Very truly yours,

ANDREW WEBER
First Assistant Attorney General

JONATHAN K. FRELS
Deputy Attorney General for Legal Counsel

NANCY S. FULLER
Chair, Opinion Committee

Rick Gilpin
Assistant Attorney General, Opinion Committee

[Footnote 1: Request Letter (available at http://www.texasattorneygeneral.gov).]

[Footnote 2: The section is also not applicable to an assistant county prosecutor under certain other narrow circumstances. See TEX. GOV'T CODE ANN. § 46.005(c)-(e) (Vernon Supp. 2008).]