Does a county ethics code apply to the district attorney and their staff in Texas?

Plain-English summary

Chapter 161 of the Local Government Code lets a handful of large Texas border counties set up a county ethics commission, which then adopts an ethics code that governs "county public servants." El Paso County created such a commission and adopted the El Paso County Code of Ethics. The El Paso County Attorney asked whether that code reaches the District Attorney of the 34th Judicial District and the people who work in that office.

The Attorney General split the answer. The chapter 161 definition of "county public servant" includes "an attorney at law ... when participating in the performance of a governmental function." Read literally, that phrase could sweep in any lawyer doing any government work anywhere, but the chapter as a whole applies only to a specific county, so the Attorney General read the "attorney at law" category to mean an attorney performing a county governmental function. A district attorney, and the lawyers the district attorney employs, are attorneys at law; so when and to the extent they perform a county governmental function, they fall within the ethics code. The opinion did not try to catalog which specific activities count as a county governmental function, since chapter 161 does not define that term.

The non-attorney staff came out differently. They are not attorneys, so the "attorney at law" category does not reach them. And they are not "county employees" either, because a district attorney, not the county, employs the office's personnel (even though the county helps fund the office and approves salary levels). So the non-attorney staff of the District Attorney are not subject to the county ethics code.

Currency note

This opinion was issued in 2011. Subsequent statutory amendments, court decisions, or later Attorney General 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.

What the opinion meant for those who asked

The District Attorney and the office's attorneys (as the opinion held for them): The opinion concluded they were "county public servants" subject to the El Paso County Code of Ethics when and to the extent they participated in the performance of a county governmental function, because the chapter 161 definition includes an attorney at law performing such a function.

The non-attorney staff of the District Attorney (what the opinion held for them): The opinion concluded they were not subject to the code. They are not attorneys at law, and they are not county employees under chapter 161 because the district attorney, not the county, employs them.

On what counts as a "county governmental function" (what the opinion declined to detail): Because chapter 161 does not define "governmental function," the opinion declined to list all activities that might qualify, limiting itself to the rule that the code applies when an attorney participates in a county governmental function.

Common questions

Is a district attorney subject to a county ethics code in Texas?
The opinion concluded a district attorney is, but only when and to the extent the district attorney participates in the performance of a county governmental function, because the chapter 161 definition of "county public servant" includes attorneys at law performing such functions.

Are the assistant prosecutors in the office covered too?
The opinion concluded the attorneys the district attorney employs are covered on the same terms as the district attorney, when they perform a county governmental function.

What about the office's non-attorney employees, like investigators or clerks?
The opinion concluded they are not subject to the code. They are not attorneys at law, and they are employed by the district attorney rather than by the county, so they are not county employees under chapter 161.

Why did employment by the district attorney matter?
The opinion explained that although the county funds the office and approves salary levels, a district attorney employs the office's staff, so non-attorney staff are not "county employees" for purposes of chapter 161.

Background and statutory framework

Chapter 161 of the Local Government Code applies only to a county with a population of 650,000 or more that is located on the international border and had a county ethics board before September 1, 2009. Tex. Loc. Gov't Code Ann. § 161.001. The commissioners court of such a county may create a county ethics commission, id. § 161.051(a) (West Supp. 2010), which must adopt, publish, and enforce an ethics code governing county public servants, id. § 161.101(a) (West Supp. 2010); see also Tex. Att'y Gen. Op. No. GA-0817 (2010) at 1-2. El Paso County created the El Paso County Ethics Commission, which adopted the El Paso County Code of Ethics.

The code applies to "county public servants," a term chapter 161 defines to include, among others, "an attorney at law or notary public when participating in the performance of a governmental function." Tex. Loc. Gov't Code Ann. § 161.002(8)(C) (West Supp. 2010). In construing the statute, the Attorney General applied the rule that the goal is to give effect to the Legislature's intent, drawn from the plain meaning of the words used and read in context. Hernandez v. Ebrom, 289 S.W.3d 316, 318 (Tex. 2009); State v. Shumake, 199 S.W.3d 279, 284 (Tex. 2006); Entergy Gulf States, Inc. v. Summers, 282 S.W.3d 433, 437 (Tex. 2009) (citing Fleming Foods of Tex., Inc. v. Rylander, 6 S.W.3d 278, 284 (Tex. 1999)); City of Waco v. Kelley, 309 S.W.3d 536, 542 (Tex. 2010). Although the "attorney at law" language read in isolation could reach any attorney in any jurisdiction, chapter 161 applies only to a specified county, so the Attorney General construed subsection 161.002(8)(C) to refer to an attorney participating in a county governmental function.

On that reading, when and to the extent a district attorney or an attorney employed by a district attorney participates in a county governmental function, that attorney is subject to the chapter 161 ethics code. The non-attorney staff are different. They are not attorneys at law, so subsection 161.002(8)(C) does not reach them, and they are not county employees because they are employed by the district attorney. A footnote noted that although a county provides some funds for a district attorney's office and has authority over salary levels, see Tex. Gov't Code Ann. § 41.106(a) (West 2004); id. § 41.101, a district attorney employs the office's staff, see id. § 41.102(a) (West Supp. 2010); State ex rel. Hill v. Pirtle, 887 S.W.2d 921, 929 (Tex. Crim. App. 1994).

Citations

Statutes:

• Tex. Loc. Gov't Code Ann. § 161.001
• Tex. Loc. Gov't Code Ann. § 161.051(a) (West Supp. 2010)
• Tex. Loc. Gov't Code Ann. § 161.101(a) (West Supp. 2010)
• Tex. Loc. Gov't Code Ann. § 161.002(8)
• Tex. Loc. Gov't Code Ann. § 161.002(8)(C) (West Supp. 2010)
• Tex. Gov't Code Ann. § 41.106(a) (West 2004)
• Tex. Gov't Code Ann. § 41.101
• Tex. Gov't Code Ann. § 41.102(a) (West Supp. 2010)

Cases:

• Hernandez v. Ebrom, 289 S.W.3d 316, 318 (Tex. 2009)
• State v. Shumake, 199 S.W.3d 279, 284 (Tex. 2006)
• Entergy Gulf States, Inc. v. Summers, 282 S.W.3d 433, 437 (Tex. 2009)
• Fleming Foods of Tex., Inc. v. Rylander, 6 S.W.3d 278, 284 (Tex. 1999)
• City of Waco v. Kelley, 309 S.W.3d 536, 542 (Tex. 2010)
• State ex rel. Hill v. Pirtle, 887 S.W.2d 921, 929 (Tex. Crim. App. 1994)

AG opinions referenced:

• Tex. Att'y Gen. Op. No. GA-0817 (2010)

Source

• Landing page: https://www.texasattorneygeneral.gov/opinions/greg-abbott/ga-0831
• Original PDF: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/2011/ga0831.pdf

Original opinion text

Best-effort transcription from the official PDF. Minor extraction artifacts were corrected; the linked PDF is authoritative.

ATTORNEY GENERAL OF TEXAS
GREG ABBOTT

January 4, 2011

The Honorable Jo Anne Bernal Opinion No. GA-0831
El Paso County Attorney
500 East San Antonio, Room 503 Re: Whether chapter 161 of the Local
El Paso, Texas 79901 Government Code is applicable to the District
Attorney of the 34th Judicial District and staff
(RQ-0865-GA)

Dear Ms. Bernal:

You seek our opinion on two questions involving provisions of the Local Government Code[1] authorizing certain counties to create a county ethics commission. See TEX. LOC. GOV'T CODE ANN. §§ 161.001 (providing that chapter 161 is applicable only to a county with a population of 650,000 or more, that is located on the international border, and that had a county ethics board before September 1, 2009), 161.051(a) (West Supp. 2010) (authorizing a county commissioners court to create, by order, a county ethics commission); see also Tex. Att'y Gen. Op. No. GA-0817 (2010) at 1-2 (discussing chapter 161). Section 161.101 requires a county ethics commission created under chapter 161 to "adopt, publish, and enforce an ethics code governing county public servants." TEX. LOC. GOV'T CODE ANN. § 161.101(a) (West Supp. 2010). You tell us that the El Paso County Commissioners Court has created the El Paso County Ethics Commission (the "Commission"), and indicate that the Commission has adopted the El Paso County Code of Ethics. Request Letter at 1 (referring to the "El Paso County Code of Ethics"); Brief at 1. You inquire whether the District Attorney of the 34th Judicial District ("District Attorney"), and his or her staff, are subject to the El Paso County Code of Ethics. See Request Letter at 1; Brief at 1.

A county ethics code adopted under chapter 161 is applicable to "county public servants." TEX. LOC. GOV'T CODE ANN. § 161.101(a) (West Supp. 2010). Chapter 161 defines a "county public servant" to mean

a person elected, selected, appointed, employed, or otherwise designated as one of the following ... :

(A) a county officer or county employee;

(B) a person appointed by the commissioners court or a county officer to a position on one of the following, whether the position is compensated or not:

(i) an authority, board, bureau, commission, committee, council, department, district, division, or office of the county; or

(ii) a multi-jurisdictional board;

(C) an attorney at law or notary public when participating in the performance of a governmental function;

(D) a candidate for nomination or election to an elected county office; or

(E) a person who is performing a governmental function under a claim of right although the person is not legally qualified or authorized to do so.

Id. § 161.002(8). You pose the question of whether a district attorney could be subject to a chapter 161 county ethics code under subsection 161.002(8)(C) as a "person elected, selected, appointed, employed, or otherwise designated" as "an attorney at law or notary public when participating in the performance of a governmental function." Brief at 3; see TEX. LOC. GOV'T CODE ANN. § 161.002(8)(C) (West Supp. 2010). We therefore limit our analysis to a construction of subsection 161.002(8)(C).

The cardinal rule in construing statutes is "to ascertain and give effect to the Legislature's intent." Hernandez v. Ebrom, 289 S.W.3d 316, 318 (Tex. 2009). When possible, courts discern that intent from the plain meaning of the words used in the statute. State v. Shumake, 199 S.W.3d 279, 284 (Tex. 2006). "This general rule applies unless enforcing the plain language of the statute as written would produce absurd results." Entergy Gulf States, Inc. v. Summers, 282 S.W.3d 433, 437 (Tex. 2009) (citing Fleming Foods of Tex., Inc. v. Rylander, 6 S.W.3d 278, 284 (Tex. 1999)). The meaning of statutory language is considered in context, not in isolation. City of Waco v. Kelley, 309 S.W.3d 536, 542 (Tex. 2010).

Subsection 161.002(8)(C) includes within its definition of a "county public servant" an "attorney at law ... when participating in the performance of a governmental function." TEX. LOC. GOV'T CODE ANN. § 161.002(8)(C) (West Supp. 2010). On its face, the language of subsection 161.002(8)(C) could be read to include any attorney at law in any state or federal jurisdiction performing any governmental function. See id. However, chapter 161 applies to only a county as specified. See id. § 161.001 ("This chapter applies only to a county that ....") (emphasis added). Given that focus, subsection 161.002(8)(C) is appropriately viewed as having the same county limitation such that it refers to the performance of a county governmental function. We therefore construe subsection 161.002(8)(C) to refer to an attorney at law when participating in the performance of a county governmental function.

Absent a definition of "governmental function" in chapter 161, we cannot speculate on all of the various activities that may constitute a county governmental function. We can, however, advise you that when and to the extent a district attorney or an attorney employed by a district attorney participates in the performance of a county governmental function, he or she would be subject to a code of ethics adopted pursuant to chapter 161.

With respect to the non-attorney staff of a district attorney, because they are not attorneys at law, they are not within the scope of "county public servant" under subsection 161.002(8)(C). In addition, the non-attorney members of the staff are not "county employees" under chapter 161 because they are employed by the district attorney.[2] Accordingly, members of the staff of a district attorney are not themselves subject to a code of ethics enacted under chapter 161.

In sum, the District Attorney of the 34th Judicial District and his or her attorneys would be subject to the El Paso County Code of Ethics when and to the extent that they participate in the performance of a county governmental function. The non-attorney staff members of the District Attorney are not subject to the El Paso County Code of Ethics.

SUMMARY

A county ethics code adopted under chapter 161, Local Government Code, applies to "county public servants." The term county public servant includes attorneys at law when participating in the performance of a county governmental function. Accordingly, when and to the extent the District Attorney of the 34th Judicial District and his or her attorneys participate in the performance of a county governmental function, they are county public servants subject to the El Paso County Code of Ethics. Because they are not county public servants, the non-attorney staff members of the District Attorney are not subject to the El Paso County Code of Ethics.

DANIEL T. HODGE
First Assistant Attorney General

DAVID J. SCHENCK
Deputy Attorney General for Legal Counsel

NANCY S. FULLER
Chair, Opinion Committee

Charlotte M. Harper
Assistant Attorney General, Opinion Committee

[1] Request Letter at 1 [hereinafter Request Letter], and attached brief at 1 [hereinafter Brief] (available at http://www.texasattorneygeneral.gov).

[2] We recognize that generally a county provides some funds for the operation of a district attorney's office and has some monetary authority over the salaries of a district attorney's personnel. See TEX. GOV'T CODE ANN. § 41.106(a) (West 2004) (providing that a district attorney fixes the salaries of his or her personnel subject to the approval of the commissioners court of the county or counties composing the district), id. § 41.101 (defining "prosecuting attorney" to include a district attorney). For purposes of chapter 161, however, we believe that a district attorney employs his or her staff. See id. § 41.102(a) (West Supp. 2010) ("A prosecuting attorney may employ ....") (emphasis added); see State ex rel. Hill v. Pirtle, 887 S.W.2d 921, 929 (Tex. Crim. App. 1994) (recognizing, despite county's funding obligations, district attorney's authority over hiring and employing of office personnel).