Can a county attorney who prosecutes misdemeanors take paid employment as a special prosecutor in felony cases in the same county?

Plain-English summary

The inquiry asked whether it violates the Canons for a county attorney, charged with prosecuting misdemeanors in the justice and county courts, to also accept employment as a special prosecutor in felony cases in that county.

A majority concluded that if the county attorney has no duty to prosecute or assist the district attorney in prosecuting felony cases, it would not be unethical for him to accept employment as a special prosecutor in such cases. None of the members voting for that view expressed any opinion on whether the statutes contained such a prohibition. Three members called attention to existing statutes, and two of them referred to Article 26 of the Code of Criminal Procedure, which provides that in the district attorney's absence the county attorney shall represent the State alone, or when requested aid the district attorney in prosecuting cases for the State in the District Court. The headnote ties the conflicting-interests concern to Canon 6, and the vote was 5-3.

Currency note

This opinion was issued in 1956, under the former Texas Canons of Ethics, which the Texas Disciplinary Rules of Professional Conduct replaced effective January 1, 1990. The Code of Criminal Procedure provision the dissenting members cited has also been recodified since. Subsequent rule amendments or later opinions may have changed the analysis. Treat this page as historical context, not current guidance. Verify against current rules before relying on any specific rule, deadline, or requirement mentioned here.

Common questions

Q: Could a county attorney take paid felony special-prosecution work under this opinion?

A: A majority said yes, but only if the county attorney has no duty to prosecute or assist in prosecuting felony cases (5-3).

Q: Did the Committee decide whether a statute prohibits this?

A: No. The members voting for the majority view expressly took no position on whether any statute prohibited it; the opinion is limited to the Canons.

Q: What was the dissenting members' concern?

A: They pointed to existing statutes, two of them citing Article 26 of the Code of Criminal Procedure, under which the county attorney may have to represent the State or aid the district attorney in the District Court.

Background and rules framework

The opinion interprets former Texas Canon 6, the conflicting-interests provision of the Canons of Ethics of the State Bar of Texas, as applied to a county attorney taking on felony special-prosecution work. The opinion also references Article 26 of the Texas Code of Criminal Procedure. The modern analog is ABA Model Rule 1.7 (conflicts of interest).

Citations and references

Rules of Professional Conduct:

• MR 1.7 (conflicts of interest), as the modern analog
• Texas Canon 6 (conflicting interests)

Statutes:

• Texas Code of Criminal Procedure, Article 26 (county attorney's duty in the district attorney's absence), cited by dissenting members

See also

• TX Ethics Op. 132: District Attorney in a Law Firm
• TX Ethics Op. 137: A Prosecutor and a Represented Defendant
• TX Ethics Op. 143: Prosecutor Pressing a Civil Suit

Source

• Landing page: https://www.legalethicstexas.com/resources/opinions/opinion-126/
• Original PDF: https://tcle-web.s3.amazonaws.com/public/documents/Opinion_126.pdf

Original opinion text

Reproduced from the official source for research purposes. The linked source is authoritative.

QUESTION PRESENTED

Would it be a violation of the Canons of Ethics for a county attorney to accept employment as special prosecutor in felony cases at the same time he is acting as county attorney of that county and charged with the responsibility of prosecuting misdemeanors in the justice and county courts?

18 Baylor L. Rev. 245 (1966)

CONFLICTING INTERESTS - COUNTY ATTORNEY AS SPECIAL PROSECUTOR
The Canons do not prohibit a county attorney from accepting employment as special prosecutor in a felony case even though he is charged with the responsibility of prosecuting misdemeanors in that county.

Texas C.C.P.A.E. 26. Canon 6.

The committee is of the opinion that if the county attorney has no duty to prosecute or assist the district attorney in prosecuting felony cases, it would not be unethical for him to accept employment as special prosecutor in such cases. None of the members voting for this view expressed any opinion as to whether there was any such prohibition in the statutes.

Three members of the committee call attention to the effect of existing statutes and two of them refer to Article 26 of the Code of Criminal Procedure, which provides, among other things,

". . . and in the absence of the District Attorney, he shall represent the State alone, or when requested, shall aid the District Attorney in the prosecuting of any case in behalf of the State in the District Court . . ." (5-3)

Tex. Comm. On Professional Ethics, Op. 126 (1956)